XQTJ and Child Support Registrar (Child support second review)

[2024] AATA 328

XQTJ and Child Support Registrar (Child support second review) [2024] AATA 328 (4 March 2024)

Division:GENERAL DIVISION

File Number:          2023/2442

Re:XQTJ

APPLICANT

AndChild Support Registrar

RESPONDENT

AndKZDM

OTHER PARTY

DECISION

Tribunal:R Cameron, Senior Member

Date:4 March 2024

Place:Melbourne

The Tribunal affirms the reviewable decision.

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

R Cameron, 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 – appeal from decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal – percentage of care – care period – pattern of care – Federal Circuit and Family Court of Australia interim consent order – decision affirmed

Legislation

Administrative Appeals Tribunal 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) (1979) 2 ALD 634
P v Child Support Registrar (2013) 138 ALD 563

Re: Parent A Child Support Registrar and Anor (2013) 137 ALD 426

Secondary Materials

Department of Social Services, Child Support Guide (Version 4.78, 2 January 2024)

REASONS FOR DECISION

R Cameron, Senior Member

4 March 2024

INTRODUCTION

1. The applicant seeks review of a decision made on 21 July 2022 by a member of this Tribunal in the Social Services & Child Support Division which set aside a previous decision made by an officer of the Child Support Agency under the Child Support (Assessment) Act 1989 (‘CSA’). In substitution for the decision so set aside, the Tribunal determined that from 4 October 2021, the percentage of care of the applicant’s children was 65% to her and 35% to her former partner (‘reviewable decision’).[1]

   [1] The reviewable decision is document T2 of the T documents.

2. It is useful to briefly outline some facts relevant to this matter that are not in controversy. The applicant (the mother) and the other party to this application (the father) have four minor children born in 2013, 2015, 2017 and 2019.

3. From approximately early 2018 several assessments have been made under the CSA concerning the percentage of care of the mother and the father with respect to the children. Not all the details of every determination or assessment need be reproduced for the purposes of these reasons.

4. The current matter has its beginnings in an interim order made by consent in the Federal Circuit and Family Court of Australia (Division 2) on 4 October 2021. The contents of that order need not be referred to in their entirety. However, at paragraph 3(a), it provided as follows:

   The children spend time and communicate with the Father as follows:

   (a)Each week from 10.00/11.00am Friday until 9.00pm Sunday (if the children [Child 1] & [Child 2] are attending onsite learning the Father will collect them from school at the commencement of his time with them, and noting on occasions the Mother may require flexibility with the starting time).[2]

   [2] The relevant Order is document T18 of the T documents.

5. The father notified the Child Support Registrar on 7 October 2021 that the interim consent order had been made in the Federal Circuit and Family Court. When notifying the Child Support Registrar, the father advised of the applicable ‘Care Details’. He stated that his care percentage was 35% and the mother’s 65%.[3]

   [3] A telephone file note of the conversation between the father and an officer of the agency of 7 October 2021 is document T19 of the T documents.

6. Subsequently, by a decision made on 10 February 2022, the Child Support Registrar determined that the mother provided 72% of care and the father provided 28% care of their children as and from the date of the interim consent order made on 4 October 2021 (‘February 2022 determination’).[4]

   [4] The February 2022 determination is document T33 of the T documents.

7. Subsequent to the February 2022 determination, the father, as he was entitled to do, lodged an objection to that determination in a phone conversation with an officer of the respondent agency on 24 February 2022.[5] Amongst other things, the grounds relied upon by the father in lodging his objection were that he considered the percentage of care as calculated in the February 2022 determination did not correctly reflect the provisions of the interim consent order made on 4 October 2021. He contended in that phone call that if the terms of the consent order were properly applied, his percentage of care would amount to 35% per year.

   [5] A telephone file note of the conversation between the father and an officer of the agency on 24 February 2022 is contained in document T40 of the T documents.

8. A judge of the Federal Circuit and Family Court of Australia (Division 2) made further orders on 24 March 2022. The orders are extensive. Included in the orders were different ‘Parenting’ arrangements.[6]

   [6] The orders of the Federal Circuit and Family Court of Australia made on 24 March 2022 are document T5 of the T documents. The ‘Parenting’ provisions are found at paragraphs 28 to 36 of those orders.

9. A delegate of the Child Support Registrar made what is described as an “Objection decision” on 29 April 2022. Fairly extensive reasons were provided by the delegate in making the Objection decision.[7]

   [7] The Objection Decision of 29 April 2022, together with attached ‘Details of Objection Decision’ is document T51 of the T documents.

10. The father made an application to the Social Services & Child Support Division of this Tribunal on 30 April 2022 seeking review of the Objection decision made on 29 April 2022.

11. As noted earlier, on 21 July 2022 a member of the Social Services & Child Support Division of this Tribunal made the reviewable decision.

    THE EVIDENCE BEFORE THE TRIBUNAL

12. There was both documentary and oral evidence adduced at the hearing of the application.

13. Insofar as documentary evidence, there were the T documents and supplementary T documents.

14. The applicant and the other party both gave oral evidence and were cross-examined.

15. The applicant lodged both a Statement of Issues, Facts and Contentions, together with a Statement of Issues. Attached to the applicant’s Statement of Issues, Facts and Contentions was a table which contained a breakdown by date, day, start time, end time, hours with the respondent and percentage of care for that week. The applicant, in her evidence, identified that table and asserted that the entries recorded in it were true and correct.

    CONSIDERATION

    Care period

16. The Tribunal considers that it is appropriate in the first part of any consideration of the matters requiring adjudication in this application to determine what the applicable ‘care period’ is. The term is defined in s 5 of the CSA by adopting the meaning given, amongst others, in s 50(1)(a) of that Act. Section 50(1)(a) of the CSA provides that the care period is such period that the Registrar considers to be appropriate having regard to all the circumstances. Section 50 of the CSA Act being applicable because the Tribunal concludes that the responsible parent, in this case has had, or is likely to have, a pattern of care of the children concerned, whereas s 49 would only apply were the Tribunal to conclude that there was no pattern of care on the part of the responsible person during the relevant care period.

17. Assistance in the application and construction of the term is also to be obtained from the Child Support Guide (‘Guide’). As is well known, whilst the Guide is not binding on a decision-maker such as the Tribunal, it should, unless there is good reason to the contrary, be taken into account where appropriate.[8]

    [8] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 639-645.

18. Relevantly, the Guide addresses the definition of the term “Care period” as follows:

    Care periods other than 12 months

    While a care period would generally be the 12-month period starting from the date the actual care of the child changed, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate. The Registrar will consider specific circumstances of each case to determine the appropriate care period.

19. In this matter the Tribunal concludes that the applicable care period should commence on 4 October 2021 when the interim order was made by consent in the Federal Circuit and Family Court of Australia (Division 2) concerning parenting arrangements between the parties. Further, the Tribunal considers that the care period for the purposes of this application should conclude on 24 March 2022 when a further interim order was made by the Federal Circuit and Family Court of Australia (Division 2) concerning parenting arrangements.

20. No party before the Tribunal at the hearing of the application contended otherwise. The Child Support Registrar in her submissions quite properly contended that it was open to the Tribunal to determine that the applicable care period was from 4 October 2021 to 24 March 2022.

21. Finally, the Tribunal considers that this determination of the applicable care period is also appropriate given the findings of another decision of a Senior Member of this Tribunal between the parties in AAT2 Decision 2022/1413. The Tribunal found that the care percentage determinations between the parties prior to 29 January 2021 in relation to the parties remained in place until revoked consequent on their replacement by a new determination made as a result of the orders made in the Federal Circuit and Family Court of Australia (Division 2) on 4 October 2021.

    Determination of percentage of care

22. The Tribunal considers that, having determined the applicable care period, the remaining issue for it to resolve is to determine the parents’ percentage of care within the meaning of the applicable sections of the CSA.

23. Division 4 – ‘Percentage of Care’ of Part 5 – ‘Administrative Assessment of Child Support’, establishes the framework for assessing the annual rate of child support payable by a parent for a child.

24. The starting point in applying the provisions of Subdivision B – ‘Determination of percentage care’, requires the Tribunal, standing in the shoes of the decision-maker, to determine whether or not the ‘responsible person’ concerned has had, or is likely to have, ‘a pattern of care for the child during the care period.’

25. The term ‘pattern of care’ has been the subject of some consideration by several decisions of this Tribunal. A useful expression of the meaning of the phrase is to be found in a decision of Member Webb in Re: Parent A Child Support Registrar and Anor.[9] Part of the relevant paragraph states as follows:

    A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, the pattern looked for is not one characterised by precise confirmation of detail, day by day, or by unbending regularity. Some accommodation may be expected for the vicissitudes of circumstances in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case. This interpretation is consistent with the Guide, which provides that minor departures from the normal care of the child will not constitute a change to the pattern of care.

    [9] (2013) 137 ALD 426, 432 [33].

26. It is evident from the foregoing analysis of the evidence before the Tribunal that both the applicant and the other party, during the applicable care period, had a pattern of care for the children during such period. Given this conclusion, the application of s 50 of the CSA arises. It is not necessary for the purposes of these reasons to reproduce s 50. However, once the Registrar (or the Tribunal in this case as decision-maker) is satisfied that the responsible person has had a pattern of care, they are obligated to determine the responsible person’s percentage of care for the child during the care period. Such percentage determined must be a percentage that corresponds with the actual care of the child that the Registrar (or the Tribunal, in this case, as decision-maker) is satisfied that the responsible person has had during the care period.

27. The Guide also provides assistance to decision-makers concerning the determination of a pattern of care that each parent has of the children. It does emphasise that minor departures from normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination.

28. The applicant lodged and served a detailed Statement of Facts, Issues and Contentions dated 4 September 2023. It has been considered by the Tribunal.

29. The applicant relied upon several grounds to contend that during the relevant care period the children were under her actual care an average of 68% of the time with the remaining 32% with the other party. She approached the task of determining the time of actual care by reference to the extensive material in tabulated form attached to her Statement of Facts, Issues and Contentions.

30. In further support of the applicant’s contention that the precise ‘Start Time’ and ‘End Time’ recorded in the table accurately stated the actual times on each occasion that the other party had contact with the children, she also reproduced a series of text messages that passed between her, the other party and the other party’s mother. For various reasons that need not be further articulated, the usual practice was for the applicant to leave the children with the other party’s mother at the commencement of the relevant contact period.

31. Additionally, the applicant contended that the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 4 October 2021 were confusing. In both her submissions and evidence given to the Tribunal by affirmation, the applicant stressed that her interpretation of the orders was to afford her the maximum flexibility possible. She also contended, both in her evidence and in her submissions, that she always intended that she would hand the school aged children over after school and the younger children usually around or after 11.00am depending upon her work commitments. The orders finally approved by the Court did not include express provisions that accorded with her intentions. Some emphasis was placed on the fact that the applicant usually took the children to the other party’s mother who lives in an apartment in the city. In short, the applicant consistently contended that the precise terms of the court orders of 4 October 2021 were never intended to be strictly adhered to and should not be for the purposes of determining the outcome of this application.

32. In response to some questions in cross-examination, the applicant readily conceded that prior to signing the consent order which was approved by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 4 October 2021, she thoroughly read them, asked a lawyer retained by the other party concerning their provisions questions and understood their terms to the best of her ability. To her credit she conceded that her misunderstanding was that she needed to obtain the other party’s consent to get the flexibility that she thought was incorporated in those orders.

33. The applicant drew the Tribunal’s attention to the objects of the CSA as another ground of support for her contention that the number of nights she cared for the children was the best measure to be applied by it as decision-maker in determining the applicable percentage of care. In particular, she relied upon the objects of the CSA articulated in s 4(2)(a) that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support. Expanding upon this contention, she asserted that there was nothing in the other party’s circumstances that distinguished him from any other parent to be assessed by the mechanism provided for in the CSA.

34. The other party, in his evidence and submissions, highlighted several things. He pointed to several occasions where the applicant had delivered the children to him far later than the times prescribed by the orders of the Federal Circuit and Family Court of Australia (Division 2) of 4 October 2021. He gave very specific examples of the considerable lateness of handover of the children by reference to a paragraph of an affidavit sworn by him on 18 March 2022.[10] Details of these alleged breaches of the orders need not be reproduced for the purposes of these reasons. Nonetheless, the Tribunal is still, as was submitted by the Registrar, tasked with assessing the pattern of actual care.

    [10] The affidavit is ST4 of the Supplementary T Documents.

35. Additionally, the other party also pointed to specific days where there was no allowance for his contact with the children (or days that he was otherwise entitled to have contact with them) identified in the table produced by the applicant. Those days were October 29, November 5, 12, 19, 26, December 3, 10 and 17 2021 and February 4, 11, 18, 25 and March 4, 11 and 18 2022. An examination of the table reveals this omission, or put in other words, a failure to give him credit for those days when he was entitled to have them under the prevailing court order. In short, he stated that in his calculation, there were only 15 days in contention that were being debated before the change in parenting arrangements brought about by the orders of the Federal Circuit and Family Court of Australia (Division 2) made on 24 March 2022 occurred.

36. The applicant and the other party made opposing submissions as to the methodology that the Tribunal should adopt as the best measure to apply in calculating their percentage of care.

37. The applicant, primarily relying upon a section of the Guide, contended that the number of nights each party cared for the children was the best metric to adopt in calculating the percentage of care. This observation in the Guide, of course to a significant extent, replicates what is provided for in s 54A(1) of the CSA. That subsection provides the actual care of a child that the person has had, or is likely to have, during a care period may be worked out based on the number of nights that the decision-maker is satisfied that the child was, or is likely to be, in the care of the person during the care period.

38. The other party contended that both the subsection and the Guide confer a discretion on the decision-maker in deciding what the best measure is to be adopted in calculating the percentage of care. He of course pointed to the proviso contained in the Guide that notes that there may be some occasions where only counting the nights of care does not accurately reflect the caring arrangements for the children concerned. He pointed out that if the hours of care during the care period were calculated by reference to the precise terms of the orders of the Federal Circuit and Family Court of Australia (Division 2) made on 4 October 2021, there were 59 care hours of a total of 168 total weekly hours which amounted to a percentage of 35%.

39. It should be observed that a decision-maker, when determining the percentage of care under s 50(2), is not limited in any way by s 54A. It has also been held that the intention behind s 54A is to provide guidance in determining actual care, but if the methodology in s 54A, which focuses on nights in care, is not appropriate in the particular circumstances of the case to work out actual care, it is open to the decision-maker to employ a different methodology.[11]

    [11] The helpful observations of Wigney J in P v Child Support Registrar (2013) 138 ALD 563, 577-8 [58]-[62] are referred to.

1. The Tribunal considers that there is much force in the other party’s contention that the application of nights of care does not accurately reflect the caring arrangements that the parties entered into for the children during the care period as determined. The reality is that the Court orders did, as the other party contends, provide for care from Friday through to Sunday during very specific hours. Therefore, the Tribunal accepts the calculations based upon the hours of care as contended for by the other party.

   DECISION

2. Accordingly, the Tribunal does not consider that there are grounds for revoking the existing determination. By reason of the foregoing, the reviewable decision is affirmed under s 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

42.     I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Associate

Dated: 4 March 2024

Date of hearing:

8 December 2023

Applicant:

Advocate for the Respondent:

Other Party:

Self-represented

Mr Tim Noonan, Services Australia

Self-represented