WYZR and Child Support Registrar (Child support second review)

[2021] AATA 5085

WYZR and Child Support Registrar (Child support second review) [2021] AATA 5085 (22 December 2021)

Division:GENERAL DIVISION

File Numbers:         2019/5495; 2020/0065; 2020/0716-17

Re:WYZR

APPLICANT

AndChild Support Registrar

RESPONDENT

AndBMSR

OTHER PARTY

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date:22 December 2021

Place:Melbourne

The decisions under review are affirmed.

........................[SGD]................................................

The Hon. Matthew Groom, Senior Member

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 – decisions under review affirmed.

LEGISLATION

Administrative Appeals Act 1975

Child Support (Assessment) Act 1989

Child Support (Registration and Collection) Act 1988

CASES

Drake and Minister for Immigration and Ethnic Affairs (No.2), Re (1979) 2 ALD 634

P v Child Support Registrar [2012] FCA 1398

SECONDARY MATERIALS

Guides to Social Policy: Child Support Guide

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

22 December 2021

Introduction

1. This matter involves the review of four decisions of the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT1). Each of the decisions related to the percentage of care attributable to both the applicant, and the other party, in respect of their two children. The decisions under review are as follows:

   (a)a decision dated 2 August 2019 in which the AAT1 set aside the decision of a delegated officer of the Child Support Agency (the Agency) made on 29 November 2018 in respect of a change of care application made on 30 October 2018 and substituted a decision that from 30 October 2018 the percentage of care attributed to the parents of the children is 38% to the other party (the father) and 62% to the applicant (the mother);

   (b)the decisions dated 9 December 2019 in which the AAT1:

   (i)affirmed a decision of a delegated officer of the Agency made on 18 November 2015 in respect of a change of care application made on 7 October 2015 that from 2 October 2015 the percentage of care attributed to the parents of the children is 34% to the father and 66% to the mother;

   (ii)affirmed a decision of a delegated officer of the Agency made on 5 April 2019 in respect of a change of care application made on 15 March 2019 that from 28 February 2019 the percentage of care attributed to the parents of the children is 100% to the father and 0% to the mother; and

   (iii)set aside an earlier decision of an authorised objections officer of the Agency made on 24 July 2019 in respect of a change of care application made on 5 April 2019 and substituted a decision that from 3 April 2019 the level of care attributed to the parents of the children is 38% to the father and 62% to the mother.

   Further background facts

2. The applicant and the other party are the separated parents of two children, R and E.

3. The child support assessment in respect of the parties was first registered with the Agency on 17 June 2014.

4. On 7 October 2015, the father made a change of care application claiming that there had been a change in the care pattern for the children pursuant to court orders made on 19 August 2015 (the 2015 court orders).

5. On 18 November 2015, a delegated officer of the Agency made a new percentage of care determination. The officer determined that consistent with the 2015 court orders from 2 October 2015 the percentage care allocation was 34% to the father and 66% to the mother.

6. On 30 October 2018, the father made a further change of care application on the basis of final court orders made on 30 January 2017 (the final court orders).

7. On 29 November 2018, a delegated officer of the Agency decided to reject the father’s application for a change in the care percentage allocation. The father subsequently lodged an objection to that decision and on 4 March 2019 an authorised objections officer disallowed the objection.

8. On 15 March 2019, the father notified the Agency that the mother had undertaken an unplanned trip to Israel and that as a consequence he was at that time providing 100% care of the children.

9. On 27 March 2019, the father lodged an application with the AAT1 in relation to the 29 November 2018 decision. On 2 August 2019, the AAT1 set aside the decision under review and in substitution decided that from 30 October 2018 the level of care attributed to the parents was 38% to the father and 62% to the mother. The AAT1 based its decision on its assessment of pattern of care as at the date of the relevant change of care application and consistent with the arrangements set out in the final court orders.

10. On 5 April 2019, the mother contacted the Agency and advised that the care for the children had changed following her return from overseas and had resumed the arrangements that existed prior to her travel. On that same date, a delegated officer of the Agency decided that from 28 February 2019 the care percentage allocation was 100% for the father and 0% for the mother.

11. On 13 May 2019, a delegated officer of the Agency decided that from 4 April 2019 the care percentage allocation was 35% for the father and 65% for the mother.

12. On 15 May 2019, the mother lodged objections to decisions made on 18 November 2015, 5 April 2019 and 13 May 2019.

13. On 24 July 2019, an objections officer of the Agency decided to disallow the mother’s objection to the decision made on 18 November 2015.

14. On the same date an objection officer also decided to disallow the mother’s objection to the decision made on 5 April 2019.

15. Also on the same date an objections officer decided to allow in part the mother’s objection to the decision made on 13 May 2019 deciding that from 4 April 2019 the percentage care allocation was 38% for the father and 62% for the mother based on its assessment of the pattern of care established in accordance with the final court orders.

16. On 29 July 2019, the mother applied for a review with the AAT1 in respect of each of the decisions made on 18 November 2015, 5 April 2019 and 24 July 2019.

17. On 9 December 2019, the AAT1 decided that the decision under review made on 18 November 2015 was affirmed, the decision under review made on 5 April 2019 was affirmed and the Tribunal set aside the decision under review made on 24 July 2019 and in substitution decided that with effect from 3 April 2019 the care percentage allocation was 38% for the father 62% for the mother.

    Relevant legislative provisions and policy

18. The legislative provisions relevant to this review are set out in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

19. The Act sets out the statutory scheme for the calculation of child support which requires an assessment of the percentage level of care each parent provides for the child. The provisions in Division 4 of Part 5 of the Act require the Agency (or the Tribunal standing shoes on review) to determine whether the existing care determination is correct, whether it can be revoked and if so, what new care percentage should be set.

20. The Tribunal has had regard to sections 87AA and 96A of the Registration Act and also sections 49, 50, 54A, 54F, 54G and 54H of the Act.

21. In giving consideration to the issue for determination, the Tribunal has also had regard to the Child Support Guide (“the Guide”). The Tribunal accepts that it is appropriate to use the policy guidance unless there are cogent reasons not to do so.[1] The Tribunal is satisfied that there are no such reasons.

    [1] See P v Child Support Registrar [2012] FCA 1398 and also Re Drake and Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634.

    Issues to be determined

22. The issues to be determined by the Tribunal are whether, in respect of the change of care applications made on 7 October 2015, 30 October 2018, 15 March 2019 and 5 April 2019:

    (a)the existing determination of percentage care should be revoked; and if so,

    (b)from what date; and if so

    (c)what the percentage of care under each new determination should be, and from what date; and

    (d)the date of the effect of the new determinations.

    Contentions and consideration

    Change of care notification 7 October 2015

23. The mother contends that the determination made on 18 November 2015 pursuant to the change of care application of 7 October 2015 is not reflective of the actual pattern of care in place from 2 October 2015 and should be varied. The mother contends that the father’s care in 2015 was generally consistent with the court orders including the 2015 court orders. The mother told the Tribunal that the father’s care in 2014 and the first part of 2015 had varied for each of the children. The mother contends that the determination does not take account the period of time the father only had care of one of the children; does not take account of the father’s graduated increase in care through the course of 2015 and into 2016; nor does it take account of the period the mother had 100% care of the children during international trips during 2015. The mother told the Tribunal that the father’s care increased over a period of time. It was initially up to 3 nights per fortnight then to 4 nights and by 2016 it had increased to 5 nights.

24. With respect to 2017 and beyond, the mother contends that she had a greater share of the care of the children as a consequence of her having care during Jewish holidays and while overseas with the children which was not fully made up under the make-up provisions provided for in the final court orders. The mother gave evidence that she had 100% of care of the children for extended periods while on international trips during the course of 2017 and again in 2018.

25. The mother produced a copy of a series of calendar entries for the period from 2014 through to 2019 in support of her contentions. The calendar entries purport to demonstrate the days each parent had care of the children. Based on the calendar entries provided the mother calculates that the relevant care percentage for 2015 should be 15.6% to the father and 84.4% to the mother; for 2016 should be 31% to the father and 69% to the mother; for 2017 should be 33% to the father and 67% to the mother; for 2018 should be 36% to the father and 64% to the mother; and for 2019 should be 30% for the father and 70% for the mother.

26. In his evidence to the Tribunal the father disputes the calculations provided by the mother and contends that little weight should be given to the calendar entries because they are entries that the mother had documented after the fact for the purpose of these proceedings. The father told the Tribunal that he believed the care pattern as the date of notification was substantially consistent with the 2015 court orders which provided for him to have 4 nights per fortnight and then 5 nights per fortnight from February 2016. The father contends that the 2015 court orders made allowance for swaps of time to provide for holidays or overseas trips but that it was not until the final court orders that detailed provisions were made for these arrangements. The father told the Tribunal that while the mother had care of the children for Jewish holidays and when the mother was overseas visiting family in Israel between 2015 and 2018 those arrangements had been agreed and were provided for either by agreement for swaps of time or expressly in the case of the final court orders.

27. The father’s evidence was that the 18 November 2015 determination was substantially correct although he did maintain that there had been an underestimation of his care from October 2015 due to what he claimed was an agreed extra Thursday in the father’s care. The father’s evidence was that from October 2015 his care should be 35% and not 34% as had been determined. The father also maintains that the determinations should reflect the adoption of the final court orders from January 2017 and not October 2018. The father’s evidence was that the correct percentage of care from January 2017 to October 2018 should be 38% not 34%.

28. The Tribunal found both parties to be credible witnesses and recognises the difficulty that all parties have in seeking to recall exactly the nature of care for a period dating back several years now. The Tribunal accepts the father’s contention that little weight should be given to the calendar entries provided by the mother as evidence of actual care. In reaching this view the Tribunal means no disrespect to the mother. The Tribunal accepts that they were a good faith attempt by the mother to assist. When asked when the calendar entries were put together the mother conceded that they were put together more recently although she maintained they are reliable as they were based on the court orders and known holiday arrangements and from her memory.

29. The Tribunal is satisfied that from 2 October 2015 the pattern of care arrangements were largely consistent with the 2015 court orders and that any variations from those arrangements are explained as variations by agreement which do not alter the general pattern of care. The Tribunal is satisfied that the pattern of care for this period as determined by the AAT1 is correct. Consistent with this finding and based on the evidence before it the Tribunal is satisfied that the care pattern from 2 October 2015 was 34% to the father and 66% to the mother.

30. The Tribunal notes that in lodging her objection to the 18 November 2015 determination the mother did so substantially out of time and that therefore in giving effect to a review of the determination the Tribunal would need to be satisfied that special circumstances exist that prevented the mother from lodging her objection in time in determining the effective date of the review decision.[2] The mother submitted that special circumstances existed that prevented her from lodging her objection in time on the basis of her poor level of English and also due to her being overwhelmed by personal circumstances including her separation from her husband and concern for her sick mother. In light of the Tribunal’s findings above there is no requirement to make a finding on this point.

    Change of care notification 30 October 2018

    [2] See section 87A(1) of the Registration Act.

31. The mother contends that the decision of the AAT1 made on 2 August 2019 in respect of the change of care application of 30 October 2018 is not reflective of the actual pattern of care in place as at the time of notification and should be varied. The mother contends that in the course of 2017 the father had care of the children for 33%; in the course of 2018 for 36% and in the course of 2019 for 30%. Again, the mother contends that account should be had to time spent with the children on Jewish holidays and while on trips to Israel where she had 100% of care and which were not fully made up under the make-up provisions. The mother conceded that some swap arrangements occurred during this period but that they do not account for all of the variations that occurred.

32. The father contends that AAT1 decision in respect of the 30 October 2018 notification is correct although he maintains that the commencement of the change in care pattern should be from the date of adoption of the final court orders on 30 January 2017 and not 30 October 2018. The father acknowledges that the mother had care for international trips and Jewish holidays but maintains that this was done substantially in accordance with the provisions of the final court orders. The father maintains that he had contacted the Agency prior to 30 October but that the Agency failed to act on the earlier notification. The father acknowledges that there were swaps made between the parties in relation to particular days during this period but that these were done by agreement and consistent with the provisions for agreement and make-up in the final court orders.

33. The Tribunal is satisfied that the determination of the pattern of care by the AAT1 on 2 August 2019 in respect of the 30 October 2018 notification is correct. Having reviewed the final court orders and also having considered the evidence of both parties the Tribunal is satisfied that the pattern of care as at the time of notification involved the father having care of the children for 5 nights of care per fortnight with approximately 50% of holidays. There is specific allowance for the children to be in the mother’s care during Jewish holidays and on other special occasions and for those periods to be made up through make up provisions. There is also specific allowance for the children to be in the father’s care during Christian holidays and on other special occasions and for those periods to also be made up through the make-up provisions. The orders make allowance for some travel overseas subject to certain conditions. The orders also allow for other variations by agreement. Having regard to the oral evidence of both parties and the other evidence before it the Tribunal is satisfied that those arrangements were being substantially adhered to with any variations not being sufficiently material to constitute a change in the general pattern of care. The Tribunal is satisfied that this equates to approximately 38% care to the father and 62% to the mother.

34. There is no independent evidence to support the father’s assertion that he notified the Agency of a change in the pattern of care following the adoption of the final court orders prior to 30 October 2018. In the absence of such evidence the Tribunal finds that the notification occurred on 30 October 2018. In those circumstances and having regard to section 54F of the Act, the Tribunal is satisfied that it is appropriate that the change in care pattern takes effect from 30 October 2018 and not prior to that date. Accordingly, the Tribunal is satisfied that the care pattern from 30 October 2018 was 38% to the father and 62% to the mother. This is consistent with the AAT1 decision on 2 August 2019.

    Change of care notification 15 March 2019

35. The mother contends that the change of care pattern determination made on 5 April 2019 in respect of the change of care notification on 15 March 2019 is incorrect as it does not take account provision for international travel in the final court orders. The cause of the notification was the mother’s international trip to visit family in Israel. Based on the evidence before it the Tribunal is satisfied that the mother was absent from Australia between 28 February 2019 and 3 April 2019. The father had 100% care of the children during that one-off block of time.

36. The mother’s evidence was that the trip was due to a family emergency. The mother explained to the Tribunal that the trip was arranged at very short notice as a consequence of those circumstances. The Tribunal accepts the mother’s evidence in this respect.

37. The mother contends that her international trip during this period should be treated no differently to other international trips she had undertaken with the children in prior years and for which specific provision is made in the final court orders. The mother contends that if the determination to allow a block of 100% care is to apply to her trip to Israel in February 2019 then there should be recognition of her 100% care during earlier international trips with the children. The mother contends that the trip to Israel in these circumstances was unavoidable and should not constitute a change in the pattern of care.

38. The father explained to the Tribunal that he notified the Agency of the mother’s absence from Australia because he considered it to be appropriate to do so. While the father maintains that the trip was not in accordance with the provisions made for international travel in the final court orders he told the Tribunal that he had not intended for his notification to result in a one-off block of change of care.

1. Having heard directly from both parties the Tribunal accepts the mother’s representations in relation to the unavoidable nature of the trip. The Tribunal also acknowledges that in making the notification to the Agency the father had not intended that there be a determination in relation to the one-off block of care. Notwithstanding these acknowledgments, The Tribunal is satisfied that the determination granting a one-off block of 100% care to the father was the correct decision in all of the circumstances. While the final court orders make allowance for international trips those orders contemplate annual trips to Israel with the children for the purpose of being able to celebrate Jewish holidays with family. The provisions do not contemplate the circumstance of an international trip by the mother without notice and without the children for the length of time that occurred unless that has been done by agreement. There is no evidence that there was prior agreement to the trip in accordance with the final court orders. The Tribunal is satisfied that the father had 100% care of the children during this period. Accordingly, the Tribunal finds that for the period from 28 February 2019 the father had care for 100% and the mother for 0%.

   Change of care notification 5 April 2019

2. The mother maintains her position that as at the date of notification the children were back in her care with a pattern consistent with that in place prior to her trip. The mother contends that the pattern of care at this time was not strictly in accordance with the final court orders. The mother contends that the father’s percentage of care should be reduced in accordance with her submissions regarding the period from 30 October 2018.

3. The father contends that the pattern of care as at the date of notification on 5 April 2019 was substantially in accordance with the final court order consistent with his submissions in respect of the period from 30 October 2018.

4. The Tribunal accepts that the mother arrived home prior to midnight on 3 April 2019 and is satisfied that in the circumstances of the case it is appropriate that the mother be treated as having had care of the children on that day. For this reason, the Tribunal is satisfied that the correct date of effect of the change of care is 3 April 2019 which is consistent with decision of the AAT1.

5. Further, having considered the evidence of both parties the Tribunal is satisfied that at that time the mother resumed care of the children on 3 April 2019 the pattern of care was substantially consistent with that in place prior to 28 February 2019. Accordingly, consistent with the Tribunal’s findings above in respect of that earlier period the Tribunal is satisfied that the pattern of care from 3 April 2019 is 38% to the father and 62% to the mother.

   DECISION

6. The decisions under review are affirmed.

   .

   .

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

............................[SGD]............................................

Associate

Dated: 22 December 2021

Dates of hearing:	20 October 2020; 15 March 2021 and 21 May 2021
Applicant:	By phone
Advocate for the Respondent:	J. Forsyth & M. Underhill
Solicitors for the Respondent:	Mills Oakley
Other Party:	By phone