VXQB and Child Support Registrar (Child support second review)

VXQB and Child Support Registrar (Child support second review) [2020] AATA 697 (2 April 2020)
Division:GENERAL DIVISION
File Number: 2019/0439
Re:VXQB
APPLICANT

AndChild Support Registrar
RESPONDENT

AndBQJQ
OTHER PARTY

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:2 April 2020
Place:Perth

The Reviewable Decision, being the AAT Tier 1 decision dated 11 January 2019,
is affirmed.
.......................[sgd].................................................
Senior Member Dr M Evans-Bonner
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 (Cth).
CATCHWORDS
CHILD SUPPORT – percentage of care decision – actual care – delegated care – pattern of care – dispute about percentage of care whilst child living with grandparents –interpretation of evidence before the Tribunal – date of effect – AAT Tier 1 decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 2A
Child Support (Assessment) Act 1989 (Cth), No 124 of 1989 Compilation No. 55 – ss 49, 50
CASES
Child Support Registrar v MQMV [2019] FCA 1171

Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959

SECONDARY MATERIAL
Guides to Social Policy: Child Support Guide, chapters 2.2, 2.2.1
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
2 April 2020
BACKGROUND

The Applicant (Father) is seeking a review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) dated 11 January 2019 in the General Division of the Administrative Appeals Tribunal (AAT Tier 2).
The Father and the Other Party (Mother) are the separated parents of a minor child,
born in 2007.
The dispute between the parties (which is also the issue requiring determination by the Tribunal) concerns the level of care provided to the child by the Mother between
18 July 2017 and 18 August 2018 (the care period) whilst the child was living in Perth with her maternal grandparents.
During the care period, the Father was living in Perth, and the Mother was living in Sydney. It was the Father’s evidence, however, that the Mother maintained that the child was living in Sydney during this time, and that he would fly to Sydney to have contact with the child. He maintains that he could have had more contact with the child if he knew she was in Perth, but he claims that the Mother did not want this because it would reduce the amount of child support payable to her.
The Tribunal observed a degree of animosity and mistrust between the parties.
Both informed the Tribunal that they had taken out restraining orders against each other; the Father in Perth, and the Mother in Sydney. Consequently, the hearing of this application was conducted by telephone.
The Tribunal understands that there have also been protracted Family Court proceedings between the parties over a number of years. The Mother states that the Father is a vexatious litigant. The Father states that the Mother continually breaches or ignores Family Court orders. The Father believes that the child support he was paying was not being used for the care and support of the child.
The Father has also expressed frustration towards the Respondent (Registrar).
He regards the Registrar to have taken money from him illegally following a stay order in his favour, which was granted by the Tribunal on 10 May 2019. The stay order is outlined below. He also takes issue with the Department of Human Services (Department) correcting the date of effect (see letter to the Mother from the Department dated
4 July 2019) of an Objection Decision dated 13 September 2018 (T18, page 87) whilst the AAT Tier 2 proceedings were underway. This change to the date of effect meant that the Father incurred a higher debt than if the date had not been changed.
PREVIOUS DECISIONS
The decision making process leading up to the AAT Tier 2 review was accurately summarised at paragraph [2.2] of the Registrar’s Statement of Facts, Issues and Contentions (SFIC) dated 15 October 2019 as follows:
(a)The child support assessment that was in effect from 18 November 2011 was based on the mother having 100% care and the father having 0% of the child (existing care percentage determination).
(b)On 31 May 2018, the father advised the Registrar that from 1 July 2017, the child was living with her maternal grandparents and that neither parent was caring for the child. On 10 July 2018, a delegate of the Registrar decided that there had been no change in the existing care percentage determination (original decision).
(c)On 16 July 2018, the father objected to the original decision.
(d)On 13 September 2018, an objections officer decided to revoke the existing care percentage determination and make a new care percentage determination finding that the mother had 8% care of the child while the father had 0% (objection decision). This decision was implemented from 18 July 2017,
(e)The effect of the objection decision was that neither parent was an eligible carer of the child, resulting in a terminating event as defined in s 12(2AA) of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act).
(f)On 13 September 2018, the mother applied to the AAT1 for review of the objection decision. On 11 January 2019, the AAT1 set aside the objection decision, finding that there was no change in care of the child on 18 July 2017, and thus no “terminating event”.
(g)On 24 January 2019, the father made an application to this Tribunal for second review.
(h)On 28 January 2019, the father applied for a stay on the operation of the AAT1 decision pending determination of the substantive application by the Tribunal.
(i)On 10 May 2019, the Tribunal granted a stay of the operation of the AAT1 decision pending determination of the substantive application.
(Original emphasis. Footnotes omitted.)
At the time that the Tribunal granted the stay order on 10 May 2019, the Tribunal adjourned the AAT Tier 2 application until the Federal Court handed down its decision in Child Support Registrar v MQMV [2019] FCA 1171 concerning whether the Tribunal had the jurisdiction to undertake the AAT Tier 2 review.
The Federal Court handed down its decision on 31 July 2019, which in effect confirmed the Tribunal had jurisdiction to undertake the AAT Tier 2 review.
On 17 September 2019 the Conference Registrar made programming orders to program the matter for hearing, including making provision for filing submissions and further evidence.
On 22 January 2020 the Tribunal conducted a directions hearing to ensure that the matter was ready to progress to a hearing on 18 February 2020. The Father requested an adjournment because he disagreed with the Registrar’s implementation of the stay order and with the Registrar changing the date of implementation of the Objection Decision from 18 July 2017 to 30 May 2018, (being the day before the Father notified the Registrar that the child was living with her grandparents) despite the Tribunal proceedings being underway.
The Father wanted the matter to be adjourned until his grievances with the Registrar were resolved and the money that he regarded the Registrar to have illegally obtained from him refunded. However, the Tribunal was of the opinion, having regard to the Tribunal’s objectives in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act),
that the matter should proceed to the substantive hearing on 18 February 2020. This was because:
(a)Approximately nine months had passed since the granting of the stay order on 10 May 2019. During these months the Father was unable to resolve his issues regarding the implementation of the stay order with the Registrar. The Tribunal has no power to deal with disputes regarding the implementation of the stay order, with enforcement being a matter for a court. However, when the Tribunal delivers a final decision in the AAT
Tier 2 application, the stay order will cease to have effect and the monies can be dispersed or refunded in accordance with the decision, thus ending any dispute regarding its implementation.
(b)If the AAT Tier 2 makes a new percentage of care decision, it will also have to consider the date of effect. However, if the AAT Tier 1 decision is affirmed, the Tribunal does not need to consider the date of effect.
(c)Finally, hearing notices had been sent to the parties on 19 December 2019, and so they had an adequate opportunity to prepare for the 18 February 2020 hearing and to make submissions. Progressing to a hearing, and the Tribunal deciding the AAT Tier 2 application, would give the parties a final determination, and hopefully enable the parties to move forward.
CLARIFYING THE DISPUTE ABOUT THE PERCENTAGE OF CARE
The Tribunal’s role is to undertake a de novo review (a review from the beginning), rather than seeking to find flaws in the decision under review. The Tribunal, standing in the shoes of the decision-maker, will determine what the correct or preferable decision should be in the circumstances of the application, taking into account the applicable law, and the submissions, facts and evidence before it.
Taking this into account, the Mother and Father’s respective positions can nevertheless be more precisely summarised with reference to the previous decisions that they agreed with. The Mother and Father both agreed that the Mother had some degree of care during the care period, but the dispute was about the extent of that care. The:
(a)Father is of the opinion that the Objection Decision of 13 September 2018 was correct. That is, that the Mother had 8% care of the child, and the Father had 0% care of the child whilst she was living with her maternal grandparents.
(b)Mother is satisfied with the AAT Tier 1 decision, which determined she had 100% of the care of the child, and the Father had 0% care of the child whilst the child was living with her maternal grandparents.
The Registrar did not advance a position as to the findings of fact that the Tribunal should make.
LEGISLATIVE FRAMEWORK
The relevant version of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) is No 124 of 1989 Compilation No. 55, which has a compilation date of
21 October 2016. This was the version of the Assessment Act that was in force during the relevant care period.
The first step for the Tribunal is to determine whether ss 49 or 50 of the Assessment Act apply. These sections provide:
49 Determination of percentage of care—responsible person has had etc.
no pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i)    an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii)   a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) the Registrar:
(i)    revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of care for a child that was made under this section or section 50; and
(ii)   is satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2)The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3)The percentage of care determined under subsection (2) must be 0%, unless section 51 or 52 applies in relation to the responsible person.
50 Determination of percentage of care—responsible person has had etc. a pattern of care for a child
(1)This section applies if:
(a) either of the following applies:
(i)   an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) the Registrar:
(i)   revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and
(ii) is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2)The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4)Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.
Section 49 applies if the responsible person (in this case the Mother) has no pattern of care for the child. However, all parties’ agree that there is a pattern of care provided by the Mother (with the dispute being about the percentage of that care). Care arrangements for the child were not made on an ad hoc basis. Rather, there were Family Court orders in place dated 27 October 2016 under which the Mother has sole parental responsibility for the child.
Hence s 50 of the Assessment Act is applicable, and the Tribunal must determine
(under s 50(3) of the Assessment Act) a percentage of care that corresponds with the actual care of the child that the Mother had during the care period when the child was residing with her grandparents.
There were several versions of the Child Support Guide (the Guide) published during the care period.
All versions of the Guide explain under the heading “care period” at [2.2.1]:
A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a
12-month period from the day on which the actual care of a child began or changed…
The following excerpt at [2.2.1] of the Guide is the same in all versions and provides:
Determining whether care exists
An object of the CSA Act is ‘that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings’ (section 4(2)(c)). The CSA Act does not define the term ‘ongoing daily care’, however the Registrar will take into account a number of factors in determining whether a person cares for a child.
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:
•    To what extent the person has control of the child, including having overall responsibility for the child and making:
◦ major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
◦ arrangements for others to meet the needs of the child (delegated care).
•    To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
•    To what extent the person pays for the costs of meeting the needs of the child.
•    To what extent the person otherwise provides financial support for the child.
•    To what extent the child provides for his or her own needs or has those needs met from another source.
•    To what extent the child is financially independent or financially supported from another source.
In Polec and Staker and Anor [2011] FMCAfam 959 (Polec) at [56] – [57],
Federal Magistrate Hughes of the Federal Magistrates Court (now the Federal Circuit Court) similarly outlined the applicable factors as:
56.In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:
a.    To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?
b.    To what extent does the person make arrangements for others to meet the needs of the child?
c.    To what extent does the person pay for the costs of meeting the needs of the child?
d.    To what extent does the person otherwise provide financial support for the child?
e.    To what extent does the child provide for his or her own needs or have those needs met from another source?
f.     To what extent is the child financially independent or financially supported from another source?
57.An analysis of the evidence in relation to these considerations should assist the Tribunal in determining whether or not there has been a child support terminating event or a change in the percentage of care for the child provided by the first respondent.
The task of determining a percentage of care is more straightforward when the child is living with a parent for a period of time, or where a parent cares for a child over a number of hours during the day, rather than overnight. In those cases, regard can be had to the number of nights, or the number of hours that a person has the care of the child to calculate the percentage of care, with the Guide providing suggested calculations. However, in the current application the child was being cared for by her grandparents during the care period in question, so the Mother’s care of the child in nights or hours would not result in an appropriate percentage of care calculation. In this regard,
the following statement from 2.2.1 of the Guide, under the heading, “Percentage of care” that was applicable during the care period in question is relevant:
…in limited circumstances, a person may have care of a child who is not living with them for a period of time. For example, a person can provide care for a child who is at boarding school, in hospital or in separate accommodation. However, a person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent or schoolteacher) does not provide care.
Consideration is given to who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well as who is meeting the child’s costs, rather than just the accommodation arrangements themselves. The Registrar will give weight to statements from both parents and any non-parent carers.
SUBMISSIONS AND EVIDENCE
The Mother, and particularly the Father, filed a large volume of correspondence in the Tribunal following the grant of the stay order. Much of this correspondence did not relate to the issues before the Tribunal to be determined at this substantive hearing. As is often the case with unrepresented parties, this correspondence, where relevant, contained what can be regarded as both evidence and submissions.

Consequently, on 22 January 2020, the Tribunal made a direction which gave the Father and the Mother the opportunity to make submissions relevant to the level of care provided to the child by the Mother between July 2017 and August 2018 with reference to the factors from [2.2.1] of the Guide and those identified by the Federal Magistrates Court in Polec.
The Mother
The T-documents contain a complaint made by the Mother to the Department, which is undated, but attached to an email dated 17 September 2018 (T19, pages 92-93).
The relevant part of the complaint is relevant to the current issues before the Tribunal (T19, page 93:
·     I have legal sole parent responsibility of my Daughter [name omitted] since conception.
·     I made a decision for [the child’s] schooling to be moved to Perth from Sydney in mid 2017.
·     I had a written agreement with my parents who were to become only temporary carer’s [sic] but not sole decision makers for [the child]. With this came a formal payment agreement as well.
·     I made all the decisions regarding [the child],
·     I was the primary contact for the school,
·     I paid all the school fee’s [sic] and contributions,
·     I paid a significant sum of funds to my parent’s [sic] to cover the cost of housing and feeding the child,
·     I arranged/paid all the child’s out of school sporting,
·     I paid for the child’s private health cover.
·     I paid for the child’s laptop and mobile phone to enable communication access 24/7
·     I purchased all the child [sic] clothes for the changing seasons, including school uniforms,
·     I purchased all the child airlines [sic] tickets for school holiday breaks to return to Sydney,
·     I paid for all my airfares back and forth to Perth for the sole purpose of seeing [the child],
·     Those trips frequently included regular parent teacher meetings with the school.
·     I communicated daily with my parents regarding her care and daily/weekly/monthly needs.
For all intensive purposes [sic] the child was always 100% in my care, as would a child that attends boarding school would still be 100% in the care of their parents.
Relevant submissions from the Mother included (from an email to the Tribunal dated
1 April 2019):
I…have always had full care of [the child], even though the child was not physically with me at all times. I still maintained care of the child financially, emotionally and had court orders stating I was and still am the child’s primary career [sic].
In a submission dated 25 November 2019, the Mother stated:
·     I have sole parental responsibility court ordered of [the child], I make all the decisions pertaining to [the child’s] welfare, without [the Father’s] input.
·     I had an agreement which was submitted to the AAT1 with my parents,
to cover costs, decision making and all issues regarding [the child] whilst she temporarily stayed with them.
·     I was the first point of call for schooling and frequently travelled to Perth as did my Husband…We watched assemblies, school carnivals and had parent teacher meetings. [The child] travelled back to Sydney every school holiday’s [sic] to be with us.
·     I paid for all of [the child’s] living costs aswell [sic], private health insurance, mobile phone, spending money, swimming lessons, school fees and uniforms, excursions and anything else my parents requested in the assistance of housing [the child]
…
I made the decision for [the child] to temporarily move to Perth to reside with my parents. My parents have been very active in assisting with raising [the child]…
I had and [sic] agreement with my parent [sic] for the temporary care of [the child] in Perth, this agreement has already been submitted as evidence. I was in no way legally obligated to include [the Father] in this matter.
…
I submitted bank records to show funds being transferred to my parents account from My Husband and I’s joint ANZ account. The full amount of child support was not transferred, as we have several different accounts for the funds to go into to cover, university, travel, vehicle and other things [the child] will need when she is older. I also cover her private health insurance, sporting ($15,000 plus per year on [name of sport omitted]) schooling, fees and uniforms, phone and more.
…
As per the CSA Guide 2.2.1, whilst [the child] was not physically in my care, I had an agreement to pay, provide and make all the major decisions regarding her welfare. I had and still have court orders for sole parental responsibility of
[the child].
The Mother also filed written submissions on 9 February 2020 in response to the written direction made by the Tribunal on 22 January 2020. The only relevant submission was that “as per Family Court Orders 2014, 2016 and 2020 I have sole parental responsibility of [the child]”. The Family Court orders dated 27 October 2016 that were in place during the care period were put into evidence as Exhibit 2. These orders provided, in part, that:
2. That the Mother have sole parental responsibility for all matters pertaining to the long term care, welfare and development of the child… excluding matters pertaining to [the child’s] overseas relocation.
3. That the Mother keeps the Father duly informed as to decisions she makes pursuant to the immediately preceding Order.
The Father
The following written submissions regarding the Polec factors were sent to the Tribunal by the Father in an email dated 14 February 2020:
point a.No accommodation was provided, it was provided by the grandparents. Whilst [the child] would have clearly taken her clothing from Sydney to Perth, she would have required new clothing during the new year that she spent in Perth. There is no evidence that [the Mother] provided any new clothing during the time [the child] was living in Perth.. [sic] Food would have obviously been provided by the grandparents. No child care required. Education was at a public school. No evidence of any required health care during the period. Supervision provided by grandparents, [the Mother] could not have supervised [the child] from Sydney. Transport and extra-curricular would be provide [sic] by grandparents.
point c and d No evidence of [the Mother] paying for any of these costs, clearly she was using the child support money for other uses,.[sic]
point eThe needs were provided from another source, the grandparents
point fShe was financially supported by the grandparents.
In his stay order application filed in the Tribunal on 29 January 2019, the Father stated: “[The child] went from living with her mother and stepfather and half brother in Sydney,
to living with her grandparents in Perth. Her mother only saw her less than 10% of this time.”
In an email to the Tribunal dated 5 April 2019, the Father stated:
It was not proven that [the Mother] has always had full care of [the child].
[The child] lived in the full care of her grandparents for the time period that is the subject of this matter.
Later in the same email the Father stated, “[The Mother] could in no way provide full emotional support for [the child] when they were living on opposite sides of the country, it’s clearly not possible.”
In an email to the Tribunal dated 6 April 2019 the Father stated, “A primary carere [sic] cannot live on the other side of the country”. Later in this email, the Father stated:
[The Mother] could not provide ongoing daily care when she was in Sydney and [the child] was in Perth. Daily, every day, she was only with [the child] 8% of the days of the year. That is not daily care.
[The Mother] did not provide [the child] with accomodation [sic] or food, clothing, child care, education was free at the public school...
[The Mother] did not pay the cost of meeting the needs of [the child], she was clearly using the large sum of Child Support for other purposes. Clearly [the child] was supported from another source, her grandparents.
At the hearing, the Father stated (transcript, page 12):
…the reality is, [the child] was living here [in Perth] with her grandparents going to a public school. In my opinion, the real costs of supporting her during that time was far less than what the child support payments are and the minimal costs involved were actually covered by her grandparents because that’s who she was living with. And you know, at the end of the day, they were part of the family, so sometimes, you know, sometimes grandparents help their grandkids, they look after them.
If they had to buy something for [the child], they might have just done it, they might not have asked BQJQ to reimburse them and you know, they might have just been helping out the granddaughter. A lot of it’s speculation, but the fact is, she did live with her grandparents; I was misled about it. If it was advised to everybody at the time, it would have all been done correctly at the time.
In summary, the Mother’s submissions were that she had sole parental responsibility for the child, made all decisions concerning the child, and reimbursed the child’s grandparents for the living costs including schooling, extra-curricular activities, health insurance and mobile telephone costs of the child whilst the child was living with her grandparents.
The Father’s submissions were that the Mother could not have the primary care of the child whilst the Mother was in Sydney and the child was in Perth with her grandparents due to their physical separation. The Father’s submissions were that the costs of meeting the needs of the child, including food, transport and accommodation, were met by the child’s grandparents, and not by the Mother, during the care period.
EVIDENCE
At the hearing of this application, the Tribunal took the parties through relevant evidence contained within the s 37 (T-documents) (Exhibit 1) and gave the Mother and the Father the opportunity to comment on this evidence. The Tribunal will now make findings, on the balance of probabilities, regarding this evidence, before making some general observations about the nature of the evidence in these applications.
Statement from the grandparents
The T-documents contain a statement from the child’s grandparents (T24, page 119-121), which sets out their understanding of the arrangement they had with the Mother concerning the child living with them during the care period. The letter is addressed to “The Member, Administrative Appeals Tribunal”, and is signed by both grandparents and dated 11 November 2018. The letter states:
We are the parents of [the Mother] and the maternal grandparents of [the child].
We provided considerable amounts of assistance to [the Mother] in looking after [the child] since her birth as [the Mother] was a single parent, combining employment, sometimes as fly in/fly out, with caring for [the child].
After [the Mother] married on [day and month omitted] 2014, she and family lived close to our home in [a suburb in Perth] until relocating to Sydney for employment commitments in May 2016. Prior to departing for Sydney, [the child] was enrolled in [a Perth] Independent Primary School.
In July 2017 [the Mother] contacted us and requested that [the child] board with us and attend [the Perth] Independent Primary School as she was having difficulty at the primary school that she was attending, being [a public school in Sydney].
The period was until the end of the 2017 school year.
After discussions we decided that it was in [the child’s] interests to attend a primary school that she was comfortable with and had good academic results attending.
We agreed to have [the child] board with us at our home in [Perth] on the basis that it would only be until the end of the 2017 financial year and that [the Mother] covered all the costs in regard to [the child].
We were happy for this arrangement as it was in [the child’s] best interests.
[The Mother] enrolled [the child] into [the Perth] Independent Primary School and paid the school fees.
[The Mother] was the main contact for [the child] at [the Perth] Independent Primary School. [The Mother] had frequent discussions with [the child’s] teacher about her academic progress. Any issues were discussed with [the Mother] rather than ourselves. We attended the school for assemblies and to observe [the child] being awarded merit certificates as proud grandparents.
When there were issues in regard to [the child] and some of the other students at school, the Deputy Principal [of the Perth] Independent Primary School contacted [the Mother] to discuss what the school was putting in place to resolve the issues. [The Mother] met with the Deputy Principal when she was visiting in Perth.
[The Mother] paid us an agreed monthly amount to have [the child] board with us by way of bank transfer or by cash when she was visiting in Perth. [The Mother] paid additional amounts for extracurricular activities, being swimming and later dance lessons.
[The Mother] provided a mobile phone for [the child] and paid for the usage by
[the child]. [The child] was in contact with [the Mother] on a daily basis on the mobile phone.
[The child] returned to Sydney for school holidays.
In September 2017, we holidayed with family and friends in Bali. [The child] travelled with [the Mother] and stayed with [the Mother] and her family at a hotel, whilst we stayed at different accommodation.
Whilst we were not keen in [sic] having [the child] having sleepovers with friends, either at their houses or our house, [the Mother] made the decision that she allowed this for [the child]. As such [the child] had sleepovers.
In the matter of discipline, it was [the Mother] who instructed us to take away [the child’s] access to electronic devices for periods of time when [the child] did not abide by [the Mother’s] decisions and directions.
[The child] excelled academically at [the Perth] Independent Primary School and with her swimming. After discussions with [the Mother], it was decided that [the child] should finish her primary education at [the Perth] Independent Primary School in the 2018 school year.
Once again this was on the basis that [the Mother] covered all the costs in regard to [the child] and again made all the major decisions in regard to [the child].
Again, [the child] returned to Sydney for school holidays.
We have never taken on parental responsibility for [the child]. This has always been with [the Mother]. Any major decisions when [the child] was boarding with us were always deferred to and made by [the Mother]. Furthermore, [the Mother] covered the financial costs of having [the child] board in our home.
[The child’s] boarding with us came to an end in August 2018 when she returned to Sydney.
…
We believe that the policy in the Child Support Guide [2.2.1], should have been applied in our circumstances in that [the child] remained in [the Mother’s] care whilst boarding with us as grandparents, for a finite period of time.
If we believed that [the child] was in our “care” we would have claimed Family Assistance and sought child support assessments from both of [the child’s] parents. As [the child] was not in our care, we did not proceed with that course of action…
There is, however, also a reference in the T-documents to a “written agreement” and a “formal payment agreement” (T19, page 93), which are not before the Tribunal.
These would appear to be different documents from the above letter to the Tribunal from the child’s grandparents. It is unclear as to why these documents are not before the Tribunal. However the Tribunal observes that, with the exception of the Family Court Orders in Exhibit 2, the parties did not file any further evidence, with the only evidence being contained in the T-documents. The Mother expressed the view that she had no legal obligation to show any agreement with the child’s grandparents to the Father, by virtue of the Mother having sole parental responsibility for the child (transcript, page 30).
The Father also expressed concerns about the credibility of the letter provided by the child’s grandparents concerning their care of the child. It was put to the Father by the Tribunal that it would be reasonable for the Tribunal to regard the letter as being true because it was addressed to the Tribunal, with a view that it would be used in the Tribunal proceedings, and signed by the grandparents. However, the Father was of the view that,
“I think it’s clear that a parent [the child’s grandparents] would try and support the favourable outcome of [sic] their child [the Mother]” (transcript, page 31). The problem for the Tribunal is that it must seek to make findings based on the evidence before it in an application where the parties’ emotions, and particularly their mutual mistrust and dislike for one another, runs high. Other than his mistrust of the Mother and the child’s grandparents, the Father did not seek to challenge this evidence by seeking to call the grandparents as witnesses. Aside from the Father’s mistrust and his belief that the grandparents would support their daughter (the Mother), there is no rational or probative basis that would form a basis for the Tribunal to reject the information in this letter as being untruthful. Consequently, the Tribunal accepts the evidence in this letter.
Flight statements
T8, page 34 is an activity statement showing four flights to and from Sydney. The Mother explained that these were the child’s flights when she came to visit the Mother during the school holidays. They total approximately 35 days. The statement does not include the child’s name, which was only handwritten on this statement, and consequently, the Father submitted that this “could have been anyone’s frequent flyer” (transcript, page 18).
The Tribunal accepts, on the balance of probabilities, that this is the child’s frequent flyer statement. The dates correspond with the school holidays, and by a process of elimination, this statement is most likely to be the child’s given that the Tribunal has separate flight activity statements from the child’s Mother and stepfather.
There is a flight activity statement for the mother (T8, pages 37-38) showing flights to and from Sydney during the care period. The Mother’s evidence was that this statement showed the Mother travelling to see the child. These trips add up to approximately
35 days. Although the Father’s view was that the Mother had only spent 31 nights with the child (transcript, page 10), the evidence before the Tribunal (the child’s flights and the mother’s flights which add up to approximately 70 days by the Tribunal’s calculations)
is consistent with the Mother’s evidence at the hearing that she spent 64 nights with the child (transcript, page 8).
The Tribunal also notes the list of telephone calls and text messages in the T-documents (T27, pages 137-141) between August 2017 and February 2018. The Mother’s evidence was that this showed that the Mother and child spoke or texted every day. The Mother explained (transcript, page 35):
The communication didn’t stop, just because she was in Perth, she had me to talk to about her day at school, issues she was having with friends, anything –
any support she wanted from me, I was open there. I gave her, you know, I was emotionally there for her. I was her emotional support. So that just shows open communication for significant periods of time between [the child] and myself.
It wasn’t a drop and run with the grandparents.
The Father expressed concern that approximately six months of telephone records were missing (March to August), and no explanation was before the Tribunal about this.
There is no evidence, however, to suggest that the Mother would not have maintained daily contact with the child in the remaining six months. The Tribunal accepts the Mother’s evidence in this regard.
Bank statements
Some of the bank statements are duplicated in the T-documents (T8, page 39; T28, pages 144, 150-151, 153 and 156-157). Taking out any duplicates, there are 22 bank transfer receipts showing payments to the child’s grandfather. These are four statements at T8, pages 40-42 (totalling $1,700); and 18 statements at T28, page 145. One payment confirmation statement dated 5 November 2017 does not contain an amount, but the remaining 18 add up to a total of $8,932. Thus the total amount transferred during the relevant period based on these statements was $10,632. The Mother’s evidence was that she had recorded these payments in an Excel spread sheet (T28, pages 142-143), which added up to a total of approximately $11,000. This is consistent with the Tribunal’s calculations, taking into account the amount transferred on 5 November 2017 was not shown, and that the lowest payments during the care period were between $200-400.
The Father submitted that the name of the person transferring the funds was not shown on these statements, and that “it could have been transferred from anybody to him” (transcript, page 20). The Tribunal accepts the Mother’s evidence that she made these transfers from her mobile telephone. It is most unlikely that the Mother could produce receipts for this period for transfers from a third party to the child’s grandfather’s bank account.

T25, pages 124-128 contains heavily redacted bank statements in the name of the child’s stepfather. Several transfers are shown, but the name of the transferee is not given. Given that the account is in the name of the child’s stepfather, and the transferee is not shown, the Tribunal gives no weight to the stepfather’s bank statements.
Other payments
The T-documents also contain payment receipts for the child’s mobile telephone
(T28, pages 147-149, 152, 154-155). The Mother’s evidence was that the Mother pre-paid for the child’s mobile telephone use and data. The Mother prepared a table showing the payment dates and amounts (T28, page 146). The Mother’s name and address appear at the top right hand corner of these statements. The Tribunal accepts the Mother’s evidence that she paid for these mobile telephone costs for the child.
The T-documents also contain receipts paid for by the Mother for a school jacket
(T29, page 158), school textbooks (T29, page 159), a school camp (T29, page 161), school shirts (T29, pages 162-163), a school excursion (T29, page 164) and a school voluntary contribution and donation (T29, pages 165-166). There is also a receipt for dental expenses paid for by the Mother for $177 (T29, page 167). The Father submitted that the receipts for these other payments do not state who paid for them
(transcript, page 28). The Mother produced these receipts and there is no evidence to suggest that she did not pay for them. Accordingly, the Tribunal finds that the Mother paid for these expenses.
The T-documents also contain a payment history for private health insurance showing both the Mother and the child’s names, and showing the amounts paid (T26, page 132). The Mother’s evidence was that the January 2017 payment on this payment history was for six months in advance, and that after that period the child was covered by her stepfather’s health insurance. The Tribunal agrees with the Father’s submission that this payment history is not relevant because it pre-dates the care period in question.
The Tribunal does note that the child also appears on the Mother’s Medicare card,
which is consistent with the Mother having sole parental responsibility (T30, page 168).
A note about the evidence
It is difficult in applications such as these for a parent, in this case, the Father,
who does not have the care of a child during a care period, to present evidence in to substantiate their contentions. On the other hand, a parent who does have the care of a child is better able to produce evidence such as transfer receipts, invoices and statements to substantiate the costs they have expended in meeting the needs of the child.
If a parent has sole parental responsibility, they are more readily able to attest to the emotional support they provide the child, as well as demonstrate decisions they have made concerning the welfare of the child.
As noted above, there is animosity and mistrust between the parties, with both informing the Tribunal that they had taken out restraining orders against each other, and as demonstrated by the history of protracted Family Court proceedings.
Although the Father is of the view that the Mother did not use the child support he paid during the care period in question for the maintenance and support of the child, there is no logically probative evidence to support this contention, with this view apparently being based on the history of animosity and mistrust between the Mother and the Father.
This mistrust would have been exacerbated if the Mother did indeed fail to inform the Father and the Registrar that the child was living in Perth with her grandparents during the care period, with visitations between the child and the Father being arranged in Sydney.
The Family Court order confirms that the Mother had sole parental responsibility for the child during the care period. The evidence submitted by the Mother suggests that, on the balance of probabilities, she paid for all of the financial costs of the child. As discussed above, although some of the receipts do not state the name of the person transferring the funds, it is extremely doubtful that the grandparents paid for these costs, and that the Mother is dishonestly trying to claim them. There is no evidence before the Tribunal to doubt the credibility of either party. For the reasons set out below, the Tribunal accepts the Mother’s evidence that the child was 100% in the care of the Mother in the same manner as if she were in boarding school, as being credible. There is no evidence that the information in the letter from the grandparents was untrue, or that it was written by the Mother. However, the Tribunal also accepts that it is the Father’s honest (but incorrect) belief that the Mother was not using the child support for the care of the child and that the child was in fact being supported by her grandparents during the care period.
CONSIDERATION
The Tribunal will now apply the factors from [2.2.1] of the Guide and Polec.
The evidence before the Tribunal is that the Mother met the needs of the child by providing her with clothing (see above receipts for school uniform), paying for her healthcare (Medicare and dental expenses), providing her with emotional support (in the form of daily phone contact and also discipline), and paying for and approving extra-curricular activities (including sport, but also social activities such as sleepovers). However, because the child was living with her maternal grandparents in their home during the care period, her grandparents provided her with accommodation, food, supervision and transport to and from school and extra-curricular activities.
Whilst the grandparents were providing accommodation and the like, their letter regarding the care arrangements made with the Mother, and the evidence from the Mother, was that these costs were covered by the Mother. The receipts show that the Mother made regular cash transfers to the child’s grandfather to cover the child’s expenses such as food and accommodation, and paid for the child’s extra-curricular activities (including sporting activities). There is no evidence before the Tribunal of the grandparents paying any costs for the child. The letter from the grandparents referred to an agreement with the Mother that the Mother would cover all the costs in regard to the child. The Mother’s evidence was that she reimbursed her parents for all of the costs of the care of the child.
As discussed above, the Tribunal accepts this evidence.
During the period when the child was living with her grandparents, the Mother could still be regarded as meeting the needs of the child. She retained sole parental responsibility for the child and made decisions regarding her daily care and welfare. She made all decisions about schooling (including being the primary contact for the school, meeting with teachers including to resolve issues the child was having at school and to check her academic progress), making decisions about the child’s travel and holidays, spending school holidays with the child, and making decisions about discipline and sleepovers.
She spoke to the child daily and provided her with a mobile telephone and paid for its usage. As contemplated by the Guide (see paragraph [25] above), the child’s residence with her grandparents during the care period was akin to a boarding school or other separate accommodation situation. The child’s grandparents were supervising her, but the fact of supervision does not mean that the care of the child shifted to the child’s grandparents for the care period.
The child was approximately 11 years of age when she was living with her grandparents and so was not able to provide for her own needs, and she was not independent or financially supported from another source.
For the above reasons, the Tribunal finds that the Mother had 100% care of the child whilst the child was living with her maternal grandparents during the relevant care period.
As the Tribunal has not changed the care percentages, it is not necessary to consider the date of effect.
DECISION
For the reasons outlined above, the correct or preferable decision is to affirm the Reviewable Decision, being the AAT1 decision dated 11 January 2019.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..........................[sgd]..............................................
Associate
Dated: 2 April 2020

Date of hearing: 18 February 2020

Applicant: In person

Counsel for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

Other Party: In person

[2020] AATA 697

2 April 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Statutory Construction

Appeal

Procedural Fairness

Date of hearing:	18 February 2020
Applicant:	In person
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers
Other Party:	In person