VYZB and Child Support Registrar (Child support second review)

VYZB and Child Support Registrar (Child support second review) [2022] AATA 4069 (1 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3902
Re:VYZB
APPLICANT

AndChild Support Registrar
RESPONDENT

AndRCLT
OTHER PARTY

Decision
Tribunal:Senior Member K Millar
Date:1 December 2022
Place:Adelaide

The decision under review is set aside and remitted for reconsideration in accordance with the following directions:
(a)For the period 13 December 2020 until 1 August 2021, A’s father had 100% care of A; and
(b)The existing determination of the percentage of care for A is revoked from 14 July 2021 in respect of his father and from 12 December 2020 for his mother.
(c)For the period from 2 August 2021, A’s mother had 100% care of A;

(d)The previous care determination is revoked for both parents from 1 August 2021 and replaced with a determination that A’s mother has 100% care and his father has 0% care.

.......................[SGND].................................................
Senior Member K Millar
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 – change in percentage of care – whether percentage of care changed – criteria to determine to what extent a parent has care of a child – decision under review is set aside and remitted for reconsideration
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Evidence Act 1995 (Cth)
Cases
Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142
Polec v Staker [2011] FMCAfam 959
Secondary Materials
The Child Support Guide
REASONS FOR DECISION
Senior Member K Millar
1 December 2022
INTRODUCTION

The Applicant and other party are the parents of A, who has now turned 18 years of age. From 2013, A lived with his mother in Tasmania and was in her care 100% of the time.
On or around 13 December 2020, A went to stay with his father who lives in Darwin. His mother describes this as a holiday, and his father says A was living with him.
On 15 July 2021, the father advised the Child Support Registrar that A had moved to Darwin and had been in his full-time care from 13 December 2020. The percentage of care for A was changed to 100% in favour of A’s father from 13 December 2020, with the date of effect of this decision being 15 July 2021 as this was the date the father notified of the change to the care.
A’s mother objected to this decision, stating that while A was with his father, this was for a holiday, and she had continued to provide financial support. As a result, his mother said A should be considered to be in her care. A’s mother advised A has returned to Tasmania on 2 August 2021. Her objection was disallowed.
A’s father advised the Registrar on 22 September that A did not return to his care after he went to his mother in August 2021.
A’s mother applied to the Social Services and Child Support Division of the Tribunal (AAT1) who set aside the decision and found the mother’s care was to remain at 100% and the father’s care at 0%.
The father has applied for a further review of this decision.
In issue is whether the care of A changed, and if so, what is the period over which the care should be considered, and what is the percentage of care of each parent. If the care has changed, and it leads to a new care determination, the Tribunal must consider the date of effect of that change.
EXTENSION OF TIME APPLICATION
The matter was initially listed for an application to extend the time for the father to lodge his application. The father had been advised he required an extension of time to lodge his application, and the mother objected to an extension of time being granted.
Applications for the review of a decision must be made in the period commencing on the day on which the decision is made and ending on the twenty-eighth day after the day on which the AAT1 decision is given to the Applicant.[1]
[1] Sections 29(1)(d) and 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth).
The decision of AAT1 is dated 25 March 2022, and the father lodged his application for review on 16 May 2022.
The first issue to be considered is the date on which the 28-day period commences. This is the date on which the Tier 1 decision is given to the Applicant, which in this case is the father.
Under s 95P of the Child Support (Registration and Collection) Act 1988 (Cth) (Registration and Collection Act), within 14 days of making a decision on AAT first review, the AAT must give oral or written reasons for the decision. In this case, the written reasons are dated 25 March 2022.
Section 28A of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) states:
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then the document may be served:
(a)       on a natural person:
(i)        by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) ….
Note:          The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
(2)       Nothing in subsection (1):
(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorise service of a document otherwise than as provided in that subsection.
A copy of the notification by AAT1 to both parties was obtained by the Tribunal and provided to the parties. This shows that the father was notified by post of the decision, and the Electronic Transaction Act 1999 does not apply.
As it applies in this case, Section 29 of the Acts Interpretation Act states where an Act authorises or requires a document to be sent by post, then it will be deemed to be sent by properly addressing, prepaying and posting the documents as a letter and, unless the contrary is proved, to have been received at the time at which the letter would be delivered in the ordinary course of post.
Section 29(2) of the Acts Interpretation Act states, “This section does not affect the operation of section 160 of the Evidence Act 1995.” Section 160 of the Evidence Act 1995 (Cth) (Evidence Act) states:
(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted.
(2) …
(3) In this section:
"working day" means a day that is not:
(a) a Saturday or a Sunday; or
(b)a public holiday or a bank holiday in the place to which the postal article was addressed.
Note:Section 182 gives this section a wider application in relation to postal articles sent by a Commonwealth agency.
Section 163 of the Evidence Act addresses letter sent by government agencies, and states:
(1)A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.
(2) In this section:
"business day" means a day that is not:
(a) a Saturday or a Sunday; or
(b) a public holiday or bank holiday in the place in which the letter was prepared.
"letter" means any form of written communication that is directed to a particular person or address, and includes:
(a)any standard postal article within the meaning of the Australian Postal Corporation Act 1989 ; and
(b) any envelope, packet, parcel, container or wrapper containing such a communication; and
(c)any unenclosed written communication that is directed to a particular person or address.
Note: Section 5 extends the operation of this section to proceedings in all Australian courts.
In Swanton v Military Rehabilitation and Compensation Commission,[2] Tracey J stated that while the Tribunal is not bound by the Evidence Act, it is nevertheless entitled to rely on the presumptions raised by s 160(1) and 163(1) of the Evidence Act. In that case it was found that the AAT is a Commonwealth Agency for the purposes of the Evidence Act and that the presumption in s 163(1) that the letter had been posted five business days after it was dated applies.
[2] [2017] FCA1142 at [44].
In this matter, as there is no evidence about receipt of the notification, the notice of the decision dated 7 April 2022 is presumed to have been posted 5 working days after the date on the notification, which is 14 April 2022.
Turning next to the presumption in s 160 of the Evidence Act that the father received the decision on the seventh working day after it was posted, as the Easter holidays fell on 15 and 18 April, and the Anzac Day public holiday fell on 25 April, he is presumed to have received the decision on 28 April 2022.
As his application was lodged on 16 May 2022, this is less than 28 days after the Tier 1 decision is taken to have been given to him, the application is within time and an extension of time is not required.
LEGISLATION
Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (Cth) (the Act) addresses the percentage of care, which is used to decide a person’s cost percentage. The person’s cost percentage in turn affects the assessment of the amount of child support a person is required to pay.
A person’s care may be worked out by the number of night that the child was, or is likely to be, in the care of the person during a care period (s 54A). A care period is a period of time the Registrar considers appropriate having had regard to all of the circumstances (s 49(b)(ii) and 50(b)(ii) of the Act).
Section 49 of the Act applies where one parent or carer has no care of a child. Under s 49 of the Act, if an application has been made for a parent to be assessed in respect of the cost of the child and there is no pattern of care, the care percentage must be 0%.
If a determination about a parent or carer’s percentage of care that was made under s 50 is revoked, and a parent continues to have no pattern of care, s 49(3) requires that another percentage of care determination is made that the parent with no care has 0% care.
If the care of the child or children is shared, a similar process is required under s 50 of the Act. If a parent with no care or reduced care take action to regain care of the child, an interim period where two care determinations may apply.
The circumstances in which the existing determination of the percentage of care can be revoked are set out in Subdivision C of Part 4 of the Act. A determination about a person’s percentage of care must be revoked if there is less than regular care (s 54G), where regular care is at least 14% (s 5 of the Act). A determination about a person’s percentage of care also must be revoked if is a change to the person’s cost percentage as a result of the change to the care (s 54F). Cost percentages are set out in s 55C of the Act.
A determination about a percentage of care may be revoked in other circumstances.
Sections 54F(3) and 54H(3) provide for the date the existing care determination is revoked. As it applies in this case, if the Registrar becomes aware that the care of the child actually taking place does not correspond with the existing percentage of care more than 28 days after the change of care day, the revocation of the determination for the person with increased care occurs the day before the Registrar was notified. For the person with reduced care, this is the day before the change of care day.
The “change of care day” where a determination about the person’s existing percentage of care is revoked is the first day on which the care of the child ceased to be the same as the existing determination (s 5 of the Act).
If a determination about the percentage of care is revoked, a new determination must be made (s 49 and 50 of the Act).
Section 54B of the Act sets out the day from which any new determination of the percentage of care applies, and s 54B(a) states where a determination is made under s 49 or s 50, it applies on and from the application day. “Application day” is defined in s 54B(2). Where a previous care determination applied, this applies at the end of the day before the care changes (s 54F(2)(b) and s54G(2)(b) of the Act).
CONSIDERATION
A travelled to Darwin and lived with his father in the period 13 December 2020 until 2 August 2021 when he returned to live with his mother.
In that time, his mother said he returned to Tasmania twice. However, the information before the Tribunal on flights shows one trip between 23 June and 18 July 2021, before A returned to Tasmania on 2 August 2021.
In general, s 54A requires care to be worked out using the number of nights in a parent’s care. However, this may not always reflect the care a parent has of a child, particularly where the child does not live with either parent. In Polec v Staker (SSAT Appeal),[3] where a child was living separately to both parents to pursue work experience and an apprenticeship, Federal Magistrate Hughes stated the following factors are relevant:
[3] [2011] FMCAfam 959.
1. 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?
1. To what extent does the person make arrangements for others to meet the needs of the child?
2. To what extent does the person pay for the costs of meeting the needs of the child?
1. To what extent does the person otherwise provide financial support for the child?
1. To what extent does the child provide for his or her own needs or have those needs met from another source?
1. To what extent is the child financially independent or financially supported from another source?[4]
In this case, A was living with his father in the relevant period. However, given A’s mother’s contention that she was effectively still providing care for A, the Tribunal has considered these factors.
Accommodation, clothing, food
A’s father was providing accommodation. A obtained a job at a bistro at his father’s place of employment from 16 December 2020 to 30 March 2021. When A worked at the bistro, he had meals provided, approximately three times a week until he ceased work. A’s mother said A was having to provide food, particularly fruit, that he needed due to his diabetes.
A’s father said he did a weekly shop and if A wanted other items, he would purchase them himself. Both parents said A likes takeaway food and his preference is reflected in his bank account statements where there are purchases of fast food.
The Tribunal finds that A’s father provided accommodation in the period A was in Darwin. He also provided the majority of his food, with A purchasing additional items.
Both parents acknowledged that A’s father purchased clothes for him while he was in Darwin.
Financial Support
A’s father said he paid rent, power and child support in the period A was in Darwin. He paid for food, but A bought some food. He said A did not need to pay for anything but was earning a wage and bought himself some items from his wages. He bought clothing for A and bought him an Xbox and a smart TV. His father states he bought A clothing and knives for a course in cooking. He paid for driving lessons and his license. When A went to hospital, he paid the ambulance bill, and paid for taxis and went with him when he saw specialists for his diabetes.
A worked while in Darwin at the same location as his father in the bistro, and his account shows he was also earning money. His father said he spent it on Xbox games and takeaway food and would supplement the weekly shopping. A paid approximately $30 per month for the internet. A would occasionally buy fruit and vegetables that were not purchased as part of the weekly shop.
A’s mother provided A’s bank account statements[5] that included the period from when he arrived in Darwin on 13 December 2020 until 30 April 2021. In this time, A’s mother transferred money to him on six occasions in January and once in February. The statements are not entirely legible, but this appears to be approximately $3,100. A’s mother also provided a handwritten list of other amounts[6] she states were transferred to A, and one amount of $250 that was transferred to A’s father on 14 January 2021.[7] Amounts paid in the period 27 May – 18 August 2021 are not supported by bank account statements, other than one sum of $300 transferred 4 June 2021 which is supported by a screen shot showing a transfer to A.[8]
[5] T-documents, T45, 157 – 177.
[6] T-documents, T26, 99-100.
[7] T-documents, T47, 198.
[8] T-documents, T47, 197.
His mother also provided a handwritten statement from her daughter stating A went on an extend holiday to visit his father. It is stated that she heard A’s mother speak to his father and she heard A’s father agree that he “was happy for my mum [A’s mother] to transfer funds into [A’s] account to live off whilst [A] visited. He was never going to live there he was only visiting.”[9] A’s father said he did not recall a conversation where A’s mother asked if he wanted money sent to his account or A’s account, and said he disagreed that this was the arrangement.
[9] T-documents, T32, 115.
A’s mother told the Tribunal that she provided financial support to A while he was in Darwin, including the purchase of a mobile phone she gave him for Christmas.
A’s mother gave evidence that there was an agreement that they would leave things as they were for payment of child support, and that she would transfer child support to A. She said she offered to transfer money to A’s father, but he said to transfer it to A. A’s father said he did not recall this agreement. The issue before the Tribunal is the care of A, and not any agreement outside of the legislation about the payment of child support between the parents. Whether or not there was an agreement about the transfer of child support is not directly relevant to the percentage of care of the parents. What is relevant is the transfer of funds from A’s mother to A in the significant amount of at least $3,000.
Emotional support
A’s father said he would talk to A and got him a job where he worked so they were working at the same place. A’s father works from 3 – 4 pm in the afternoon until 12 -1 am and has Tuesdays and Wednesdays off. A worked at the bistro 3 – 4 days per week from approximately 5pm until 8 or 9 pm. A’s father said they spent the day together until 3 – 4 pm and would spend time together while A was at work.
A’s father acknowledged that A is very close to his mother and would speak to her once or twice a day. While living with his father, A decided to go to university to study to be a chef, and his father said that 90% of the time, A would ask him if he wanted advice, and he encouraged him to go to university.
A’s mother accepted that A’s father played an active role while A was living with him, but states A has always confided in her more than his father.

A’s mother says she was the active parent financially and emotionally. She said they spoke 4 – 5 times a day because he was lonely, and that his sister would also receive calls.
Health
A was diagnosed with diabetes approximately 12 months before he went to Darwin. He was hospitalised twice while he was in Darwin because of his diabetes and has been hospitalised once since his return to Tasmania.
A’s father said he needed to watch to make sure A did not have too much junk food and would monitor his sugar intake. He said he paid the ambulance bill when A was taken to hospital and said he would pay for a taxi and go with A when he went to see the specialist for check-ups.
While he was in Darwin, A’s mother said she kept her finger on the pulse regarding A’s diabetes as he had only been diagnosed 12 months before he went to Darwin. She spent time talking to A’s father and explaining that A should be referred to a diabetes clinic, and that his father would need to make sure A attended his GP and the diabetes clinic. She said she believed his father took him to the GP and got insulin but did not go to the diabetes clinic, and it was not until he was admitted to hospital that A saw the diabetes educator.
Household tasks
A’s father said A would occasionally wash his own clothes and washed his chef’s uniform. His father monitored his personal hygiene. A’s father said he was the main cook in the household, but A would cook for himself at times.
A was responsible for his own room, and when it was too messy, A’s father would ask him to clean it up.
CONCLUSION
Having considered indicators of who was providing care, the most significant area is the financial and emotional support provided by A’s mother, and the Tribunal considered whether this has effectively resulted in her providing care to A while he was living with his father. A’s mother asserts there was an agreement that she would give A the child support and they would leave the child support arrangements in place. The father disagrees.
The question before the Tribunal is not who has provided financial support, but the percentage of care, which according to s 54A may be worked out based on the number of nights the child was in the care of the person during the care period. While his mother has provided significant financial and emotional support, the Tribunal does not consider that this results in her having a percentage of care of A while A was spending 100% of the nights with his father. It was open to A’s mother to have notified the Registrar of the change to where A was living.
The Tribunal finds A’s father had 100% care of A from 13 December 2020 to 1 August 2021. It does not consider that a temporary return to Tasmania in that time shows a change to the pattern of care. A returned to his mother’s care 100% of the time from 2 August 2021.
A’s father notified of the change to the care on 15 July 2021, approximately 7 months after the day the care changed. It falls be determined whether this was a reasonable period in the circumstances to determine the date of effect. The Registrar considers a period of less than 28 days reasonable.[10] While not bound by this guide, in the absence of any other factors that prevented A’s father from notifying the change to the care, the Tribunal finds a period of 7 months is not reasonable in the circumstances.
[10] 2.2.3 Below regular care determinations | Child Support Guide (dss.gov.au)
In her objection, A’s mother states A returned to her care on 2 August 2021. The Tribunal finds this is a notification of a change to the care. As this occurred 18 days after the change, the Tribunal further finds this notification was made within a reasonable period in the circumstances.
APPLICATION OF THE LAW
Period 13 December 2020 to 2 August 2021
The existing care determination is that his mother had 100% care of A. The Tribunal has found that from 13 December 2020 to 1 August 2021, A was in his father’s care 100% of the time, and there was a change to the percentage of care.
Under s 54G, the existing care determination must be revoked. The date of the revocation is at the end of the day before the care changed, which is 12 December 2020.
A new determination must then be made under s 49 of the Act. This is that A’s father had 100% care and his mother had 0% care.
A’s father notified of the change to the care 15 July 2021, which was not a reasonable period as contemplated by s 54G(1)(d) of the Act, and s 54G does not apply.
As s 54G does not apply, s 54F operates as there is a change to the cost percentage. Section 54F(3)(b)(i) of the Act sets out the date the revocation takes effect, which is the day before he notified of the change (s 54F(3)(b)(i)). This is 14 July 2021.
The date the revocation takes effect for A’s mother is the day before the change of care day which is 12 December 2020 (s 54F(3)(b)(ii)).
Period from 2 August 2021
In her objection dated 20 August 2021, A’s mother states A was in her care 100% of the time as he returned to Tasmania. This was not disputed by A’s father. It was not claimed that A’s father had a pattern of care for A at this time.
A’s mother has notified the Registrar that the care of A that is actually taking place does not correspond with the existing care for the purposes of the Act. The care period following the change to the care is from the time A returned to his mother’s care until he turned 18.
The change to the care is that A’s mother again has 100% care. As a result, the determination that A’s father has 100% care must be revoked under s 54G(1) of the Act as his mother notified the Registrar of the change to the care in 18 days, which the Tribunal considers a reasonable period for the purposes of s 54G(1)(d) of the Act.
This has effect from the day before the day on which the previous pattern of care ceased (s 54G(2)(b) of the Act). This is 1 August 2021.
As the determination has been revoked, a new determination must be made under s 49 of the Act. That determination is that A’s mother has 100% care and his father has 0% care from 2 August 2021.
DECISION
The decision under review is set aside and remitted for reconsideration in accordance with the following directions:
(a)For the period 13 December 2020 until 1 August 2021, A’s father had 100% care of A; and
(b)The existing determination of the percentage of care for A is revoked from 14 July 2021 in respect of his father and from 12 December 2020 for his mother.
(c)For the period from 2 August 2021, A’s mother had 100% care of A;
(d)The previous care determination is revoked for both parents from 1 August 2021 and replaced with a determination that A’s mother had 100% care, and his father had 0% care.

74. I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar.

.............[SGND]............................
Associate

Dated: 1 December 2022
Date of hearing: 29 September 2022

Representative for the Applicant:
Self-represented

Representative for the Respondent: Sam Cummings, Sparke Helmore Lawyers
Other Party: Self-represented

[2022] AATA 4069

1 December 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Procedural Fairness

Representative for the Applicant:	Self-represented
Representative for the Respondent:	Sam Cummings, Sparke Helmore Lawyers