XQTJ and Child Support Registrar (Child support second review)
[2023] AATA 50
•24 January 2023
XQTJ and Child Support Registrar (Child support second review) [2023] AATA 50 (24 January 2023)
Division:GENERAL DIVISION
File Number: 2022/1413
Re:XQTJ
APPLICANT
AndChild Support Registrar
RESPONDENT
AndKZDM
OTHER PARTY
Decision
Tribunal:Senior Member C. J. Furnell
Date:24 January 2023
Place:Melbourne
The Tribunal sets aside the decision under review in this proceeding.
In substitution for that decision, the Tribunal affirms the objection disallowance decision of 27 August 2021.
.........................[SGD]...............................................
Senior Member C. J. Furnell
Names used in all published decisions of this type are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988 (Cth).
Catchwords
CHILD SUPPORT – percentage of care – care period – whether there has been a change in the pattern of care – what is the correct percentage of care – hours of care basis for calculating actual care – determination of care during school day – decision under review set aside and substituted
Legislation
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Cases
Child Support Registrar v MQMV [2019] FCA 1171
Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533
EBZ20 v ECA20 [2022] FCA 1098
F v LP (Child Support) [2015] AATA 321 (unpublished)
Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473
Harpley and Secretary, Department of Social Services (Social services second review) [2020] AATA 2052
HMXZ and Child Support Registrar (Child support second review) [2021] AATA 520
KMDB and Child Support Registrar (Child support second review) [2019] AATA 5536
NHVK and Secretary, Department of Social Services (Child support second review) [2019] AATA 78
Norouz and Secretary, Dept of Social Services (Social services second review) [2018] AATA 2712
P v Child Support Registrar [2013] FCA 1312
Parent A and Child Support Registrar [2013] AATA 562
Polec & Staker & Anor [2011] FMCfam 959
Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Another [2008] AATA 607
Vendrell and Secretary, Department of Social Services [2014] AATA 22
VGLV and Child Support Registrar (Child Support Second Review) [2019] AATA 1097
ZHQF and Child Support Registrar (Child support second review) [2020] AATA 2936Secondary Materials
Child Support Guide Version 4.67 - Released 7 November 2022
REASONS FOR DECISION
Senior Member C. J. Furnell
24 January 2023
The applicant is the mother of four children and the other party is their father. The father and the mother are divorced.
At the time of the hearing of this proceeding, the children were aged 8, 7, 5 and 3. In these reasons they will be referred to as C1, C2, C3 and C4, respectively, each being a “Child” and together the “Children”.
The Tribunal is being asked by the mother to review a decision of its Social Services and Child Support Division (the “SSCSD”) made on 9 February 2022 (the AAT1 decision).[1] In that decision, the SSCSD determined that, for the purposes of the Child Support (Assessment) Act 1989 (Cth) (CSAA), the mother’s percentage of care of each Child was 65% and the father’s was 35%, as from 29 January 2021.
[1] T2, pp.11-16.
I have decided to set the AAT1 decision aside and, in substitution, have decided that, in the period from 29 January 2021 to 3 October 2021, the father’s percentage of care of each Child was less than 35% and the mother’s percentage of care exceeded 65%.
Before proceeding to outline my reasons for this decision, I propose first to identify some aspects of the legislative context and factual background.
Legislative context and Factual background
Under the CSAA, provision is made for the assessment of amounts to be paid by way of child support.[2] Child support payments are directed to ensuring “…that children receive a proper level of financial support from their parents”, with the level of that support being a function of “the costs of the children”.[3] A child’s costs are to be met by each of the child’s parents, according to their capacity to meet the costs.[4]
[2] EBZ20 v ECA20 [2022] FCA 1098 [1].
[3] CSAA, s 4.
[4] CSAA, s 35B.
A parent can meet the costs of a child through care for the child.[5] The extent to which a parent is taken to do so is reflected in the parent’s cost percentage.[6] A parent’s cost percentage is a function of the parent’s care percentage. [7] Hence, a parent’s percentage of care of a child affects the parent’s liability to make, and entitlement to receive, child support payments.
[5] Child Support Guide Version 4.67 - Released 7 November 2022 (the “Guide”) [2.4.5].
[6] Ibid: “A parent's cost percentage represents the percentage of a child's costs the person meets directly through care.”
[7] CSAA, s 55C.
For instance, if a parent’s care percentage at a particular time is:
(a)more than 65% but not more than 85%, the parent’s cost percentage will be 76% (albeit that such a parent will often not then be required to make any payments by way of child support[8]);
(b)more than 52% and less than or equal to 65%, the parent’s cost percentage will be 51% plus 2% for each percentage point over 53%;
(c)is 35% or more but less than 48%, the parent’s cost percentage will be 25% plus 2% for each care percentage point above 35%;
(d)14% or more but less than 35%, the parent’s cost percentage will be 24%.
[8] CSAA, s 40C.
Prior to 29 January 2021, the mother’s percentage of care for each Child was more than 65% but not more than 85%, giving her a cost percentage of 76%. More particularly, her care percentage was determined to be 70% for each of C1, C2 and C3, and 71% for C4. The father’s percentage of care for each Child was then less than 35% but more than 14%, giving him a cost percentage of 24%. More particularly, his care percentage was determined to be 30% for each of C1, C2 and C3, and 29% for C4.[9]
[9] T2, p.12.
On 12 February 2021, the father requested that there be new care percentage determinations made based on his hours of care of the Children (rather than on the number of nights that they were in his care). In his submission, this would result in his care percentage in relation to each Child being 35% as from 29 January 2021.[10]
[10] T9, p.90.
On 8 June 2021, the father’s request was refused, resulting in no change in the rate at which child support was payable.[11]
[11] T18, pp.131-134.
On 27 August 2021, the father’s objection to that refusal decision[12] was disallowed.[13] The decision-maker accepted that the father’s care percentages should be calculated on an hours in care basis but was not satisfied that the Children were in the father’s care in the hours the father had contended that they were, given the “contradictory” evidence provided by him and the mother.[14]
[12] T22, p.143: the objection was made on 9 June 2021, ie, within 28 days of service of notice of the decision-see Child Support (Registration and Collection) Act 1988 (CSRCA), s 87AA.
[13] T7, pp.85-88.
[14] T7, p.88.
The father sought the Tribunal’s review of the disallowance decision,[15] resulting in the AAT1 decision of 9 February 2022.
[15] CSRCA, s 89. He did so within 28 days of service of notice of the objection decision: see CSRCA, s 95N.
Pursuant to the AAT1 decision, the objection disallowance decision of 27 August 2021 was set aside. In substitution, it was decided to revoke the then existing care percentage determinations from 28 January 2021 and to replace them with determinations with respect to each Child which attributed a care percentage to the father of 35% and a care percentage to the mother of 65%, with effect from 29 January 2021. Effectively, the SSCSD adopted the father’s submissions.
The mother applied to the Tribunal for review of the AAT1 decision.[16] The Tribunal has jurisdiction to conduct that review because it was a decision on review of a care percentage decision.[17]
[16] T1, pp.1-10.
[17] CSRCA, s 96A(b) describes the jurisdiction being exercised by the Tribunal in this proceeding. See the similar analysis in Child Support Registrar v MQMV [2019] FCA 1171 at [28] & [46].
A care percentage decision includes a decision as to the particulars of an administrative assessment, to the extent that the decision involves (wholly or partly) a determination of a person’s percentage of care for a child made under a provision of Subdivision B of Division 4 of Part 5 of the CSAA.[18]
[18] CSRCA, s 4(1), definition of “care percentage decision”. Definitions in the CSRCA are, generally, incorporated into the CSAA: see CSAA, s 6.
The AAT1 decision involved a review of such a decision. In reviewing the objection disallowance decision of 27 August 2021, the SSCSD was reviewing a decision on an objection to the continued operation, after 29 January 2021, of determinations as to the father’s percentage of each Child’s care. Those determinations were, I infer, made under Subdivision B of Division 4 of Part 5 of the CSAA. It is that Subdivision which contains the provisions of the CSAA which deal with the making of care percentage determinations. The father was seeking to have the determinations to which he objected revoked so that new determinations could be made with effect from 29 January 2021.
Hence, the AAT1 Decision was a decision on review of a care percentage decision and entailed the making, as requested by the father, of new care percentage determinations with effect from 29 January 2021.
In making new care percentage determinations with effect from 29 January 2021, the power being exercised by the SSCSD would be that conferred by s 49 of the CSAA or s 50 of the CSAA.[19]
[19] Nothing in the material before the Tribunal is suggestive of what is defined in the CSAA as a care arrangement being in place (at least before 4 October 2021), and there being no submission to the effect that special circumstances exist which warrant a departure from the provisions of the CSAA relating to the administrative assessment of child support: CSAA, s 98B. See the grounds of departure in CSAA, s 117.
Subject to the need for revocation of any pre-existing determination (a matter to which I will return), a care percentage determination could be made under:
(a)s 49 of the CSAA if the person concerned was considered to have had, or be likely to have, no “pattern of care” in relation to the relevant child in the “care period.” In such a case, the person’s percentage of care of the child in the care period must be determined to be zero.
(b)s 50 of the CSAA if the person concerned was considered to have had, or be likely to have, a “pattern of care” in relation to the relevant child in the “care period.” In such a case, the person’s percentage of care of the child in the care period must be determined.
Given the terms of those provisions, the making of a care percentage determination in relation to a person and a child requires identification of a care period, an assessment of whether the person had a pattern of care of the child in the identified care period and a determination of the person’s percentage of care of the child in the care period.
In this proceeding, the father submits, in effect, that a care period in relation to the Children commenced on 29 January 2021. It was then, according to the father, that a change of significance occurred in relation to the extent to which he provided care to the Children.[20] While the mother accepted that there had been a change in the Children’s care arrangements as from commencement of the school year on 28 January 2021,[21] she did not agree that any resultant change in the extent to which the father provided care to the Children was significant.
[20] See, for example, Parent A and Child Support Registrar [2013] AATA 562 at [35] where it is said that “[t]o my mind, the conception of “care period” is sufficiently broad to encompass recurrent cycles or patterns of care for a child. It may commence or end upon a change of significance in the actual care of the child, whereby an existing arrangement or pattern of care for the child is broken or changed. The duration of a period of care is to be determined having regard to all the circumstances.” See also VGLV and Child Support Registrar (Child Support Second Review) [2019] AATA 1097 at [7]:“It is appropriate for actual care to be taken into account only for the period up until the date on which the pattern of care changed”; Parent A and Child Support Registrar [2013] AATA 562 at [33].Guide 2.2.1: a care period starts “from the day on which the actual care of a child began or changed (the date of event).”
[21] T41, p.210. See T10, p.93 where the mother, on 27 January 2021, proposed a change in the Children’s care arrangements.
Accepting for the moment the father’s submissions in this regard, any care period commencing on 29 January 2021 would end on 3 October 2021. This is because on 4 October 2021 orders were made by consent in the Federal Circuit and Family Court of Australia[22] (being orders of which father gave notice to the respondent on 7 October 2021[23]). Consequent on those orders, new care percentage determinations took effect as from 4 October 2021, based on the father having the care of each Child from 10am on Fridays until 9pm on Sundays.[24] Pursuant to those new determinations, the mother’s care percentage with respect to each Child was determined to be 65%, while the father’s was determined to be 35%. Any care percentage determinations in place immediately preceding the new determinations taking effect would have been revoked on the day before the date of the new determinations (in other words, on 3 October 2021), given the provisions of the CSAA relating to the making of determinations (as will be soon outlined).
[22] T43, p.214-224.
[23] T42, p.213.
[24] See T46, p.259. While this was not apparent from the documentation before the Tribunal, the respondent advised at the hearing that new determinations had been made to reflect the Court’s orders.
This results in a care period commencing 29 January 2021 (assuming for the moment that the father is correct in submitting a material change in the parties’ pattern of care then occurred) and ending on 3 October 2021. I appreciate that the Guide[25] suggests that a care period should ordinarily be a period of 12 months. Here, however, we are only dealing with the past so that there is no need for flexibility to deal with potential, future changes. Further, there is no material before me suggestive of any other specific, measurable, change in care arrangements in the care period I have adopted.
[25] Guide 2.2.1 and 2.4.5.
The second matter to be addressed under the care percentage determination provisions entails an assessment of whether the father had a pattern of care of each Child.
The pattern of care concept is not defined in the CSAA. In essence, however, it would seem to be constituted by a flexible form or sequence of events with respect to a child’s care on which a prediction of future events might be based, albeit that minor departures from the normal care of a child will not give rise to a change in the pattern of care.[26]
[26] Parent A and Child Support Registrar [2013] AATA 562 at [33].
In considering a person’s pattern of care, the actual care of the child in question in the relevant care period must be considered.[27] However, exactitude is not required. Instead, what has been characterised as a “broad brush approach” is acceptable,[28] presumably in recognition of the inevitably fluctuating demands on parental time.
[27] NHVK and Secretary, Department of Social Services (Child support second review) [2019] AATA 78 at [46].
[28] Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Another [2008] AATA 607 at [20], cited with approval in Harpley and Secretary, Department of Social Services (Social services second review) [2020] AATA 2052 at [73]. See also Norouz and Secretary, Dept of Social Services (Social services second review) [2018] AATA 2712 at [34]; ZHQF and Child Support Registrar (Child support second review) [2020] AATA 2936 at [25].
In my assessment, the father had a pattern of care in the identified care period (29 January 2021 to 3 October 2021). It is not in dispute that, in that period, the father regularly had the care of each Child on each Friday and Saturday night. The Children were with the mother during the week and with the father on weekends.[29]
[29] As also found in AAT1 at [17].
As the father had a pattern of care, any new care percentage determination in his favour would need to be made under s 50 of the CSAA (recalling that a determination under s 49 is only made in relation to a person who has no pattern of care in a care period).
This leads us to the last issue under s 50 of the CSAA; the determination of the father’s percentage of care of each Child in the 29 January 2021 to 3 October 2021 care period.
As previously indicated, a care percentage determination under s 50 of the CSAA might only be made if any pre-existing determination is first revoked.[30] This is consistent with the fact that such a determination only takes effect on its “application day”, being, generally, the day that begins immediately after the day on which revocation of the pre-existing determination takes effect.[31]
[30] CSAA, s 50(1)(b).
[31] CSAA, s 54B(2)(c)(ii): noting no suggestion that either parent has less than “regular care” of a child.
The circumstances in which a pre-existing determination may be revoked are identified in ss 54F, 54G and 54H of the CSAA.
The “effects” of these sections were recently described in the Tribunal’s decision in HMXZ.[32] There,[33] those effects were described as follows:
·section 54F requires that the CSR must revoke an existing Care Determination if there is a change in the percentage of care that would result in a change to a person’s cost percentage in relation to a child;
·section 54G requires that if a parent was to have at least 14% care (53 nights per year), the CSR must revoke the existing Care Determination if the parent’s percentage of care falls below 14% despite the other parent’s making the child available to them; and
·section 54H provides a discretion to the CSR to revoke the existing Care Determination if there is a change in the percentage of care that does not result in a change to the cost percentage.
[32] HMXZ and Child Support Registrar (Child support second review) [2021] AATA 520.
[33] Ibid at [19].
Given the parties respective submissions (to be outlined shortly) and the material before me, only s 54F is of potential relevance.
Section 54G is not relevant as it is not suggested that either the father’s or mother’s percentage of care of a Child fell below 14% at any relevant time.
Section 54H is also not relevant. In light of the parties’ submissions, the change in care percentages in dispute is one which would, were it adopted, result in a change in cost percentages. Standing in the shoes of the SSCSD, the Tribunal is being asked, in essence, whether new care percentage determinations ought to be made with effect from 29 January 2021. If those determinations were made (as, in the AAT1 decision, the SSCSD decided they ought to be), both the father’s and mother’s cost percentages would change from those in place prior to 29 January 2021. For instance, the father’s cost percentage would increase from 24% to 25%.
This leaves s 54F. Care percentage determinations applicable prior to 29 January 2021 could be (and, indeed, would be required to be) revoked under s 54F if the father’s submission concerning his care of the Children was to be accepted.[34] This is because, as mentioned, acceptance of that submission would see a change in the care percentage attributable to him which resulted in a change in his cost percentage.
[34] Under CSAA, s 54F(3), given the father’s prompt notice of the alleged change in care, any revocation would take effect on the day before the change of care day, being, “…the first day on which the care of the child that was actually taking place ceased to correspond with the responsible person's percentage of care for the child under the determination”: CSAA, s 5 (definition of ‘change of care day’). In this matter, that means revocation would take effect on 28 January 2021.
This brings us to the issue of whether the father’s submission concerning his care of the Children in the relevant care period (29 January 2021 to 3 October 2021) ought to be accepted.
Submissions as to care
As stated earlier, any care percentage determination in the circumstances would be made under s 50 of the CSAA. Pursuant to that section, a person’s percentage of care of a child in a care period must be determined so that it “corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.”[35] As submitted by the respondent, as we are here dealing with a care period that is in the past, regard is to be had to the care that actually occurred in the care period.[36]
[35] CSAA, s 50(3).
[36] F v LP (Child Support) [2015] AATA 321 (unpublished) at [54]-[58].
The father submits, in relation to each Child, that the actual care he had of the Child in the period in question is, in percentage terms, 35%. Implicitly, he accepts that the Children were in the mother’s care when not in his care.
In particular, the father stated that the regular care arrangement in place since 29 January 2021 had each Child being in his care from 9am on Fridays until 9pm on Sundays[37] (which, as a percentage of hours in a week, is around 35.71%,[38] representing a care percentage of 35%[39]).
[37] T9, p.91; T23, p.144.
[38] T9, p.91.
[39] Note that when determining care percentages, if a percentage is less than 50%, it is rounded down to the nearest whole percentage: CSAA, s 54D.
As noted earlier, acceptance of the father’s submission would require that the determinations in place prior to 29 January 2021 be revoked under s 54F of the CSAA, given that it would result in a change in his cost percentage with respect to each Child.
The mother urges the Tribunal not to accept the father’s submission. Instead, she submits, in relation to each Child, that the actual care the father had of the Child in the period in question is, in percentage terms, less than 35%.[40] Implicitly, she contends that the Children were in her care when not in the father’s care.
[40] T28, pp.153-159.
According to the mother, the father did not have the care of the Children from 9am Fridays until 9pm on Sundays. Instead, his care of the Children:
(a)Commenced, in the case of C3 and C4, “on average from 11am Friday” and, in the case of C1 and C2, on each Friday when they were picked up from school at 3.30pm; and
(b)Ended when he dropped them off to the mother “on average 8.30pm Sunday”.[41]
[41] T28, p.155; T41, p.210; Applicant’s undated statement of issues (A SFIC).
As a percentage of hours in a week, this is around 31.55% in the case of C1 and C2 and 34.23% in the case of C3 and C4.
Acceptance of the mother’s submission would result in the continued application of the determinations in place prior to 29 January 2021, up until 3 October 2021. Their earlier revocation would not be warranted under any of ss 54F, 54G and 54H. Absent revocation, replacement determinations under s 50 could not be made.
I digress to note that the percentage of care calculations reflected in the parties’ submissions are based on their respective contentions concerning the hours in which the Children were in the father’s care in the care period.
In this regard, the actual care that a person has had, or is likely to have, of a child during a care period is generally worked out based on the number of nights in the care period that the child is, or is likely to be, in the care of the person[42] (being a method of assessing a person’s actual care of a child expressly approved of in the CSAA[43]).
[42] Guide 2.2.1.
[43] CSAA, s 54A(1): a person’s actual care of a child “may be” worked out based on the number of nights that the child was, or is likely to be, in the care of the person in the care period.
Hours in care is, however, recognised in the Guide as an alternative method of determining the extent of a person’s actual care of a child.[44] It has, for instance, been used where a person’s financial responsibility for a child reflects a level of care in disconformity with care determined on the basis of nights in care.[45] Hence, it has been said that the “cost associated with caring for a child…” might, in some cases, “…favour an assessment of the hours in care rather than nights in care.”[46]
[44] Guide, 2.2.1.
[45] Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533 at [14]; Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473 at [12].
[46] Vendrell and Secretary, Department of Social Services [2014] AATA 22 at [34].
Costs of a child’s care or financial responsibility for such care is not, however, determinative as to the most appropriate basis upon which to measure the extent to which a child is actually in the care of a person. The underlying issue is whether hours in care “…more accurately reflects the actual care arrangements than nights in care”[47] so that, “…in determining an equitable outcome, it may be appropriate in a particular case to consider the actual hours of care…”.[48]
[47] Ibid at [45].
[48] Norouz and Secretary, Dept of Social Services (Social services second review) [2018] AATA 2712 at [34].
Here, the father submits, in essence, that a determination based on hours in which the Children were regularly in his care in each week of the identified care period would be a more accurate reflection of the extent to which the Children were actually in his care than one based on nights in care. According to the father “…there were increased financial burdens on me as a carer that was not reflected by using the nights-of-care calculation.”[49] A determination based on nights in care would, so it is said, fail to recognise his care of the Children for most of each Sunday; “I have care of all four children for 20-21 hours of Sunday... I miss out on having them overnight and therefore miss out on a near full day of care being recorded with Child Support.” [50]
[49] T31, p.164. Note also, at T31, p.166, reference to “increased financial burden”.
[50] T31, p.167.
I accept the gist of that submission. In the circumstances, I find that a determination based on hours in care would more accurately reflect the actual care of the Children which the father had in the identified care period (despite the mother’s submission to the effect that adoption of an hours in care basis was tedious and inconsistent with the parents’ “general understanding” of their arrangements[51]).
[51] See undated post-hearing submission of the mother lodged with the Tribunal on 26 October 2022.
Returning now to the contending submissions considering hours in care, I find that a percentage of care of each Child of less than 35% corresponds with the level of the father’s actual care of each Child in the identified care period. This finding reflects, and is consistent with, the mother’s submissions concerning the extent to which each Child was in her and the father’s care.
In support of their respective submissions, each of the father and the mother provided diaries purporting to identify the times when the Children were in care with each parent over a prolonged period.[52]
[52] T23, p.145 (father’s care diary in relation to the 4 January 2021 to 31 May 2021 period); T28, pp.153-154 (mother’s care diary in relation to the 1 April 2021 to 11 July 2021 period).
Those diaries do not provide precise support for either the mother’s or the father’s submissions.[53] As contended by the father and as indicated earlier, however, I accept that a “broad brush” approach should be adopted in identifying the relevant pattern of care and in seeking to assess the extent to which a child is in the care of a parent.
[53] As noted in the objection disallowance decision in August 2021 at T41, pp.211-212.
Moreover, as identified in the 27 August 2021 decision (and in the AAT1 decision[54]), the diaries provided by the mother and the father are inconsistent.
[54] T2, p.15 [22].
Despite this inconsistency, however, it is nevertheless clear[55] that, in terms of assessing hours in care, the essential area of dispute between the mother and father lies in the care transition arrangements with respect to Fridays.
[55] As identified by the SSCSD in the AAT1 decision: T2, p.14.
The father submits that the Children transitioned into his care on Fridays at 9am, when C1 and C2 commenced their school day. I reject that submission.
As for C1 and C2, I find that care transitioned to the father at 3.30pm on Fridays, when they were to be picked up from school by the father.
As the SSCSD recognised in the AAT1 decision, it would be open to the Tribunal to consider that a Child is not in the care of either parent when attending school.[56] In this regard, the allocation of care of a child to a parent while that child is in school has been said to be artificial,[57] the more so when an hours in care basis is adopted to determine the extent to which the child is in a person’s care.[58]
[56] T2, p.14 [16].
[57] Gillson and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473 at [15].
[58] KMDB and Child Support Registrar (Child support second review) [2019] AATA 5536 at [21], where it is said that “if the “hours in care” basis is adopted, it would be artificial to credit to either one parent or the other with the hours that were spent by the child in school.”
In this matter, I do not consider it to be inappropriate to determine that C1 and C2 were in the care of the mother while they attended school. The concept of “care” is multi-faceted. At any particular time, it does not require that a person then have immediate responsibility for the child’s welfare. Nor does it mandate geographical proximity. Factors that might be considered include[59] the extent to which:
(a)the responsible person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities.
(b)the responsible person makes arrangements for others to meet the needs of the child.
(c)the responsible person pays for the costs of meeting the needs of the child.
(d)the responsible person otherwise provides financial support for the child.
(e)the child provides for his or her own needs or has those needs met from another source.
(f)the child is financially independent or financially supported from another source.[60]
[59] The list is not exhaustive: P v Child Support Registrar [2013] FCA 1312 at [107].
[60] Polec & Staker & Anor [2011] FMCfam 959 at [56].
Moreover, as I see it, treating a child while at school as then being in the care of a particular person is rendered no more artificial by using an hours in care basis to determine the person’s care percentage, as opposed to a nights in care basis. The latter basis, arguably artificially, treats a child in the overnight care of a person as being in the care of a person throughout the relevant day. This is so even if, for instance, the child is at school during that day.[61]
[61] Vendrell and Secretary, Dept of Social Services [2014] AATA 22 at [15] where it is noted that determinations based on nights in care mean that a “...person with the overnight care of a child is regarded as having had care of the child for that day.” See also Harpley and Secretary, Department of Social Services (Social services second
review) [2020] AATA 2052 at [72].
In support of the father’s submission, it is said that C1 and C2 transitioning into his care at the time of commencement of the school day on a Friday is consistent with and reflective of him then having the greater financial burden or responsibility for the Children on Fridays. That submission found favour in the AAT1 decision. There, the SSCSD concluded that the father had the care of the Children from 9am on a Friday because he “…incurs the expense (both financially and in terms of time) of transporting the children in both directions in order to have them in his care at his home and incurs the expense of the evening meal…[so that] the lion share of the costs for caring for the children fall to …[the father] from the commencement of the school day on Friday, and incorporate all of the waking hours of Sunday.”[62]
[62] T2, p.15 [23]-[24].
Unlike the SSCSD, however, I am not satisfied that the father did have responsibility for the “lion share” of the costs of caring for the Children from 9am on Fridays. He did bear the cost of transporting the Children after school to his residence and the cost of providing an evening meal on Fridays. According to the uncontested evidence of the mother, however, she paid the Children’s school fees (which would encompass fees for attending school on a Friday), paid for their Friday snack and lunch and paid for the clothing they wore on Fridays (their school uniforms).[63]
[63] A SFIC.
In any event, while responsibility for a child’s daily costs may be of relevance to an attribution of care and to a decision to apply an hours in care basis to determine a person’s actual care of a child,[64] it is not determinative. As stated earlier, regard might be had to a broad range of factors in determining the extent to which a person has the care of a child. The multi-faceted nature of the concept of “care” is reflected in the Guide. There it suggests that consideration “…is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves.”[65]
[64] Harpley and Secretary, Dept of Social Services (Social Services Second Review) [2020] AATA 2052 at [78] where it is noted that “…financial responsibility might favour an assessment of the hours in care rather than nights in care.”
[65] Guide 2.2.1. See too KMDB and Child Support Registrar (Child support second review) [2019] AATA 5536 at [15].
As between the mother and the father, I find that primary responsibility for making arrangements and decisions for C1 and C2 while at school on a Friday lay with the mother.
The mother contended that, as she lived closer to the school, it was more likely that she would be contacted by the school should an issue arise that required parental attendance.[66] Set against this, however, I note the father’s contention (outlined in an email sent to the Tribunal after the hearing) that, on Fridays, he, rather than the mother, would have been the one available to address issues raised by the school given that, while both he and the mother would be in the CBD, the mother would then have been working.
[66] In A SFIC, the mother stated that “…since I live closer to the school, if anything were to happen at school, I would be first on call.”
The father may well have believed that he would be the parent contacted should an issue arise with C1 or C2 while at school on a Friday[67] and that (relative to the mother) he was more available to address any such issue. Nevertheless, as between the father and the mother, I find that the school considered the mother to be the person with responsibility for making arrangements for, and decisions about, each Child's welfare while the Child was at school. In this regard, I refer to a letter of 19 October 2021 from the school principal stating that the mother was the primary point of contact for C1 and C2.
[67] T9, pp.90-91: when the father initially sought a new change in care determination in February 2021, he pointed out that in calculating his care percentage based on hours in care, he had taken the position that once C1 and C2 were in school on a Friday they were in his care. He was then asked whether “…this would mean the school would contact …[him] if there are any issues (eg injured child) and he advised he believes that is the arrangement.”. See also T14, p.119.
It is not in dispute that on each weekday other than Friday in the identified care period, each of C1 and C2 were in the care of the mother when at school. It is difficult to understand why the person responsible for the care of the Children in the hours spent in school on a Friday should be considered to differ from the person considered to be responsible for their care in the hours spent at school on each other weekday.
When initially notifying the respondent of what he considered to be a change in the pattern of care of the Children as from 29 January 2021, the father suggested that the mother had agreed that C1 and C2 were in his care as from the time they started in school on a Friday (ie, from 9am). She is said by the father to have stated that “once at school they’re your problem”.[68] Even if I were to accept that the mother had said this,[69] it is irrelevant. Absent a consent arrangement, [70] the extent of a parent’s care of a child is not determined by what a parent might accept to be the case but, rather, by what is in fact the case in relation to the relevant Child (albeit allowing the “broad brush” approach to the assessment of that fact).
[68] T9, p.90.
[69] In A SFIC, the mother stated that she never accepted that the father’s care of C1 and C2 began as soon as he had the care of C3 and C4.
[70] CSAA, Part 6.
As for C3 and C4, as indicated earlier, the father submitted that their care transitioned on Fridays at 9am.[71]
[71] T9, p.91; T25, p.148.
I reject that submission. Instead, I find that, as submitted by the mother,[72] the care of C3 and C4 transitioned at 11am on Fridays.
[72] A SFIC; T28, p.155.
The father contended that when C1 and C2 transitioned into his care, so too did C3 and C4. He referred to a text message sent by the mother on 28 January 2021 to the effect that if the Children were in his care for a day he would be responsible for school pick up and drop off.[73] Implicit in this, said the father, was that he had the care for all Children if he had the care of one Child, with that care commencing when he commenced to care for any Child. This reflects his view that the care for all Children should be taken to be the same.[74]
[73] T12, 112.
[74] T9, p.91.
I do not accept that the 28 January 2021 text message carries the implication alleged by the father. Nor do I accept that the hours in which each Child was in his care should be considered to be the same for all the Children.
As indicated earlier, in determining the father’s percentage of care, the Tribunal is seeking to assess the extent to which he had actual care of each Child. As to this, I note that the father appeared to recognise that the care of C3 and C4 did not transition to him on a Friday, in fact, until “mid-morning”.[75] That recognition is consistent with the mother’s statement in an undated letter to the effect that she had been employed in the city on Fridays as from 11.30am and, hence, would drop C3 and C4 at the father’s mother’s residence in the CBD at around 11am.
[75] In June 2021, the father stated (with my emphasis) that “the evidence shows that I regularly have the children from mid-morning on a Friday…”: T31, p.164.
In support of his submissions concerning all the Children’s care transition arrangements on Fridays, the father referred to the orders made by consent in the Federal Circuit and Family Court of Australia on 4 October 2021.[76] Pursuant to the orders the Children were to spend time with the father in each “…week from 10.00/11.00am Friday until 9.00pm Sunday.” These, the father said, formalised the then existing pattern of care.
[76] T43, pp.214-221.
I accept that the SSCSD in the AAT1 decision characterised the Court’s orders as having formalised “in general terms” the parties then existing arrangements.[77] I do not accept, however, that the Court’s orders lend support to the father’s submissions concerning the care transition arrangements in place from 29 January 2021. First, according to the SSCSD, it was only “in general terms” that the orders formalised those arrangements. Second, the father’s submissions are not entirely consistent with the orders, noting, for instance, that the father’s time of commencement of care on a Friday under the orders (“10.00/11.00am”) does not accord with his submitted commencement of care time of 9am. Third, absent a consent arrangement,[78] the extent of a parent’s care of a child is not determined by what a parent might accept to be the case (such as in Court orders made by consent) but, rather, by what is in fact the case. Fourth, I note the mother’s evidence to the effect that the Court’s orders were not intended to formalise existing arrangements.
[77] T2, p.13.
[78] CSAA, Part 6.
Decision
The decision under review in this proceeding is set aside.
In substitution for that decision, the Tribunal affirms the objection disallowance decision.
This means that the care percentage determinations in place prior to 29 January 2021 in relation to the father and mother remain in place until revoked consequent on their replacement by new determinations made as a result of Court orders of 4 October 2021.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell
...............................[SGD].........................................
Associate
Dated: 24 January 2023
Date of hearing: 21 October 2022 Date final submissions received: 26 October 2022 Applicant: Self-represented Advocate for the Respondent: Katherine Whittemore Solicitors for the Respondent: Sparke Helmore Lawyers Other Party: Self-represented
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