WWYY and Child Support Registrar (Child support second review)

WWYY and Child Support Registrar (Child support second review) [2021] AATA 38 (22 January 2021)
Division:General Division
File Number: 2020/0665
Re:WWYY
APPLICANT

AndChild Support Registrar
RESPONDENT

AndWHDH
OTHER PARTY

DECISION
Tribunal:Member K. Parker
Date:22 January 2021
Place:Melbourne

The Tribunal sets aside the AAT1 decision dated 15 January 2020 and in substitution, decides that the Objection Decision made on 14 August 2019 be set aside and in substitution, the Tribunal decides that the First and Second Care Percentage Determinations be revoked and that a new care percentage determination be made in relation to Child E and Child C, as follows:
1.WWYY had a care percentage of 0% and WHDH had a care percentage of 100% as from 24 October 2017 to 3 May 2018, to take effect from 24 October 2017;
2.WWYY had a care percentage of 57% and WHDH had a care percentage of 43% as from 4 May 2018 to 31 December 2020, to take effect from 13 June 2019; and
3.WWYY had a care percentage of 50% and WHDH had a care percentage of 50% as from 1 January 2021 to the present time, to take effect as from 1 January 2021.

............[]...........................................................
Member K. Parker

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 – review of care percentage determinations – actual care varied from arrangements as provided for in Court orders – conflicting evidence of extent of actual care – nomination of relevant “care period” by which to assess extent of actual care – comparison of different care records – decision under review set aside – care percentage determinations revoked – new care percentage determination made to reflect actual care – date of effect of new care percentage determination
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Secondary Materials
Guides to Social Policy Law, Child Support Guide - Using the Child Support Guide | Child Support Guide (dss.gov.au)

REASONS FOR DECISION
Member K. Parker
22 January 2021
INTRODCUTION

The Applicant, WWYY, and the Other Party, WHDH, are the separated parents of two children born in 2009 and 2012 respectively, who the Tribunal will refer to as Child C and Child E, or collectively as the Children.
This application seeks review of a decision made by the Social Services and Child Support Division of the Tribunal (AAT1) which relates to an objection decision made in respect of a care percentage decision made under the Child Support (Assessment) Act 1989 (Cth) (CSA Act).
BACKGROUND
First Care Percentage Determination – 24 October 2017
WWYY asserted that on 23 October 2017, he “lost care” of the Children because of an interim intervention order made against him (which was subsequently withdrawn). Computer records produced by the Respondent, the Child Support Registrar (CSR), to the Tribunal indicate that the “care details” (i.e. that WHDH had 100% of the care and WWYY had 0% of the care of the Children as from 24 October 2017) were notified to the Child Support Agency (CSA).[1] The CSR described this care record as the “existing care determination” which had been made in respect of the Children. [2] The Tribunal will refer to this determination as the First Care Percentage Determination.
[1] Refer T-Documents T22/119. The T-Documents are a set of documents lodged with the Tribunal by the Child Support Registrar pursuant to obligations arising under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
[2] Refer paragraph [3] of the CSR’s Statement of Facts, Issues & Contentions dated 22 May 2020 (CSR’s SFIC).
Agreement to change care arrangements – 4 May 2018
WWYY asserted that on 4 May 2018, he reached an agreement with WHDH in respect of the care of the Children and resumed shared care of the Children with WHDH as from this day. Shortly after, on 31 May 2018, this agreement was recorded in consent orders issued by the Federal Circuit Court of Australia. Those orders provide for each parent to care for the Children for 50% of the time (Court Orders).[3]
[3] Refer T-Documents T15.
On 7 June 2018, WHDH gave notice to the Family Assistance Office, for the purpose of Family Tax Benefit entitlements, that she had 50% care of the Children as from 31 May 2018, reflective of the care arrangements as set out in the Court Orders.[4]
[4] Refer T-Documents T3.
Care Percentage Determination – 23 July 2018
On 23 July 2018, a delegate of the CSR made a new care percentage determination (Second Care Percentage Determination) to the effect that:[5]
(a)WHDH had 100% of the care of the Children from 24 October 2017 to 30 May 2018; and
(b)WWYY had 50% of the Children and WHDH had 50% care of the Children as from 31 May 2018.
[5] Refer T-Documents T5.
The Second Care Percentage Determination dated 23 July 2018 states that the change to WWYY’s and WHDH’s percentage of care did not affect their respective child support assessments.[6]
[6] Refer T-Documents T5/14 & 16.
WWYY lodged an objection to Second Care Percentage Determination – 13 June 2019
On 13 June 2019, WWYY lodged (by telephone) an objection to the Second Care Percentage Determination (Objection).[7] This Objection was made under s 80A of the Child Support (Registration and Collection) Act1988 (Cth) (CSRC Act) which provides that a liable parent may lodge an objection to a care percentage decision. An objection is a request for reconsideration of an original decision by a different person (an objections officer) who was not involved in making the original decision.
[7] Refer T-Documents T9/55.
CSA records show that WWYY stated, as his grounds for the Objection, as follows:[8]
I am objecting to this decision because the care changed from 4 May 2018, I was not able to change the care at that point in time as I had so much on. However, I have since gone back and look at the care and found I have had 57% care, not 50% from 31 May 2019.
[8] Ibid.
WHDH’s response to the Objection
Computer records produced to the Tribunal show that on 24 July 2019, the CSA contacted WHDH about the Objection. WHDH disputed the basis of the Objection and she informed the CSA that “50/50 care” had taken place as per the Court Orders. WHDH also informed the CSA that she would not be providing any further evidence as she had already provided the Court Orders.[9]
[9] Refer T-Documents T13.
Objection Decision – 14 August 2019: notice given on 18 September 2019
The objections officer made a decision in relation to the Objection on 14 August 2019 and WWYY and WHDH was notified of the decision in writing on 18 September 2019 (Objection Decision).[10] The Objection Decision allowed the Objection, in part.
[10] Refer T-Documents T16.
The Objection Decision states as follows:[11]
We have made the decision to reflect the care of [Child E] and [Child C] as 41% to [WHDH] and 59% to [WWYY] from 1 May 2018.
WHEN WILL THIS CHANGE TAKE EFFECT?
This change will be applied to the child support assessment from 13 June 2019.
The effect of the objection decision is: The rate of child support payable by [WHDH] is increased from 13 June 2019.
…
Where there is a change to a parent’s level of care which would change his or her cost percentage under the Act, the existing care determination must be revoked under section 54F. Under the existing care percentages their respective cost percentages are 100% to [WHDH] and 0% to [WWYY]. Under the new care determination [WHDH’s] cost percentage will be changed to 37% for [Child E] and [Child C] and [WWYY’s] cost percentage will be 63%.
The previous care being provided for [Child E] and [Child C] is revoked.
[11] Refer T-Documents T16/91 & 110. It appears that the figures referred to in the second last paragraph are typographical errors and that they should have been the same as the figures in the first paragraph. Nothing turns on this anomaly.
The objections officer was not satisfied that that there were “special circumstances” in this case that prevented WWYY from lodging the Objection earlier than he did. Accordingly, the objections officer found that the change to care percentages as set out in the first paragraph of the Objection Decision (reproduced in paragraph [12]), would be applied to the assessment of child support as from 13 June 2019.
WHDH lodged an objection to the Objection Decision which was subsequently withdrawn
On 16 September 2019, WHDH submitted a Department of Human Services form entitled “Objecting to a Child Support decision”. The basis of WHDH’s objection to the Objection Decision was that she claimed she cared for the children “50:50” and she referred to the Court Orders. WHDH stated that she had the Children “seven days on and seven days off”. She stated that “at odd times” she had allowed WWYY time to take the Children to see WWYY’s mother and also when WHDH was working, so she could take extra night shifts, but that otherwise WHDH stated on this form, “we are 50:50”.
On 1 October 2019, WHDH withdrew her objection to the Objection Decision[12] and instead, applied for an “AAT first review” as detailed below (being the correct procedure).
[12] Refer T-Documents T18 and T19.
AAT first review
On 23 October 2019, WHDH lodged an application seeking an AAT first review of the Objection Decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).[13]
[13] Refer T-Documents T20.
WHDH stated on the AAT1 application for review form as follows, when asked why she had considered the Objection Decision to be wrong:
[WWYY] does not have 59% of the children.
We have Family Law Court custody orders in place, May 2018 of Shared Care 50:50. I do so admit on half a dozen time, thinking nothing of it, to the benefit of the children I allowed a holiday to visit his mother in [name of city omitted]. They may have been gone 10 day on two occasions. Longer than the week they ought to have been. But it was purely for the sakes of the children. When selling the marital home, which I embarked on six months of inspections, I have ask for an extra night here and there to assist with such. More recently I commence full time work and ask [WWYY] a few occasions to take the kids from school as not to have them in After School Care 5 days in a row.
Please not since May 2018 till now, it has been an exception. In no ways a regular occurrence. I have the children week on, week off commencing Saturdays and returning the following.
The Tribunal was informed that WWYY also sought review in relation to the date of effect of the Objection Decision. He considered that it should have been back dated to when the change in care took place in May 2018, rather than taking effect only from the date he lodged his Objection (i.e. 13 June 2019).
WWYY First Care Record
In support of WWYY’s case, he produced a diary or record of care to the AAT1 comprising a marked-up calendar which he said he had maintained in respect of the period 1 May 2018 to 20 October 2019, showing the nights he had cared for the Children (WWYY First Care Record).[14] The WWYY First Care Record is before this Tribunal and is included in the T-Documents.
[14] Refer T-Documents T16/91.
AAT1 decision
On 15 January 2020, the AAT1 decided to set aside the Objection Decision and in substitution, decided that “the percentages of care that apply to the child support assessment with effect from 31 May 2018 are to record [WHDH] as having 50% care of the [Children] and [WWYY] as having 50% care of the [Children]” (AAT1 decision).[15] The AAT1 considered it appropriate to make a “point-in-time consideration”, and did not take into consideration the actual care provided to the children.
[15] Refer T-Documents T2/9.
In making this decision, the AAT1 revoked “the existing care percentage determinations, which had applied since 24 October 2017” under s 54F of the CSA Act. This Tribunal regards the reference to the existing care percentage determinations by the AAT1 to be reference to the First Care Percentage Determination made on 24 October 2017 and the Second Care Percentage Determination made on 23 July 2018. The AAT1 concluded that the revocation would take effect on 30 May 2018, being the day before the AAT1 considered there to be a change in care, namely, 31 May 2018, on the basis that WHDH had “advised Centrelink of that change” on 7 June 2018 which falls within 28 days of the date of change in care event.[16]
[16] Refer T-Documents T2/9.
Because the AAT1 had concluded that WWYY’s Objection should have been disallowed, the presiding member did not proceed to a consideration of the date of effect of the Objection Decision, which had been raised by WWYY (as mentioned above).
AAT second review
On 6 February 2020, WWYY applied to the General Division of the Tribunal (this Tribunal) for an AAT second review of the AAT1 decision.
ISSUES
WWYY seeks review by this Tribunal of the AAT1 decision. As detailed above, the AAT1 set aside the Objection Decision and substituted it with a decision to revoke the existing care percentage determinations (i.e. the First Care Percentage Determination and the Second Care Percentage Determination) and to make a new care percentage decision as referred to in paragraph [20] of these Reasons for Decision.
Accordingly, this review will involve a consideration of whether the First Care Percentage Determination and the Second Care Percentage Determination should be revoked, and a new care determination made in accordance with the CSA Act. In turn, this will involve the Tribunal considering the following issues:
(a)was there a change or changes to the percentage of care by WWYY and WHDH of the Children at any time after 24 October 2017;
(b)what period should be taken as the “care period” in the circumstances of this case by which to assess the percentage of care by WWYY and WHDH of the Children; and
(c)the date of effect of any new care percentage determination to be made.
LEGISLATIVE FRAMEWORK
Provisions relating to care percentage determinations
In the CSR’s SFIC, the CSR aptly summarised the provisions regarding the care percentage determinations under either ss 49 or 50 of the CSA Act as follows:[17]
28.Section 49 applies if the Registrar is satisfied that the person has had or is likely to have no pattern of care.
29.Section 50 of the Assessment Act essentially provides that where the Registrar is satisfied that a person has a pattern of care during a care period for a child for whom an assessment is to be made, the Registrar must determine the responsible person’s percentage of care for the child during the care period based on the actual care of the child that the responsible person has had or is likely to have during the care period.
30.The Registrar takes issue with the AAT1 observations that the ‘child support scheme does not provide for a reconciliation or audit of care’ [paragraph 16] and ‘my consideration is a point-in-time consideration’ [paragraph 17].
[17] Refer the CSR’s Statement of Facts, Issues and Contentions dated 22 May 2020 (CSR’s SFIC).
Under the CSA Act, a new care percentage determination must not be made unless the existing care percentage determination is revoked.[18]
[18] Refer ss 49(1)(b)(i) and 50(1)(b)(i) of the CSA Act.
Under s 54F of the CSA Act, the CSR (or this Tribunal upon review) must revoke an existing care percentage determination if the responsible persons’ percentages of care have changed and the cost percentages would change under a new care percentage determination. The relevant part of this provision is reproduced below (emphasis added):
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).
…
(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.
Under s 54H, the CSR (or this Tribunal upon review) also has a discretion to revoke an existing care percentage determination if the responsible parents’ percentages of care have changed, even if the cost percentage of each parent has not changed. The relevant part of this section is reproduced below (emphasis added):
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).
…
(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.
EVIDENCE
WWYY’s Statement

On 1 May 2020, WWYY submitted a “Statement of Facts” (WWYY’s Statement). WWYY asserts as follows in WWYY’s Statement:
(a)he met WHDH in 2005 and they were married in 2009;
(b)he and WHDH separated in 2017, but continued to live under the same roof;
(c)WWYY was evicted from the family home in October 2017 after WHDH sought an intervention order against WWYY;
(d)WHDH had 100% of the care of the Children from 23 October 2017 to 4 May 2018;
(e)on 4 May 2018, an agreement was reached between WHDH and WWYY that they would care for the Children on a 50/50 basis which led to the consent Court Orders being made on 31 May 2018;
(f)WWYY claimed that the first visit he was to have with the children for two nights was extended to eight nights. WWYY stated that, “it soon became apparent that the children were very happy to spend extra nights at my house, I was happy to take them whenever possible and [WHDH] seemed keen to frequently make other arrangements”;
(g)the Court Orders required any changes to the care arrangements to be agreed in writing and “the majority of this” was done by text message;
(h)WWYY did not include the text messages in his statement, but made it clear he could provide evidence of any disputed dates. He stated that no specific dates had been disputed;
(i)WWYY First Care Record was noted as not disputed by WHDH in the Objection Decision;
(j)the only evidence available shows that the care percentages from 1 May 2018 to 23 July 2018 were approximately 57% in WWYY’s care and 43% in the care of WHDH; and
(k)the only evidence available shows that from 23 July 2018 to 11 May 2019 the care percentages were approximately 61% in WWYY’s care and 39% in the care of WHDH.
The Tribunal has also considered WWYY’s written response to the submissions of the CSR. WWYY states that his care of the Children commenced on 4 May 2018, and not 1 May 2018. There was no challenge to this by WHDH and the Tribunal finds accordingly, i.e. that a change to the pattern of care of the Children took place on 4 May 2018 being that date that WWYY first resumed caring for the Children after he ceased living at the former family home.
WWYY Second Care Record
After the hearing took place before this Tribunal, and in accordance with a direction by the Tribunal, WWYY submitted a second care record showing the nights he had cared for the Children during a subsequent period, 12 May 2019 to 31 August 2019 (WWYY Second Care Record).
WHDH First Care Record
Before the hearing, WHDH submitted an untitled document in respect of the period 4 May 2018 to May 2019 indicating which parent was caring for the children (WHDH First Care Record).[19]
[19] Refer T-Documents T7/41.
The first section of the WHDH First Care Record (reproduced below) appears to be a list of disputed dates (in reference to the WWYY First Care Record). WHDH referenced text messages as evidence of the basis upon which she disputed those dates:
20th April 2018 9.01 am Text: [WWYY] requested I take children due to his work commitments.
6th May 2018 13.47 am Text: Commencing to work out shared care arrangements.
6th May 2018 12.11 pm Text: Continue to plan shared care arrangements.
8th May 2018 15.29 pm Text: Requesting [WWYY] to take children a night so I may attend to legal matters both on our behalf.
15th May 2018 8.55am Text: [WWYY] requesting extra nights with children as his mother is down from Sydney. I allowed this.
27th May 2018 10.33 am Text: Allowing kids to stay weekend with [WWYY] mother. Requesting I have them another weekend. Still planning shared care arrangements.
11th June 2018 16.07pm Text: [Child C] requesting to stay at Dads. I allow it. I have [Child E] at home.
14th June 2018 11.38 Text: Care is erratic. [WWYY] says “takes time to settle down.”
18th June 2018 13.42 Text: [WWYY] requesting I take kids.
20th June 2018 8.05 am Text: Asking for help for school holidays.
20th June 2018 8.01 am Text: I help [WWYY] by taking [Child C] earlier in the evening.
29th June 2018 Text: [WWYY] requesting I have kids 30th July for work commitments.
29th July 2018 16.12 pm Text: [WWYY] asking I take kids next day. (INCORRECT ON [WWYY] RECORDS!)
14/08/2109 13.48 pm Text: I request kids longer to take them to QLD.
15/08/2018 13.31 pm Text: Requested [WWYY] to have them an extra night. [WWYY] agreed in view I will be having them next 10 days.
27/09/2019 16.03 pm Text: [WWYY] requests another night due to being late traveling from Sydney.
1/11/2018 Text: I only have [Child E]. Halloween. [Child C] stays at [WWYY]. (find text)
7/11/2018 14.32 pm Text: I took the kids Friday night.
1/05/2018 - 15/06/2018 - erratic care: family arrangements were only being sought.
50:50 custody was given 31/05/2018 but it took some time for care to settle between us. Both requesting extra days and dates.
The second section of the WHDH First Care Record reproduced below, appears to be a record of care in respect of the period 4 May 2018 to May 2019, with some additional commentary at the end:
4/05/2018 - 11/05/2018 I allowed this to occur in view I had had 100 percent of kids.
18/05/2018 - 28/05/2018 [WWYY] requested the children to stay with him as his mother was down from Sydney I allowed this.
11/06/2018 [Child C] requested she stay at Dad. I allowed this.
29/06/2018 - 15 /07/2019 School holiday time - time was spilt between us.
Friday - Friday started more regularly: Pattern commenced.
[WWYY] Friday 15/06/2018 - 22/06/2018
15/06/2018 - 21/06/2018 Children with [WWYY]
22/06/2018 - 28/06/2018 Children with [WHDH]
School hols
13/07/2018 - 19/07/2018 Children with [WWYY] as per orders
20/07/2018 - 26/07/2020 Children with [WHDH] as per orders
27/07/2018 - 2/08/2018 Children with [WWYY] as per orders
3/08/2018 - 9/08/2018 Children with [WHDH] (ONE NIGHT to assist with my work)
10/08/2018 - 16/08/2018 Children with [WWYY] as per orders
17/08/2018 - 21/08/2019 (Shared the time around here as Child E’s birthday and I took them to QLD for holiday)
14/09/2018 - 20/09/2018 Children with [WHDH] as per orders
21/09/2018 - 27/09/2018 Children with [WWYY] as per orders
28/09/2018 - 4/10/2019 Children with [WHDH] as per orders
5/10/2018 - 11/10/2018 Children with [WWYY] as per orders
12/10/2018 - 18/10/2018 Children with [WHDH]l 17/10/2019 INCORRECT DATE
20/10/2108 - 25/10/2019 Children with [WWYY]
26/10/2018 - 1/11/2019 Children with [WHDH] (ONE NIGHT Child E with Mum / Child C with Dad)
2/11/2018 - 8/11/2018 Children with [WWYY] as per orders
9/11/2018 - 16/11/2019 Children with [WHDH] (THREE NIGHTS with Dad, requested due to sale of matrimonial house)
30/11/2019 - 6/12/2018 Children with [WWYY] as per orders
8/12/2018 - 13/12/2018 Children with [WHDH] (ONE NIGHT assisting with selling of house)
14/12/2018 - 20/12/2108 Children with [WWYY] as per orders
24/12/2018 - 4/01/2018 Children with [WWYY] 2 WEEKS as per orders
4/01/2019 - 18/01/2019 Children with [WHDH] 2 WEEKS as per orders INCORRECT DATE
18/01/2019 - 24/01/2019 Children with [WWYY] as per orders
26/01/2019 - 31/02/2019 Children with [WHDH]l
1/02/2018 - 7/02/2019 Children with [WWYY] as per orders
8/02/2019 - 14/02/2019 Children with [WHDH] as per orders
15/02/2019 - 21/02/2019 Children with [WWYY]
22/02/2019 -28/02/2019 Children with [WHDH] as per orders
1/03/2019 - 7/03/2019 Children with [WWYY] as per orders
8/03/2019 - 14/03/2019 Children with [WHDH] INCORRECT DATE 14/03/2019 with me
15/03/2019 - 21/03/2019 Children with [WWYY] as per orders
22/03/2019 - 28/03/2109 Children with [WHDH] as per orders
29/03/2019 - 4/04/2019 Children with [WWYY]
5/04/2019 - 11/04/2019 Children with [WHDH] as per orders
10/04/2019 - 20/04/2019 Children with [WWYY] (REQUESTED 10 NIGHTS FOR HOLIDAY)
26/04/2018 - 3/05/2019 Children with [WHDH] as per orders
From 01/05/2018 - 15 June 2018 care was very erratic. [WWYY] had not had the children for seven months prior to this date, and I allowed him more opportunity to have them.
LATE JUNE 2018 / EARLY JULY 2018 school holidays were shared between us
MID JULY 2018 - MID AUGUST 2018 - CARE WAS SHARED
MID AUGUST 2018 - EARLY SEPT - ERRACTIC MID SEPT 2018 - MID NOV - CARE WAS SHARED
MID NOV 2018 - LATE NOV - ERRACTIC DEC SHARED
XMAS HOLIDAY - JAN SHARED CARE 2 WEEKS ON 2 WEEKS OFF
LATE JAN 2019 - MAY - CONSISTENTLY SHARED CARE
Time with Kids has been requested by [WWYY] (for extra night) to visit Sydney. We both have requested a change of nights due to work commitments.
I have requested swaps in the assistance of selling the matrimonial house as I solely responsible for preparing the house to sell and six months of inspections.
[WWYY] was incorrect with several dates as pointed out.
I have taken the children on a holiday and requested further nights as has [WWYY]. I allowed this for the benefit for the children’s wellbeing.
After several months of adjustment to the court order set in May 2108(sic), I made every effort to ensure the children had a regular pattern of care. I believed it was very important that there was as little change as possible to our agreed arrangement. I refused to believe [WWYY] had the children as much as he has suggested. When we settle into week / week off, I have identified many weeks where upon this pattern has been consistent.
At the beginning of 2019 I commenced a new relationship. I asked very little outside of the patten(sic) of 50:50. To this date I ask nothing of [WWYY].
WHDH Second Care Record
After the hearing (i.e. on 10 September 2020), WHDH lodged with the Tribunal and gave to the CSR and WWYY a second record of care (this time in the form of a spreadsheet), which covered the period 1 May 2018 to 11 September 2020 (WHDH Second Care Record).
CONSIDERATION
Actual care
The Tribunal is satisfied that at all relevant times since WWYY and WHDH separated, there was a “pattern of care” in respect of the Children for the purpose of satisfying s 50(1)(b)(ii) of the CSA Act and as such, any care percentage determination should be made under s 50 (and not s 49) of the CSA Act.
The Tribunal agrees with the CSR’s contention as set out in paragraph [30] of the CSR’s SFIC (see paragraph [26] above). This Tribunal considers that the relevant legislative provisions require that the actual care of the Children be considered (see the words highlighted in bold from ss 54F and 54H of the CSA Act, as shown in paragraphs [28] an [29]). In this case, as from 4 May 2018, the actual care of the Children diverged from the arrangements as prescribed under the Court Orders. As explained to the parties at the hearing, it does not matter what caused this divergence. The Tribunal can understand why WHDH might feel aggrieved by this approach, as her intention has been to prioritise the interests of the Children over her own when deciding to allow a divergence from the Court Orders. However, those reasons are an irrelevant consideration for the decision required to be made by this Tribunal under the assessment provisions in the CSA Act.
“Care period”
Any care percentage determination made by this Tribunal must be based on the actual care that was provided to the Children by each parent during the relevant “care period”. The actual care is usually assessed by counting the number of days when the Children stayed overnight with each parent.
The legislation does not define the term “care period”. The Child Support Guide (Guide) correctly identifies the absence of any definition for this term. The Guide provides a suggestion that a decision-maker might take the “care period” as being the 12-month period to follow on from the first day on which the care of the Children changed. However, this is ultimately a decision for the Tribunal to make, depending on the circumstances of each individual case and in some cases (albeit atypically), a period of more or less than 12 months may be taken as the care period.
There was common ground between WWYY and WHDH that the pattern of care that existed between 24 October 2017 and 3 May 2018 was that WWYY had 0% of care an WHDH had 100% of care of the Children. The Tribunal finds accordingly.
There was also common ground between WWYY and WHDH that at least from the start of 2020 until the present time, the care of the Children reverted to the “50:50” arrangement as provided for in the Court Orders. WHDH asserted that the actual care had reverted to the 50:50 arrangement as per the Court Orders from as early as the end of May 2019, but this was disputed by WWYY. The Tribunal was not satisfied on the evidence presented by WHDH that this was the case and finds that care reverted to a 50:50 basis only as from 1 January 2020.
In relation to the care that took place between 4 May 2018 and 1 January 2020, the Tribunal had before it records from both WWYY and WHDH covering the period 4 May 2018 to 31 August 2019. WHDH produced records for a period after 31 August 2019, but she did so after the hearing and the Tribunal was not satisfied that those records were kept contemporaneously as the care was being provided and therefore, were unreliable. The Tribunal considers it appropriate to take the period from 4 May 2018 to 31 August 2019 as the relevant “care period” (Care Period), for the purpose of assessing the percentage of care of the Children by WWYY and WHDH during the period 4 May 2018 and 31 December 2020.
Comparison of WWYY’s and WHDH’s care records
At the hearing, the Tribunal asked WHDH how she had prepared the WHDH First Care Record. WHDH confirmed that she had recreated it by going through her phone records (specifically, her phone calendar) and text messages. WHDH said she prepared it at about the time that she submitted this care record to the Tribunal. WHDH said if there was a change in the care of the Children, her practice was to record that change on her phone calendar.
At the hearing, WWYY told the Tribunal he had compared the WHDH Care Record to his care records. He said there were only three instances where WHDH had challenged the care days as marked in his care records, and “one day here or there” which he considered not to make any difference. In WWYY’s written submissions made in reply to WHDH’s submissions, WWYY stated that:
My diary of care accounts for 375 days of care. [WHDH] has disputed four of those dates. Proof of three of those dates is attached. I cannot find proof of one change, but in the process of checking, I found one date that was not recorded. The end result is that the percentage of care recorded has not changed. Details are below.
WHDH lodged a statutory declaration made by her boyfriend. At the hearing, WHDH told the Tribunal that her boyfriend did not commence living with her until November 2019 and that between January 2019 and November 2019 he stayed at her house on average, one or two nights per week. The Tribunal has not afforded any weight to this evidence as it was not sufficiently probative. WHDH’s boyfriend was not a direct witness to whether the children were staying overnight at WHDH’s house on a consistent basis until after November 2019, when he commenced living with them on a full-time basis.
WHDH also lodged a statutory declaration made by one of her friends. The Tribunal does not place any weight on WHDH’s friend’s evidence as this friend did not reside with WHDH. Therefore, WHDH’s friend was unable to directly observe when the children were staying overnight at the WHDH’s house.
WWYY points to three instances in July 2019 and August 2019 that he claimed WHDH’s records were inaccurate.
(a)The first instance was between 4 July 2019 to 14 July 2019. WHDH had marked the children as being in her care as per the usual “week on, week off” arrangements. However, WWYY provided evidence of text messages showing that the Children were in Sydney, and not in WHDH’s care, during that period.
(b)The second and third instances were on 1 August 2019 and 15 August 2019 respectively. WWYY provided screen shots of text messages showing that the Children were in his care on each of those day. This demonstrated that the respective entries on the WHDH First Care Record indicating that the Children were in her care on those days, were incorrect.
WWYY submits to the Tribunal that the WHDH First Care Record should be disregarded because it “has been assembled after the fact and even a cursory examination shows the record is inaccurate”. However, WWYY conceded that there were some errors in the entries in his own care record, as had been pointed out by WHDH. In his submission, WWYY stated as follows:
[WHDH’s] record disputes a number of dates in my diary of care. In examining this I have discovered a few errors. It appears [WHDH] had the children 30 July 2018. It appears I had the children 9 and 18 November 2018. It is not entirely clear about 16 November 2018. The end result is that either the care percentage is unchanged or I have one additional night not recorded.
WWYY gave evidence at the hearing that he maintained his care record on an ongoing basis. The Tribunal asked WWYY why he had not lodged his objection earlier than he did, given that he had taken the time to maintain such records from as early as May 2018 according to his evidence. WWYY told the Tribunal that he “didn’t know the extent of it”, because “it was only days here and there”. When asked, WWYY told the Tribunal that he had kept a care record because his lawyer had recommended that he do so. As mentioned above, WWYY said that he thought that if he lodged an objection at a point in time when his care records had only run for a couple of weeks, that “no one would care”. The Tribunal accepts that WWYY was being truthful in his explanation about why he held off lodging his objection, even though there are consequences for a responsible person if the objection is lodged 28 days after the date of change in care event.
The Tribunal asked WWYY how frequently he had updated the WWYY First Care Record. He said that he had done so on “most weeks”. He conceded that he did not update it every week, because “in some weeks, nothing changed”. He said that if the care changed, that he would correct it. WWYY said he had cross-referenced the WWYY First Care Record against his text messages to make sure it was correct.
On the evidence, the Tribunal finds that WWYY prepared his care records contemporaneously as the care was being undertaken by him during the period of May 2018 to August 2019. By contrast, the Tribunal considers that the WHDH Care Record was not contemporaneous but instead, it was a recreation of the care that took place by her based on WHDH’s other records (phone calendar and text messages). The Tribunal finds that WHDH only prepared the WHDH Care Record at such time as these matters became the subject of proceedings before this Tribunal and as such, considers them to be less reliable than WWYY’s care records.
As mentioned above, the Tribunal has found that the care records of both WWYY and WHDH were shown to contain errors, casting doubt on the accuracy of both those sets of records. However, the Tribunal has decided to accept the care records that were provided by WWYY, over those provided by WHDH, because:
(a)as mentioned in the above paragraph, WWYY maintained those records on a contemporaneous basis whereas WHDH did not; and
(b)WHDH conceded that before the end of May 2019, the Children had been in the care of WWYY in excess of the arrangements as provided for in the Court Orders and had sought to justify why that additional care by WWYY had taken place. Specifically, at the hearing, WHDH confirmed that she would accept that during the period May 2018 to 31 December 2018 that the Children were in the care of WWYY for between 55% and 59% of the time; and in the period 1 January 2019 to the end of the May 2019, that the Children were in the care of WWYY for 52% of the time.
Further, an opportunity was provided to WHDH to dispute any further dates but apart from a few of those dates, the information provided in the WWYY First Care Record largely remained unchallenged. For those reasons, the Tribunal accepts WWYY’s evidence as to the overnight care provided to the Children, as indicated on the WWYY First Care Record and the WWYY Second Care Record.

The WWYY First Care Record and WWYY Second Care Record, when considered together, record that WWYY had overnight care of the Children for 273.5[20] days in the period 4 May 2018 to 31 August 2019 (being the Care Period). The total number of days over this period is 485 days. Therefore, 273.5 ÷ 485 = 0.5639. Based on the rounding provisions in the CSA Act, this percentage is to be rounded up to 57%.
[20] This figure is shown as going to 0.5 because one of the days during this period was marked as not being in either parents’ care so I have allocated 0.5 to each parent.
Accordingly, the Tribunal finds that WWYY had 57% of care of the Children and WHDH had 43% care of the Children during the Care Period. That same level of care is presumed to have continued until 1 January 2021, at which time it is common ground as between WWYY and WHDH that the care reverted to the care as provided for in the Court Orders.
Accordingly, the Tribunal finds as follows:
(a)as from 27 October 2017 until 3 May 2018, WWYY had 0% care of the Children and WHDH had 100% care of the Children;
(b)as from 4 May 2018 until 31 December 2020, WWYY had 57% care and WHDH had 43% care of the Children; and
(c)as from 1 January 2021 until the present time, the Tribunal finds that WWYY had 50% care and WHDH had 50% care of the Children.
The Tribunal is satisfied that WWYY’s and WHDH’s cost percentage for the child will change upon a new care percentage determination being made by the Tribunal to reflect these findings for this reason, the Tribunal must revoke the First and Second Care Percentage Determination in accordance with s 54F of the CSA Act.
Date of effect
The CSR contends that if this Tribunal decides to revoke the “existing care determination” (which it defines in paragraph [3] In the CSR’s SFIC as being the First Care Percentage Determination), then “the date of effect of the Tribunal decision will turn on whether the Tribunal finds that s 87AA(2) of the [CSA] Act applies”.[21]
[21] Refer paragraph [52] of the CSR’s SFIC.
Subsections 87AA(1) and (2) of the CSA Act are reproduced below, as relevant:
87AADate of effect of objections relating to care percentage decisions that are allowed
(1)If:
(a)a person lodges, under section 80A, an objection to a care percentage decision; and
(b)the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and
(c)the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;
the date of effect of the review decision is the day on which the person lodged the objection.
(2)If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:
(a)…
(b)otherwise—the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.
…
WWYY lodged his Objection more than 28 days after the date of the Care Percentage Determination. WWYY claimed that “special circumstances” existed in respect of the late lodgement of his Objection, on account of the following:[22]
[WWYY] stated last year was a very hard year and had to get care of his kids, they were back and forth through court, however he had since gone through his care and noticed the care is not correct, he has actually had 57% care since 4 May 2018, and through has now lodged the objection.
[22] Refer T-Documents T9.
This Tribunal found at paragraph [52] of these Reasons for Decision that WWYY maintained his records of care contemporaneously as the care was provided to the Children. The Tribunal considers that consistent with this finding, if WWYY had enough time to maintain such care records on a contemporaneous basis, it can be inferred from this that he also had enough time to lodge an objection within 28 days from the date of the Second Care Percentage Determination. The Tribunal does not accept WWYY’s contention as set out in paragraph [50] above. The Tribunal finds that the reason WWYY did not lodge his Objection within 28 days, was due to his mistaken belief that he did not have enough evidence by the end of that 28 day period to show a consistent change to the pattern of care of the Children to support any such Objection, if he had lodged it at that time.
The Tribunal is not satisfied that WWYY’s reluctance to lodge his Objection within 28 days after the date of the Second Care Percentage Determination, because he did not consider there to be enough evidence by that stage to support any such Objection, does not constitute “special circumstances” which prevented WWYY from lodging an objection within 28 days. For this reason, the Tribunal concludes that its decision (and the new care percentage determination) is to be applied as from 13 June 2019, being the date upon which WWYY lodged his Objection.
CONCLUSION
Accordingly, the Tribunal sets aside the AAT1 decision and, in substitution, decides that the Objection Decision be set aside and in substitution, the Tribunal decides that the First and Second Care Percentage Determinations be revoked and that a new care percentage determination be made in relation to Child E and Child C, as follows:
(a)WWYY had a care percentage of 0% and WHDH had a care percentage of 100% as from 24 October 2017 to 3 May 2018, to take effect from 24 October 2017;
(b)WWYY had a care percentage of 57% and WHDH had a care percentage of 43% as from 4 May 2018 to 31 December 2020, to take effect from 13 June 2019; and
(c)WWYY had a care percentage of 50% and WHDH had a care percentage of 50% as from 1 January 2021 to the present time, to take effect as from 1 January 2021.

65.

66. I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

..................[sgd]......................................................
Associate
Dated: 22 January 2021

Date of hearing:

Date last submission/evidence lodged:

10 September 2020

23 September 2020

Applicant: By telephone

Advocate for the Respondent:
Mr Tim Noonan, Principal Government Lawyer, Litigation and Information Release Branch, Services Australia

Other Party: By telephone

[2021] AATA 38

22 January 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date of hearing: Date last submission/evidence lodged:	10 September 2020 23 September 2020
Applicant:	By telephone
Advocate for the Respondent:	Mr Tim Noonan, Principal Government Lawyer, Litigation and Information Release Branch, Services Australia
Other Party:	By telephone