VTMM and Child Support Registrar (Child support second review)
[2021] AATA 1405
•20 May 2021
VTMM and Child Support Registrar (Child support second review) [2021] AATA 1405 (20 May 2021)
Division:GENERAL DIVISION
File Number: 2020/3865
Re:VTMM
APPLICANT
AndChild Support Registrar
RESPONDENT
AndBMFB
OTHER PARTY
DECISION
Tribunal:Senior Member P J Clauson AM
Date:20 May 2021
Place:Brisbane
The decision under review is affirmed
………….[SGD].............................
Senior Member P J Clauson AM
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
CHILD SUPPORT – percentage of care – where Tribunal could not be satisfied of change in care – where change in care not substantiated – where witness evidence did not disclose basis for witness knowledge – decision affirmed
Legislation
Child Support (Registration) Act 1988
Child Support (Assessment) Act 1989
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Secondary Materials
Guides to Social Policy Law – Child Support Guide, Department of Social Services
(version 4.56)REASONS FOR DECISION
Senior Member P J Clauson AM
20 May 2021
This matter concerns the care of a child (“Child J”), presently aged 10, as shared by the Applicant (Child J’s mother) and the Other Party (Child J’s father). The Applicant seeks a review of a decision by the Social Security and Child Support Division of this Tribunal (the “AAT1”) in relation to the amount of care shared by the parents of Child J.
A child support case was registered in respect of Child J on 14 November 2011.[1]
[1] Exhibit 1, T-Documents, T21, 169.
Between 21 December 2015 and 30 June 2018, the Applicant was assessed as having 86% of care and the Other Party 14% of care of the child (the “existing care percentage determination”).[2]
[2] Exhibit 1, T-Documents, T2, 171.
On 14 May 2019, the Applicant advised the Child Support Registrar (the “Respondent”) that a change had occurred in the actual care of the child as from 1 July 2018.[3] The advice was that the Applicant now held 89% of care and the Other Party 11% of care as from 1 July 2018.
[3] Exhibit 1, T-Documents, T4, 26.
The Respondent, on 30 May 2019, contacted the Other Party to discuss the change of care as advised by the Applicant.[4] The Other Party advised that he did not have his documents to hand, and would respond to the Respondent within seven days. No subsequent response was received within that timeframe.
[4] Exhibit 1, T-Documents, T4, 27.
The Respondent made a new care determination on 25 June 2019 which determined that the Applicant had 89% care and the Other Party had 11% of care (the “new care percentage decision”).[5]
[5] Exhibit 1, T-Documents, T6, 31.
On 16 July 2019, the Other Party, by telephone, objected to this decision. He further lodged a written objection form on 7 January 2020.[6] The Applicant provided a verbal response to the objection on 20 January 2020.[7]
[6] Exhibit 1, T-Documents, T7, 47.
[7] Exhibit 1, T-Documents, T13, 59.
The Other Party’s objection was disallowed by an objections officer on 6 March 2020 and the new care percentage decision was affirmed (“objection decision”).[8]
[8] Exhibit 1, T-Documents, T16, 72.
The Other Party then sought review of this decision by an application to the AAT1 on 1 April 2020.[9] The hearing of that application took place on 15 May 2020 by telephone with the Other Party. The Applicant was invited to join those proceedings but did not elect to do so.[10] The AAT1 set aside the objection decision and in substitution decided not to record a change in care from 1 July 2018.[11]
[9] Exhibit 1, T-Documents, T17, 91.
[10] Exhibit 1, T-Documents, T2, 8.
[11] Exhibit 1, T-Documents, T2, 7.
The Applicant in these proceedings applied for a review of that decision on 15 June 2020.[12]
[12] Exhibit 1, T-Documents, T1, 1.
A hearing in this matter was held on 16 December 2020. The Applicant and Other Party both appeared on their own behalf, whilst Ms Gillian Gehrke appeared for the Respondent. In addition to documents provided by the parties and exhibited, the Tribunal heard oral evidence from the Applicant and the Other Party after they were each affirmed.
The evidence was initially intended to be heard by MS Teams, however that medium was abandoned because of intervening technical issues. The matter was completed using a telephone hearing process, during which connection issues were intermittently experienced.
ISSUES FOR DETERMINATION
The issues for the Tribunal to determine in this matter are:
(a)Whether there was a change in care in relation to Child J from 1 July 2018;
(b)If so, whether the Tribunal must make a change to the percentage of care allocation in relation to Child J;
(c)If the Tribunal is not required to make a change to the percentage of care allocation in relation to Child J, whether it should exercise discretion to make a change to the percentage of care allocation in relation to Child J; and
(d)If the care allocation is changed, from what date that change occurred.
LEGISLATIVE FRAMEWORK
The Tribunal is empowered under s 96A(b) of the Child Support (Registration and Collection) Act 1988 to review the decision of the AAT1. That section provides:
96A Application for AAT second review
An application may be made to the AAT for review (AAT second review) of the following decisions of the AAT:
(a)a decision under section 92 to refuse an extension application;
(b)a decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision;
(c)a decision under subsection 95N(2) to make, or not to make, a determination.
Section 55C of the Child Support (Assessment) Act 1989 provides that:
55C Working out cost percentages
A parent’s or non‑parent carer’s cost percentage for a child for a day in a child support period is the percentage worked out using the table based on the parent’s or non‑parent carer’s (as the case requires) percentage of care for the child for the day.
Cost percentages Item Column 1
Percentage of care
Column 2
Cost percentage
1 0 to less than 14% Nil 2 14% to less than 35% 24% 3 35% to less than 48% 25% plus 2% for each percentage point over 35% 4 48% to 52% 50% 5 more than 52% to 65% 51% plus 2% for each percentage point over 53% 6 more than 65% to 86% 76% 7 more than 86% to 100% 100%
The Tribunal notes that, in accordance with the Child Support (Assessment) Act 1989 (Cth), consequences attend a change in care of Child J, including a potential change to the cost percentages for the care of Child J as outlined above. The Tribunal must consider, in turn, the following provisions of that Act if it is satisfied that a change in care occurred:
54GDetermination must be revoked if there is less than regular care etc.
(1)If:
(a)a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and
(b)the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c)a determination of the other responsible person’s percentage of care for the child has been made under section 50; and
(d)the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;
the Registrar must revoke both determinations.
Note:The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).
(2)The revocation of each determination takes effect:
(a)if the first responsible person never established a pattern of care in accordance with the first care determination—at the beginning of the application day for that determination; or
(b)if the first responsible person established a pattern of care in accordance with the first care determination but later ceased the established pattern of care—at the end of the day before the day on which the person ceased the previously established pattern of care.
(3)To avoid doubt, a responsible person never establishes a pattern of care if:
(a)the responsible person could not have established the pattern of care until a particular period that occurs later in a child support period; and
(b)the responsible person does not establish that pattern during that particular period.
54FDetermination must be revoked if there is a change to the responsible person’s cost percentage
(1)The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:
(a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and
(b)the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and
(c)section 54G does not apply; and
(d)subsection (2) applies in relation to the individual.
Note:The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2)This subsection applies in relation to a responsible person if:
(a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(c)all of the following apply:
(i)section 51 did apply in relation to the responsible person;
(ii)the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;
(iii)an interim period does not currently apply in relation to the earlier determination;
(iv)the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note:For when section 51 does not apply, see section 53.
(3)The revocation of the determination takes effect at the end of:
(a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or
(b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i)the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii)the responsible person’s care of the child has reduced—the day before the change of care day.
54HRegistrar may revoke a determination of a responsible person’s percentage of care
(1)The Registrar may revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:
(a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and
(b)the Registrar is satisfied that, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person’s percentage of care for the child, the other percentage would not be the same as the person’s existing percentage of care for the child; and
(c)sections 54F, 54FA and 54G do not apply; and
(d)subsection (2) applies in relation to the individual.
Note:The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2)This subsection applies in relation to a responsible person if:
(a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(c)all of the following apply:
(i)section 51 did apply in relation to the responsible person;
(ii)the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;
(iii)an interim period for the earlier determination does not currently apply;
(iv)the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note:For when section 51 does not apply, see section 53.
(3)The revocation of the determination takes effect at the end of:
(a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or
(b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i)the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii)the responsible person’s care of the child has reduced—the day before the change of care day.
WAS THERE A CHANGE IN CARE IN RELATION TO CHILD J FROM 1 JULY 2018?
The Applicant contends that there was a change of care in relation to Child J from 1 July 2018. A consequence of her contention is that, if a change in care occurred, the Tribunal should determine a new care percentage in accordance with the provisions outlined above. The Applicant contends that the Applicant had 89% of Child J’s care, whilst the Other Party had 11% of Child J’s care.
The Other Party contends that there was no change of care in relation to Child J from 1 July 2018. A consequence of his contention is that, if no change occurred, the Tribunal should affirm the decision of the AAT1 that the Applicant had 86% of Child J’s care, whilst the Other Party had 14% of Child J’s care.
The Respondent made no contentions in relation to this case. The Respondent considers that its role is to assist the Tribunal in coming to the correct or preferable decision by making submissions as to the correct statutory approach, whilst remaining silent on factual contentions. Such an approach is appropriate in the circumstances.
Method by Which the Percentage of Care is Established
The Tribunal has had regard to the Guides to Social Policy Law – Child Support Guide, Department of Social Services (version 4.56) (the “Guide”), which provides guidance for how care should be assessed under the relevant legislative instruments. The Guide assists in the interpretation of how the Act should be, and consistently is, applied. It is, of course, not compulsory for the Tribunal to follow the guide, but as Brennan J (as he then was) reflected in Drake, documents such as the Guide should be followed unless there is some compelling reason not to.[13] As a general principle, consistency in decision making will ensure that like matters are treated similarly, which promotes just and reasonable outcomes.
[13] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).
In determining whether care exists, the Guide reflects (at 2.2.1) that the decision maker should have regard to a care period. Whilst a care period is typically a 12-month period, it is open to a decision maker to consider a period other than 12 months in appropriate circumstances.
The Tribunal considers that an assessment of the period 1 July 2018 to 14 May 2019
(the “assessment period”) is an appropriate period to consider. It is sufficiently lengthy to allow an assessment of the overall care of Child J as reported by the Applicant to the Respondent on 14 May 2019, and also allows for a full assessment of the veracity of the Applicant’s advice to the Respondent on 14 May 2019.
Assessing the Care of Child J
In establishing the pattern of care throughout the Assessment Period, the Tribunal considers, as a starting point, the agreement between the Applicant and the Other Party as to the care of Child J. It was common ground that an agreement existed between those parties – the Applicant maintained that the Other Party failed to meet obligations under the agreement, and the Other Party maintained that he had met them.
The Tribunal therefore starts from the position that it will assess the care as agreed between the parties, before considering whether it can be satisfied on the available evidence that there was a deviation from that agreement by the Other Party. The agreement, as varied over time by the parties, can be summarised as follows:
(a)The Other Party was to have care of Child J for weekends on a weekly basis, which continued until 30 September 2018;
(b)The Other Party was to have care of Child J for weekends, on a fortnightly basis on an ongoing basis from 30 September 2018 onwards; and
(c)The Applicant was to have care of Child J at all other times.
It remains for the Tribunal to assess whether the Other Party failed to care for Child J consistently with the agreement between the parents; and if not, to determine what care of Child J actually took place.
The Evidence
The Applicant gave evidence that it was agreed by her and the Other Party that he would have care of Child J every weekend (equal to 104 nights per year) in or around September 2017.[14] That arrangement appears to have continued until 30 September 2018, when the parties had a disagreement and the Other Party’s care changed to a fortnightly basis.[15] The Applicant stated that the disagreement arose as a result of the Other Party returning Child J after a very short time (she asserted two hours) and this confused Child J. She further complained that there had been inconsistent care provided by the Other Party.
[14] Exhibit 1, T-Documents, T8, 52.
[15] Exhibit 1, T-Documents, T19, 118.
The Applicant further gave evidence that the Other Party would, from 1 July 2018 onwards, ring, email or send her text messages as to why he could not have care of Child J. She contended that this was for various reasons, including that he had a bike ride, was working and that he “always had an excuse for care not to occur”. She lodged a Change in Care Notification in May 2019, as she contended that she was not receiving adequate NDIS and that what she was receiving did not cover all the child’s medical costs and that she would have to get loans to cover those. She stated that she had no motor vehicle. She contended that she needed the correct care percentage recorded on the assessment to be able to financially support Child J.[16]
[16] Exhibit 1, T-Documents, T13, 59.
The Applicant provided other evidence which consisted of an NDIS plan for Child J, in addition to copies of text messages between the Applicant and Other Party relating to care periods and seeking approval for alternative arrangements at those times when the Other Party had calendar clashes with his periods of care.[17] Included in this bundle of material was the Federal Circuit Court Order dated 20 August 2015.[18] The Tribunal notes that the text messages relate principally to the Other Party advising the days upon which he was unable to have Child J, but clearly indicate that he was asking for suitable alternative days to be nominated by the Applicant.
[17] Exhibit 1, T-Documents, T14, 61-70.
[18] Exhibit 1, T-Documents, T14, 69-70.
The Tribunal also notes the earlier file note of an employee of the Respondent dated 14 May 2019 in which it is recorded that the Applicant told the Respondent that the Other Party:
“has not taken [Child J] fortnightly for two days as per Orders, nor has he taken him for 3 weeks over Christmas or Easter.”
and:
“[the Other Party) has had [Child J] 1 night in May and has no intention of spending any time with him, let alone overnight access.”
and:
“Last year he was at [the Other Party’s house] for a total of 33 nights and to date – this financial year [Child J] has only spent 29 days in his fathers (sic) care.”
The NDIS plan includes apparent advice from the Applicant, inter alia, that:
“[Child J] visits his Dad on some weekends.”
and:
“Some Saturdays [Child J] goes to his dad’s place and visits his grandparents and cousins.”[19]
[19] Exhibit 1, T-Documents, T14, 62.
In an assessment of the material supplied by the Applicant, the Tribunal is unable to conclude that it adds much weight to the Applicant’s contention that there has been a change in the percentage of care for the Other Party from 14% to 11%. To the largest extent, the evidence in this material consists of unsubstantiated assertions made by the Applicant. The NDIS plan and file note of the Respondent record statements made by the Applicant to other people. They go no further than to substantiate that the Applicant said those things at an earlier time.
The assertions are, to a large extent, of a self-serving nature. The text messages actually note that the Other Party was in fact seeking cooperation with the Applicant to make alternative arrangements where necessary. The Other Party, in those text messages, exhibited a general sense of wanting to maintain the care arrangements for Child J, subject to some adjustment. There is nothing arising from the material in the NDIS plan and text messages to provide any helpful support for the proposition that a change in care did occur on 1 July 2018.
The Tribunal also notes that the Applicant sought to explain a discrepancy that she said existed in the material, where she had apparently stated differing numbers of nights of care for Child J as recorded in a file note dated 14 May 2019.[20] The Tribunal does not draw any adverse inference as to the discrepancy, and accepts that the employee of the Respondent may not have correctly understood the Applicant’s comment that day.
[20] Exhibit 1, T-Documents, T4, 26.
There is no material, even in the form of diary entries, to substantiate missed periods and made-up periods relating to the Other Party’s care. The fact that the Applicant was able to justify to the Respondent that the Other Party had taken a precise number of nights of care should indicate some level of records exist, and that she relies upon them. Unfortunately, no such records were forthcoming.
The AAT1 considered the Applicant’s original statement of 14 May 2019 that the Other Party had provided 29 nights of care during the period 1 July 2018 to 14 May 2019 was not supported by any records to substantiate her claim, nor were any records subsequent to that claim forthcoming. However, this Tribunal has before it three documents authored by other witnesses which were not available to the AAT1, which the Applicant relied upon to support her contention that a change of care had occurred on 1 July 2018. The Tribunal considers each of them in turn.
The Statement of Witness A
The statement of Witness A dated 26 August 2020 states that she is a qualified individual support worker and professional cleaner. In her role, she provided cleaning services and support work for the Applicant and her children. She states that she would attend the Applicant’s residence on a weekly basis every Wednesday from 8am until 12 noon. She would carry out cleaning activities and would sometimes take Child J for a swimming lesson between 11am and 12 noon. She would also take another of the Applicant’s children to a Pilates class and dietician’s appointment each Tuesday night. She states that over the time she worked at the household, she developed a strong friendship with these three parties.[21]
[21] Exhibit 6.
Witness A states that:
“To my knowledge, [Child J] rarely spent time with this father, I am aware that [Child J] spent a week in January with his father (unknown dates).”
It is unclear from Witness A’s statement how she came to that understanding. Her statement indicates that she typically provided services on a Tuesday night and Wednesday, but the Other Party claims (and, to the extent the Applicant concedes that some care by the Other Party took place, the Applicant accepts) that he cared for Child J primarily from Friday night to Sunday afternoon. Without more to demonstrate how Witness A came to her knowledge, it is difficult for the Tribunal to conclude that this portion of Witness A’s statement is of much probative value.
Witness A further states that she had to look after Child J for a day on 17 January 2020 when the Applicant had a day surgery procedure because:
“[The Applicant] had told me that [Child J]’s dad refused to have him after they had initially agreed for him to have [Child J].”[22]
[22] Exhibit 6.
Putting aside, for a moment, that Witness A relies on the Applicant correctly stating that position, such a refusal (if one occurred) would not have been unreasonable. The text messages exchanged between the Other Party and the Applicant on that date (a Friday) would indicate that the Other Party was working that day and asked if he could pick Child J up as he was leaving work then, at 5.19pm. The Applicant’s reply at 5.20pm was “no problem”.
The ongoing arrangement for the care of Child J was that the Applicant would care for him until Friday afternoons on those days the Other Party was due to take care. It is certainly open to the parties to come to other arrangements (the text messages reveal that they often worked collaboratively in adjusting schedules), but the fact that the Applicant was undertaking day surgery is not a reason for the Other Party to have been compelled to care for Child J. The Applicant, rightly, found an alternative carer for Child J when neither parent was available.
The Tribunal also acknowledges that Witness A’s comment is based upon what the Applicant has told her. It may well be the case that the Applicant asked the Other Party if he could look after Child J while she attended surgery, but he was working and thus declined the request. Even if the statement was accurate, it still does not reflect a time when the Other Party was supposed to care for Child J under the ongoing care arrangement that formed the basis of the Existing Care Percentage Determination. This observation is therefore of limited assistance to the Tribunal in attempting to establish if a change in percentage of care has occurred.
The final comment in Witness A’s statement regarding her being told that Child J’s cold had been contracted whilst camping with his father does no more than confirm, albeit by way of hearsay, that Child J had been camping with his father over a weekend in or around February 2020.
For the reasons outlined above, Witness A’s statement is thus of limited value for the purposes of this review.
The Statement of One of the Applicant’s Children
Similarly, the statement of one of the Applicant’s children (a stepbrother of Child J), is of little assistance. The comments contained in the statement are somewhat nebulous and non-specifically detailed. The statement refers to a period in December 2017 (outside the scope of the reviewable decision), as well as a holiday in July 2019 that Applicant and her children took to the Victorian snowfields. Even if, as the statement suggests, the Other Party planned to attend the trip and then later did not attend, that does not provide utility in determining the percentage of care that the Other Party had. The statement is therefore unhelpful for the purposes of this review.
The Statement of Witness B
The Applicant also filed a Statutory Declaration from Witness B who, it seems, is a friend of the Applicant’s. She states that she often visits the Applicant and speaks daily to her and the children. She indicates that she cares for Child J on occasion when the Applicant has appointments. Her statement also contains assertions that the Other Party cancels scheduled weekends or texts or calls to cancel or is being held-up “for an extra hour or two”. This might provide support for the Applicant’s contention, but it is unclear how Witness B came to understand those facts. The events described, albeit in vague terms, may well have taken place to the witness’ own knowledge, but without specificity, provides little support for the Applicant’s contention of a meaningful change in the Other Party’s percentage of care.
The Tribunal finds that none of these statements provide any significant corroboration of the Applicant’s contention that a change in the percentage of care as claimed had occurred. In addition, the Tribunal did not have these deponents called as witnesses to give oral evidence before it in support of their written assertions, and to attest their actual knowledge of the Applicant’s contentions.
The Other Party’s Care Calendar
The Other Party told the Tribunal that he had placed everything he wanted to before the AAT1 earlier and was relying upon that material and his submissions previously made. The Other Party’s submissions were made under oath to the AAT1 that prior to 13 July 2018. He gave evidence before the AAT1 that he had provided two nights of care per fortnight and by way of a mediated agreement two nights of care per week until September 2018 when he once more returned to providing two nights care per fortnight. He also referred this Tribunal to the care calendar he had filed and relied upon as the principle guiding document for his care arrangements subject to agreed adjustments.[23]
[23] Exhibit 1, T-Documents, T19, page 117.
The Other Party had provided to the AAT1 and again relied upon, in this Tribunal, a copy of the care calendar which set out the particular nights that he had care of Child J. He advised the Tribunal that he generally had care of Child J every second weekend and that on occasion, such as work Christmas parties or other events, he would arrange make-up periods in place of the usual arrangements which had been changed.
Ordinarily, a care calendar might not have been particularly helpful to the Tribunal, except in narrowing the contentions between the parties. However, the Other Party also supplied to the Tribunal a range of text messages which substantially support his contention that he had care of Child J on particular relevant dates. The text messages substantially support the proposition that, at least in respect of the dates for which the Other Party provided text messages, Child J spent a period of approximately 5pm Friday to approximately 5pm on Sunday in the care of the Other Party. There are, as might be expected, times or intervening events which changed the arrangement in a minor way (for example, where Child J wanted to go home early, or was late returning), but the larger pattern remains relatively undisturbed. The corroborating nature of the text messages for the Financial Year 2018-2019 can be summarised as follows:
Nights with Care of Child J as alleged by Other Party Summary of Relevant Evidence
10/08/2018 – 11/08/2018 Text message referring to the Other Party’s weekend with Child J and asking when the Applicant wishes for Child J to be returned.[24] 17/08/2018 – 18/08/2018 Text message from Other Party indicating that he would be late to pick up Child J.[25] 07/09/2018 – 08/09/2018 Text message from Other Party indicating he would be late to pick up Child J, with the Applicant indicating “no worries”.
Text exchange where the Other Party offered to return Child J early in case the Applicant wanted to do something special with Child J, and the Applicant declining.[26]
26/10/2018 – 27/10/2018 Text message from the Other Party asking “can we pick up his other shoe on our way”, implying that the Other Party had care for Child J at that time.[27] 09/11/2018 – 10/11/2018 Text message from Applicant asking “Maccas or mine”, to which the Other Party replied “I can pick him up from yours to save you driving”. [28] 23/11/2018 – 24/11/2018 Text message from the Other Party asking “What time will you be back this arvo, just planning out our arvo”. The Applicant replied “6”.[29] 07/12/2018 – 08/12/2018 Text message from the Applicant stating “Behind the tree with the spade”.[30]
Text message from the Other Party stating “I had a great weekend with [Child J] and you confirmed he was good Sunday night”.[31]
04/01/2019 – 05/01/2019 Text message from the Other Party stating “Lost time at the gym. Leaving [location] now sorry”. The Applicant responded with “No stress”.[32] 11/01/2019 – 12/01/2019 Text message from the Other Party updating the Applicant that it was likely he would return Child J after 5:30pm, and offering to cancel part of his plans if the Applicant wanted.
The Applicant responded “No you guys have fun I pulled his bed apart and I’m cleaning out his room”.[33]
15/02/2019 – 16/02/2019 Text message from the Applicant asking the Other Party to not “forget to be here by 4pm today”.
A series of text messages indicating that Child J would be returned at approximately 4:30pm.[34]
01/03/2019 – 02/03/2019 A series of text messages between the Applicant and Other Party in which they arranged for Child J stay with the Other Party except for a period of work on Saturday 2 March 2019.[35] 08/03/2019 A text message from the Applicant at 7am on 8 March 2019, indicating that she was “up when [the Other Party was] ready”.
A text message from the Other Party confirming that [Child J] had just finished breakfast, that they would get ready and arrive soon.[36]
15/03/2019 – 16/03/2019 A text message from the Other Party stating “on my way boy, yew”.
Another text message from the Other Party stating “we are just packing up see you soon”.[37]
22/03/2019 – 23/03/2019 A text exchange between the Applicant and the Other Party discussing when Child J should be returned and whether he had already had dinner.[38] 29/03/2019 – 30/03/2019 A text message from the Other Party indicating that he intended to go camping with Child J again, and asking whether he could collect Child J early on the afternoon of Friday 29 March 2019.
A text exchange between the parties confirming whether the Other Party could return Child J a little late after bathing him. The Applicant replied “no problem”.[39]
12/04/2019 Text message from the Other Party stating that he was giving Child J a bath and would then return him.[40] 26/04/2019 – 27/04/2019 A text message from the Other Party stating “just packing the ute and will be straight over”.
A text exchange indicating that Child J wished to go home at 3:02pm, and confirming that the Applicant was ready for Child J to return.[41]
31/05/2019 – 01/06/2019 A text message from the Other Party indicating that a toy of Child J’s was still with the Other Party and the Applicant requesting the Other Party return it.[42] 21/06/2019 – 22/06/2019 A text message from the Other Party indicating that he was stuck in traffic and would proceed directly to the Applicant’s house, but that he was not sure how long it would take.[43] [24] Exhibit 1, T-Documents, T19, 120.
[25] Exhibit 1, T-Documents, T19, 121.
[26] Exhibit 1, T-Documents, T19, 122-123.
[27] Exhibit 1, T-Documents, T19, 124.
[28] Exhibit 1, T-Documents, T19, 125.
[29] Exhibit 1, T-Documents, T19, 126.
[30] Exhibit 1, T-Documents, T19, 126.
[31] Exhibit 1, T-Documents, T19, 127.
[32] Exhibit 1, T-Documents, T19, 128.
[33] Exhibit 1, T-Documents, T19, 128.
[34] Exhibit 1, T-Documents, T19, 130.
[35] Exhibit 1, T-Documents, T19, 131-132.
[36] Exhibit 1, T-Documents, T19, 133.
[37] Exhibit 1, T-Documents, T19, 134.
[38] Exhibit 1, T-Documents, T19, 135.
[39] Exhibit 1, T-Documents, T19, 136-7.
[40] Exhibit 1, T-Documents, T19, 138.
[41] Exhibit 1, T-Documents, T19, 139.
[42] Exhibit 1, T-Documents, T19, 140.
[43] Exhibit 1, T-Documents, T19, 141.
The Other Party, in providing his Care Calendar, indicated that he had text messages which corroborated his care on 22 September 2018, 28 September 2018 and 10 May 2019, but the text messages provided do not appear to provide support for those dates.
The Tribunal accepts that it cannot be safely said that the text messages above provide support for the proposition that the Other Party cared for Child J on each of those occasions outlined above. In some instances, the Tribunal has before it only an indication that the Other Party collected Child J from the Applicant, and no corroborating record indicating when Child J was returned. The Applicant complains that the Other Party returned Child J early on several occasions, and the text messages do not necessarily neutralise that complaint.
The Other Party’s Care Calendar also includes references to other periods in which the Other Party claims to have cared for Child J, including on dates which were representative of an agreement reached at mediation and dates pursuant to a court order. However, there is no corroborating evidence to determine that the Other Party had care for Child J on those dates. There is, at most, an unsubstantiated assertion that care took place by the Other Party.
Notwithstanding those caveats, the Other Party provided a care calendar that reflects that he cared for Child J on 65 nights (or 17% of the year). He also provided substantial evidence that corroborated, at least in part, his contentions. It is to be expected that the parties will not have evidence for every single collection and return of Child J. Nonetheless, the Other Party was able to provide substantial support that he complied with the agreement for the care of Child J. Conversely, the Applicant did not provide any specific evidence of times where the Other Party had abrogated his care obligations. In the absence of specific recorded instances of abrogation of the Other Party’s care periods as alleged by the Applicant, the Tribunal is not able to define a change in care from 1 July 2018.
ASSESSMENT OF THE EVIDENCE
The Applicant relied upon various text messages between the Other Party and herself that were before the Tribunal and which she claimed indicated the Other Party’s failures to meet the care obligations. It is the view of the Tribunal that these texts, in reality, in addition to showing the Other Party was seeking some form of alternative accommodation, also indicated his requests in most part for another period to meet the arrangements. The applicant was unable to provide specific care periods where the Other Party had failed to meet a make-up arrangement.
The Applicant provided two statements and a Statutory Declaration from third parties previously outlined herein. The Tribunal finds these documents of little probative value in attempting to establish the foundation of the applicant’s claim of a change in care from 1 July 2018. These statements effectively reiterated the Applicant’s assertions, provided no insights into specific events of the Other Party’s failure to meet the expectations of the care arrangement and in part consisted of personal views of the relationship between the Applicant, the Other Party and Child J.
The Applicant’s evidence provided no specificity of dates when she alleges the Other Party had not complied with the care arrangements as agreed. There are no diary notes of such events upon which the Tribunal could rely to benchmark the Applicant’s assertions against those of the Other Party in relation to his lack of compliance resulting in a change in his percentage of care for Child J.
The Tribunal is reliant upon what evidence it has reliably before it to make the best and preferable decision. In this matter, that decision is best founded upon both the parenting agreement existing between the parties and the consistency of the evidence provided which indicates that in large part it was followed consistently subject to requested accommodations and adjustments.
Given that the evidence put forward by the Applicant lacks specific details capable of substantiating her claims regarding the reduced percentage of care to the Other Party, and that the Other Party was able to reasonably substantiate compliance with the agreement, the Tribunal finds that it cannot be satisfied that a change of care occurred.
As a consequence, the Tribunal concludes that as at 1 July 2018 the percentage of care apportionment between the applicant and the Other Party was 86% and 14% respectively and so the decision under review should therefore be affirmed.
DECISION
The decision under review is affirmed.
I certify that the preceding 61 (sixty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM
..….[SGD]................
Associate
Dated: 20 May 2021
Date(s) of hearing: 16 December 2020 Applicant: In person, by telephone Solicitor for the Respondent: Ms Gillian Gehrke Other Party: In person, by telephone
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Appeal
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Statutory Construction
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Procedural Fairness
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