YKPT and Child Support Registrar (Child support second review)

YKPT and Child Support Registrar (Child support second review) [2024] AATA 3027 (27 August 2024)
Division:GENERAL DIVISION
File Number(s): 2023/7455
Re:YKPT
APPLICANT

AndChild Support Registrar
RESPONDENT

AndCHWG
OTHER PARTY

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:27 August 2024
Place:Adelaide

The Tribunal varies the Level 1 decision of the Tribunal by substituting 86% for 85%, and 14% for 15%, in the decision record dated 26 September 2023. The Level 1 Tribunal decision now reads:
‘The decision under review is varied and a percentage of care of 86% to [YKPT] and 14% to [CHWG] applies from 1 September 2022.’

...........................[sgnd].............................................
Senior Member Dr N A Manetta

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 (Cth).
CATCHWORDS
CHILD SUPPORT – percentage of care – one parent asserts increase in percentage of care – parent also asserts care provided by ex-partner’s parents should be counted towards her care – submissions rejected on facts – Level 1 decision under review varied in minor way to reflect correct approach and findings
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
REASONS FOR DECISION
Senior Member Dr N A Manetta
27 August 2024

This is an application by YKPT, the mother of a child to whom I shall refer as ‘L’, seeking a review of a Level 1 decision of this Tribunal dated 26 September 2023. I shall refer to YKPT as ‘L’s mother’ in these reasons. The Level 1 Tribunal decision concerns the amount of child support L’s mother was eligible to receive in respect of L during a defined period. Child support payments are regulated under the Child Support (Assessment) Act 1989 (Cth)(‘the Act’), amongst other legislation.
By its decision, the Level 1 Tribunal decided that, for the purposes of the Act, L’s mother had 85% care of L and that CHWG, to whom I shall refer as ‘L’s father’, had 15% care of L, from 1 September 2022 onwards. Given another determination by the Respondent that had effect from 22 November 2022, the operation of the Level 1 Tribunal’s decision was confined, effectively, to the period starting on 1 September 2022 and ending on 21 November 2022.
The Level 1 Tribunal’s decision implied that L’s father’s so-called ‘cost percentage’ was 24% from 1 September 2022. Correspondingly, the ‘cost percentage’ for L’s mother was 76%. These percentages follow from the bands appearing in section 55C of the Act.[1] Cost percentages influence the calculation of child support amounts.
[1] Appearing at Ex R1, 29.
L’s mother has submitted that the care provided by L’s father/paternal grandparents was less than 14% for the period from 1 September 2022 to 21 November 2022 and that hers was greater than 86%. If this is the correct care period, and if L’s mother’s contention is correct, her cost percentage will increase to 100% under section 55C. I was informed that this conclusion would imply an obligation for L’s father to pay L's mother an additional amount of approximately $700.
The Respondent to these proceedings is the Child Support Registrar, for whom Ms Whittemore appeared. L’s father was joined to these proceedings and is the Other Party.
PROCEDURAL MATTERS
L’s mother represented herself at the hearing before me. L’s father informed the Tribunal that he could not participate as he was attending hospital with his child that morning. He also advised that he wished the hearing to go ahead in his absence. I decided to proceed with the hearing and not to have the matter called on again unless his evidence was required. I have been able to decide L’s mother’s care percentage without his evidence.
I also note that some two years ago, I delivered a decision in a taxation appeal where L’s father was the Applicant. I drew this to L’s mother’s attention at the hearing, and she did not object to my continuing to hear the matter. She was already aware of the decision, she said, and felt it was irrelevant. Having reviewed the matter for myself, I do not believe that I should recuse myself as a consequence of my involvement in that taxation appeal.
BACKGROUND FACTS
The background facts may be summarised as follows. I base myself largely on L’s mother’s evidence and on the decision record at objection stage.[2] L’s mother and L’s father first met in 2018. They commenced a relationship. L was born to them in October 2019. Six months after L’s birth, the relationship ended and the couple separated. L’s father moved out of the family home and lived with his parents.
[2] Ibid, 66ff.
L’s mother said in her evidence to me that after the separation, L’s father (or L’s paternal grandparents) would look after L two nights per week or three to four nights per fortnight, on average. The days of care were not fixed according to any formal arrangement, but L’s mother confirmed in her evidence that, generally speaking, L would spend Sunday nights at L’s paternal grandparents’ home, where, as I have said, L’s father also resided after he and L’s mother separated. Any other days of care would depend on L’s father’s work roster.
Under a private arrangement, L’s father used to pay $100 per week to L’s mother in respect of L’s maintenance. In due course, an application for child support was lodged by L’s mother, who believed that sum had become inadequate.
The decision reached by the responsible officer on that application was that L was being cared for by L’s mother 86% of the time and 14% of the time by L’s grandparents,[3] from 24 July 2022. This equates, on average, to six days out of seven for L’s mother and one day out of seven for the grandparents. A 0% care percentage was allocated to L’s father. This assessment is recorded as being effective from 2 September 2022.[4]
[3] It is not clear whether this is a reference to the maternal grandparents or the paternal grandparents.
[4] Ex R1, 69.
I note that the assessment is consistent with what L's mother is recorded as having told the respondent; namely, that ‘[p]rior to [L’s father] departing for the work trip,[5] the paternal grandparents were providing care of [L] on Sunday nights’.[6] This record is also consistent with L’s mother’s oral evidence to me.
[5] L’s father left for a training course on 2 September 2022.
[6] Ex R1, 69.
On 14 September 2022, L’s mother advised the Department that L’s father was away for three months on a work training course, and that she would have 100% care of L during this time.[7] L’s mother was, therefore, seeking a change in the percentage of care decisions that were in force. She asked that she be recognised as providing 100% care from 1 September 2022. This increase would affect her cost percentage and take it from 76% to 100% under section 55C of the Act.
[7] Ibid. L’s father had, in fact, left for his course on 2 September 2022.
On 6 December 2022, a decision was reached that L’s mother had 100% care of L with effect from 4 September 2022, this latter date being a Sunday. This date was chosen because L would normally have gone to her paternal grandparents’ home in the evening on that day and been looked after there.[8]
[8] Ibid.
L’s father objected to this decision. The decision that was reached on the objection was that L’s mother had 85% care, and L’s father had 15% care, from 4 September 2022. The grandparents were not given a care percentage. The reasoning was as follows. In the period from Sunday, 4 September 2022 to Monday, 21 November 2022 (79 days), L’s father or L’s grandparents provided twelve days of care. This equated to 15% care (rounded down to the nearest whole number). Any care provided by the paternal grandparents was found to be care ‘delegated’ by L’s father and counted towards L’s father’s care.[9] L’s mother was found to have 85% care. The period of twelve days included one disputed Sunday (namely, 2 October 2022), to which I shall refer in due course.
[9] Ibid, 72.
L’s mother appealed this decision to this Tribunal (Level 1). The Level 1 Tribunal reasoned as follows.[10] It decided that from 1 September 2022 to 31 December 2022, L’s father or L’s grandparents cared for L for 19 days out of a total of 122 days, which equalled 15% (after rounding). Care given by L’s paternal grandparents was counted as L’s father’s care and so the percentages were: 15% care to L’s father and 85% care to L’s mother commencing on 1 September 2022, not 4 September 2022. Again, it was found that L’s father had ‘delegated some of his care’ to the grandparents.[11]
[10] Ibid, 7ff.
[11] Ibid, 13 [34].
I note that Ms Whittemore submitted that the Level 1 Tribunal ought not to have had regard to the period from 22 November to 31 December 2022 because on 22 November 2022, a new decision was reached that allocated 19% care to L’s father and 81% to L’s mother. I agree with that submission.
L’S MOTHER’S SUBMISSIONS
One submission L’s mother’s had made to me is that during the period from 1 September 2022 to 21 November 2022, L’s father was away on training. She submits that he returned home from training and cared for L on four nights only, and L’s paternal grandparents cared for L on an additional seven nights. This makes a total of eleven nights out of a total period of 82 nights in this timeframe. This equates to 13.41%, which should be rounded down to 13% in accordance with the Act,[12] even if the nights L spent with her paternal grandparents count towards L’s father’s care of L (which she did not accept). This translates to a cost percentage of nil under section 55C, because the regular care threshold of 14% had not been reached. L’s mother’s cost percentage is, accordingly, 100%.
[12] See section 54D.
L’s mother second submission was that when L was with her paternal grandparents in L’s father’s absence, those nights should count towards her care. On this basis as well, L’s mother’s care percentage would be higher than 86% and lead to a higher cost percentage under section 55C because only four nights out of 82 nights (or 4%) were spent by L with her father. This would make L’s mother’s care percentage 96%.
I note that L’s father, in a short submission by email, asserts that L spent twelve nights during the period from 1 September to 21 November 2022 at L’s paternal grandparents’ home, not eleven.[13] I have proceeded on the basis that L’s mother is correct, and that the true number of care nights is eleven, not twelve.
[13] Ex OP1.
REASONS
The appropriate way to approach this matter, in my opinion, is to begin with the initial care percentage assessments that had been made within the Department and that were applicable from 24 July 2022. The Act contains provisions that govern when and how such assessments may be altered.[14] These provisions determine whether any alteration should have been made to L’s mother’s care percentage of 86%, and if so, the date from which the alteration should be taken to have effect.
[14] The relevant provisions are included in Ex R1 at 16ff, and I shall not set them out.
In applying these provisions, I have proceeded on the basis allowed for in the Act; namely, that care may be calculated by reference to where L slept on a particular night.[15]
[15] Section 54A(1).
It is appropriate to proceed as follows. First, I shall apply the statutory provisions on an assumption that nights spent with the grandparents do not count towards L’s mother’s care, and, to keep the analysis straightforward, I shall not differentiate as such between L’s father’s nights of care and L’s paternal grandparents’ nights of care.
I shall then examine the question of whether L’s mother always remained L’s carer on the nights when L’s father was away.[16] Finally, I shall examine the question of whether care provided by L’s grandparents should be attributed to L’s father.[17]
L’s mother’s care percentage on the assumption she did not have care of L when L was with the grandparents
[16] See at [49]ff below.
[17] See at [58]ff below.
As of 1 September 2022, L’s mother’s care percentage had been determined to be 86%, and the grandparents’, 14%. On the evidence before me, and not disputed by L’s mother,[18] Sunday night care was afforded in L’s paternal grandparents’ home through September and October as follows. On Sunday 4 September, 2022, on Sunday 11 September 2022, on Sunday 18 September 2022, and on Sunday 25 September 2022, L spent the night at L’s paternal grandparents’ home. L was next received at the grandparents’ home on Friday, 30 September 2022 and stayed there that night. This amounts to five nights of care in September, or 16.67% care during that month (16% when rounded down), which implies that L’s mother’s care was 84% during the month, and in any event not more than 86%. Every Sunday night in September was spent by L at her paternal grandparents’ home.
[18] Document forming part of Ex A1.
When I come to October 2022, I find that on Saturday, 1 October 2022, L was still at L’s grandparents’ home having stayed there on the evening of Friday, September 30th. She was not there on Sunday, 2 October, however. L’s mother explained that she had requested that L return on Sunday, 2 October to join in the preparations being made for her third birthday, to be celebrated on Monday, 3 October. That course was strongly opposed by L’s father, who was to come back from his interstate course on that weekend to see L; but the evidence before me, in the form of solicitors’ correspondence,[19] suggests that he agreed to return L to L’s mother’s premises on the Sunday at 5.00 pm. So I regard the absence of L from L’s paternal grandparents’ premises on that Sunday evening as having a special reason.
[19] Document forming part of Ex A1 and Ex R1, 155ff.
I note that I do not judge whether either of L’s parents was being unreasonable in maintaining their position in respect of this Sunday. That is not relevant to my decision. I simply note that L’s father would normally have expected to be with L on that Sunday night, and it was clearly with some reluctance that he agreed to forgo the night.
It appears from the evidence that the following Sunday in October (the 9^th) was not spent by L at her paternal grandparents’ premises. However, the next Sunday (the 16^th), was. The following Sunday (the 23^rd), was not, but the two preceding days (the 21^st and 22^nd) had been. The following Sunday (the 30^th), was spent by L at the paternal grandparents’ premises. There were five nights of care in October in total, which amounts to 16.13% care for the month (16% when rounded down), which implies a care percentage of 84% for L’s mother in this month.
When I look at these two months together, there were ten nights out of a total of 61 where L was cared for in L’s paternal grandparents’ home, and this amounts to 16% care. L’s mother’s care percentage is, accordingly, 84%, and as at 31 October 2022, it had not exceeded 86% during the period commencing on 1 September 2022. So far as the care pattern across these two months is concerned, the pattern of one evening per week’s care on a Sunday at the grandparents’ home was basically preserved (although it might fairly be said that a Saturday counted for a Sunday on two occasions in October). The clear exception was Sunday, 9 October, which was skipped altogether. Even so, L’s mother’s care percentage had not increased above 86%.
So far as the next month is concerned, L did not spend Sunday, 6 November 2022 at her paternal grandparents’ home, but she did spend Sunday, 13 November there. She did not spend Sunday, 20 November there, however. There was only one Sunday, therefore, in the first three Sundays of November when L was cared for at her paternal grandparents’, instead of the expected three. On 22 November 2022, a new determination came into effect.[20]
[20] Ex R1, 348.
In my view, as I have said, the pattern of care of one Sunday each week did not alter in September or October in L’s mother’s favour, although some Saturdays counted for the Sunday in October. In retrospect, one can discern the beginning of a change in the first three weeks of November. Had the apparent change continued, the pattern of care would have altered in favour of L’s mother; but, as I have said, the care percentages for L’s mother and father eventually[21] became 81% and 19% respectively with effect from 22 November. This implies a different pattern with L’s mother having somewhat less care, not more.
Application of the Act to determine whether care percentages may be altered on the assumption L’s mother did not have care of L when L was with the grandparents
[21] Ibid. They were initially determined to be 86% and 14% but were altered on objection to be 81% and 19%.
Before acceding to L’s mother’s application, the Respondent had to determine that a section in the Act warranted increasing her care percentage from 86%. Exercising no wider powers than the Respondent has, I must apply the Act as well.
I now turn to apply the relevant statutory provisions. The relevant sections are 54F, 54G and 54H and, as they appear in Ex R1 for the benefit of the parties,[22] I shall not set them out in these reasons. Each section specifies when it is to apply, and one of these sections must be found to apply in this case if any change is to be made to increase L’s mother’s care percentage.
[22] Ex R1, 16ff.
Application of section 54G
Sections 54F and 54H do not apply if section 54G applies,[23] and so I turn first to consider this latter section. Section 54G applies only when a person’s pattern of care becomes less than regular care: see subsection (1)(b). ‘Less than regular care’ is defined to mean less than 14%.[24]
[23] See sections 54F(1)(c) and 54H(1)(c).
[24] See section 5(2).
The initial care determinations were 86% to L’s mother and 14% to the grandparents with no care percentage attributed to the father; and, as I have said, it would appear that care given in the grandparents’ home to L was treated at the time of assessment as the grandparents’ care whether or not L’s father was there. In asking myself whether section 54G authorises a change to the initial care percentages, I believe I should proceed on this same basis; namely, that all care given in the grandparents’ home counts as their care. Section 54G(1)(b) provides that section 54G will only apply, if the grandparents had no care of L (which is not the case), or had a pattern of care that was less than regular care of L, despite L’s mother making L available to them.
Critically, L’s mother did not make L available to L’s grandparents on Sunday, 2 October 2022. She had her reasons for that approach,[25] and they were undoubtedly fair reasons in her mind; but it was a Sunday, and according to the informal understanding operating at that time, L was to spend that Sunday evening with the grandparents; and L’s father apparently insisted on access as he was back in Adelaide from his training course. The matter ended up being the subject of solicitors’ correspondence as I have said.[26] Had L’s father (and the grandparents) had access to L on that Sunday evening, the grandparents’ percentage of care would not have fallen below 14% over the period from 1 September to 21 November 2022: they would have had twelve, not eleven, days of care out of 82.
[25] See [26] above.
[26] Part of Ex A1 and Ex R1, 155ff.
In my view, the precondition for the application of section 54G specified in subsection (1)(b) is not fulfilled, and so the section does not apply to warrant any alteration in the initial care percentage determinations. But even if section 54G did apply, it specifies a revocation date of ‘the end of the day before the day on which the person ceased the previously established pattern of care’: see section 54G(2)(b). The earliest this could be is the end of Saturday, 19 November 2022 for the reasons I give below.[27] Revoking the care percentages on 19 November, and imposing new care percentages for the 20^th and 21^st only, would be a trivial exercise.[28]
[27] At [38]ff.
[28] New care percentages came into effect on 22 November 2022.
Application of sections 54F and 54H

The other potentially relevant sections (sections 54F and 54H) do not apply in my opinion, at least not from 1 September. Both these sections apply when, but only when, the Respondent[29] ‘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’.[30] In this case, the ‘responsible person’ is L’s mother.
[29] Or the Secretary of the Department.
[30] See section 54F(1)(a) and section 54H(1)(a) (emphasis added).
This test requires me to consider the care actually being given to L throughout the period from 1 September to 21 November 2022 and to determine at what point, if any, the care L’s mother was actually giving L exceeded her care percentage of 86% and no longer ‘corresponded with’ it. It is only at that point that the power to revoke the existing care percentages, and increase L’s mother’s care percentage, arises. When a new care percentage is set, it will take effect from the date the care changed, not earlier.
As I have pointed out, the actual care that L’s mother was giving L throughout September and October did not exceed L’s mother’s care percentage of 86%: in fact, she had slightly less care. Subject to L’s mother’s contention[31] that she had care of L even when L was with her paternal grandparents, neither section 54F nor section 54H applied during these two months to warrant increasing L's mother’s care percentage.
[31] See below at [49]ff.
Sunday, 6 November and Sunday, 20 November were missed by L’s paternal grandparents; Sunday, 13 November was not missed. Even with that change, as at Sunday, 13 November, L’s mother’s care percentage was still 86%.[32]
[32] She had 63 nights out of 74 at this point, which is 86% after rounding up.
If one asks on what date care actually being provided by L’s mother to L increased above 86%, that point is reached only on Sunday, 20 November 2022 because that was a Sunday evening when L did not sleep at her grandparents’ home. On that day, L’s mother’s care percentage became 87%. On this date, but not earlier,[33] it might be said that ‘the care of L actually taking place’ no longer ‘corresponds with’ L’s mother’s percentage of 86%.
[33] If the grandparents had provided care to L on 20 November, L’s mother’s care percentage would have remained 86%.
Whether that is the case, however, depends on the meaning of the expression corresponds with. The expression corresponds with can mean in some contexts ‘be exactly the same as’; but it can also be said in some contexts that one thing corresponds with another when there is substantial equivalence between them although not strict identity. In this latter sense, L’s mother’s pattern of care would not have ceased to ‘correspond with’ her care percentage of 86% simply because when care was evaluated as at one day, it was found to have increased by one percentage point. I do not need to decide that matter, however, and I shall assume in L’s mother’s favour that her pattern of care no longer corresponded with her care percentage on 20 November 2022.
An 87% care percentage does entail an increased cost percentage under section 55C; but a new assessment came into effect on 22 November 2022. Although, technically, section 54F or 54G might have authorised new care percentage determinations as of Sunday, 20 November 2022, it would be trivial to make those changes because they would only operate until 22 November 2022, when the new determinations took effect.
Appropriate care period
There is one other important consideration. This concerns L’s mother’s submission, apparently agreed in by L’s father, that the relevant care period began on 1 September 2022. I do not agree with this joint submission.
The first care period, as determined following L’s mother’s application to the Respondent, is recorded as having begun on 24 July 2022 on the record before me,[34] and the evidence from L’s mother is that L’s father or L’s grandparents looked after L before 1 September 2022 three to four times a fortnight on average. Two days a fortnight would have been enough to keep the percentage of care at just over 14%. Three or four days per fortnight would have resulted, in fact, in extra days of care that would offset any shortfall later in the care period.
[34] Ex R1, 69.
I did not receive evidence on this point; but if one added up all the days of care provided by L’s father or L’s paternal grandparents from 24 July 2022 to 21 November 2022, I doubt that L’s mother’s care would be found to have exceeded 86% over this extended period. If L’s father or grandparents had provided care to L each Sunday in the period from 24 July to 31 August, the arithmetic indicates that L’s mother’s care percentage would not increase above 86%. This would imply a total of six nights’ care which, when added to the eleven nights from 1 September to 21 November, would amount to 17 nights of care in the total period from 24 July to 21 November. This equals 14%, with L’s mother having the remaining 86%.[35] Any additional care nights between 24 July and 31 August could only diminish L’s mother’s care, as I have said. As I have noted, the evidence from L’s mother suggests care was being given on average three to four times a fortnight by L’s paternal grandparents. This makes it more likely that her care was not more than 86% during the period from 24 July 2022 to 21 November 2022.
Conclusion on the application of sections 54F, 54G and 54H on the assumption L’s mother did not have care of L when L was with the grandparents
[35] Seventeen days out of 121 days in the period from 24 July to 21 November equals 14.04%.
All in all, I am not satisfied that any of the relevant sections applies so as to warrant an increase to L’s mother’s care percentage with effect from 1 September 2022 as maintained by L’s mother.
L's mother’s further submission
L’s mother also submitted that she was always L’s carer when L’s father was away because she had to be the emergency contact if L needed anything; she had also to prepare L’s things for the overnight stays at the grandparents’; and she had to pay for L’s swimming lessons. If she is correct in this submission, her care percentage will clearly increase above 86%. If she was the carer for L when L was with the grandparents and L’s father was away, L’s mother would be found to be L’s carer for another seven nights of the eleven nights in question.[36]
[36] L’s father came back from his course and looked after L on four nights. On any view of the matter, those nights should be counted towards his care of L.
L’s mother gave evidence that she had been regularly paying for L’s swimming lessons up to 1 September 2022 and so there was no change of practice in that regard. (I understand an agreement may since been reached about sharing the cost of the swimming lessons.) I do not think the fact that L’s mother continued to pay for L’s swimming lessons as she had been doing is a relevant consideration. That L’s mother packed L’s things and prepared her for a visit with the paternal grandparents does not affect the proper conclusion either in my view.
So far as L’s mother remaining an emergency contact is concerned, I do not accept that she would have been the only contact. The common sense of the situation suggests that L’s paternal grandparents would have exercised proper judgment about whom they ought to contact in relation to L’s needs. That could include, of course, L’s mother, but I would not agree that it would only be L's mother. It could have been L’s father as well depending on the need;[37] and the grandparents might be expected to use common sense and handle the situation themselves. Indeed, if the situation had been of great urgency, they would have had no choice but to make decisions themselves. L’s mother gave evidence that no emergency arose and she was not called upon. Moreover, all parents remain emergency contacts for their children when they sleep over at another person’s house.
[37] For example, if L were missing her father and wanted to speak with him over the phone.
In my opinion, the question of care is properly addressed by ascertaining who was looking after L at night. The critical point in my view is that L slept over at the grandparents’ home and L’s mother was not looking after her on those nights. I also note that I am prevented from finding that L was in the care of both the grandparents and L’s mother on the same night: see section 54A(3).
In these circumstances, I do not think that L’s mother provided care to L on any of the nights when L slept at her paternal grandparents’ home.
The papers before me suggest a further submission; namely, that L’s mother had ‘delegated’ her parental authority to L’s paternal grandparents and so that time spent with L’s paternal grandparents should count as L’s mother’s care. I do not accept that view of the matter.
L’s mother gave evidence that when L’s father had first informed her that he was going on an interstate training course, she was very resistant to the idea of L’s paternal grandparents having L with them in his absence. This led to an argument with L’s father, she said, and she said she reluctantly agreed to continue what had been the practice until then (namely, that L would spend time at L’s grandparents’).
When L’s father was also present at the grandparents’ home, no question of delegation could arise: L simply spent the evening with her father and her paternal grandparents at the grandparents’ home. When L’s father was not there, the legal position was that L’s mother and father had each given their permission that L should attend L’s paternal grandparents’ home and be looked after by them. It is not correct, in my view, to regard this situation simply as a delegation by L’s mother of her sole parental authority. In looking after L, their grandchild, the paternal grandparents needed in law, and had, the permission of both L’s parents.[38]
[38] In the absence of Court orders regulating the matter.
All in all, therefore, I do not accept L’s mother’s submission that she had care of L when L was with her paternal grandparents.
Should L’s paternal grandparents’ care nights be attributed to L’s father?
The remaining question is whether the paternal grandparents’ care of L when L’s father was away should be counted towards his care percentage. The initial assessment proceeded on the basis that L’s grandparents should be regarded as always providing the care when L stayed at their home: this explains why a care percentage of 14% was allocated to them and no care percentage was allocated to L’s father.
The conclusion reached both at objection stage and by the Level 1 Tribunal was that the care provided in the grandparents’ home should be counted as L’s father’s care. No care percentage was allocated to the grandparents. As a matter of jurisdiction, both the officer who decided the matter at objection stage and the Level 1 Tribunal had authority to alter either care percentage determination. They had jurisdiction, therefore, to find that the care being provided by the grandparents should be treated as L’s father’s care and to alter the initial assessment accordingly. The question in my review is whether that is the preferable approach.
My understanding of the facts is that L’s father resided with L’s paternal grandparents in their home at the relevant time; that is, this home was L’s father’s residence as well. When L was at the paternal grandparents’ premises, L’s father was sometimes present and sometimes not.
I have said that care of L was entrusted by both parents to L’s grandparents when L’s father was not there. Whilst that is true, it remains a fact that when L’s father was absent, L was nevertheless being looked after at the premises where L’s father ordinarily resided. The evidence before me suggests that L’s father returned from the interstate training course to see his daughter and that he saw his daughter on four nights during this time.
This is not a case where, for example, L was thrust upon her paternal grandparents by a neglectful father who was uninterested in his child. Rather, L was cared for by the paternal grandparents in the home where L’s father and L’s paternal grandparents all resided, with L’s father joining them from interstate from time to time. Furthermore, L’s presence in her paternal grandparents’ home on a Sunday evening was a continuation of a Sunday-night pattern that predated L’s father’s absence interstate.
In my opinion, it is preferable to count the care given to L by L’s paternal grandparents when L’s father was away on his training course towards L’s father’s care.[39]
[39] Although I do not believe this should be analysed as a case of delegation.
I would also note that before I proceeded to reduce L’s father’s percentage in other than a trivial way, I believe I should call the matter back on to hear from him.[40] But the Tribunal is also under a duty to pursue an objective of ensuring a mechanism of review that is ‘fair’, ‘economical’ and ‘quick’ and ‘proportionate to the importance of the matter’: see section 2A of the Administrative Appeals Tribunal At 1975. L’s mother’s application for review before me mainly concerned her care percentage, and I have reached my conclusion that her care percentage should remain 86%. It is very much a subsidiary issue whether the remaining 14% should be attributed to L’s father, L’s paternal grandparents, or split between them. I do not think in any event that I should have brought the matter back on to investigate whether the Level 1 Tribunal’s decision should be departed from in respect of this subsidiary issue.
[40] See [6] above.
OVERALL CONCLUSIONS AND FORMAL DECISION
My overall conclusion, therefore, is that the original assessment of the departmental officer giving L’s mother a care percentage of 86% should not have been changed as the statutory preconditions for changing it were not satisfied and because changing it would be a trivial exercise in any event if they were satisfied.
I have also concluded that it is preferable to count the care given to L by L’s paternal grandparents towards L’s father’s care for her. In this latter respect, I have decided that the conclusion of the Level 1 Tribunal in this regard should not be disturbed in any event.
I am formally tasked with reviewing the Level 1 decision of this Tribunal dated 26 September 2023. Given my conclusions, I shall proceed to vary the Tribunal’s Level 1 decision by substituting 86% for 85%, and 14% for 15%, in the decision record.[41] The Level 1 Tribunal
decision will now read:
‘The decision under review is varied and a percentage of care of 86% to [YKPT] and 14% to [CHWG] applies from 1 September 2022.’
[41] Ex R1, 7.
EXHIBIT NUMBERS
I have marked the exhibits before me as follows:
Email and attachments from the Applicant dated 27 May 2024       Ex A1
Section 37 Documents provided by the Respondent  Ex R1
Email from the Other Party dated 8 May 2024  Ex OP1
I certify that the preceding sixty-eight (68)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
[sgnd]
……………………………..
Associate
Dated: 27 August 2024
Date of hearing:  15 August 2024
Advocate for the Applicant:      Self-represented
Advocate for the Respondent:  Katherine Whittemore,
  Sparke Helmore

[2024] AATA 3027

27 August 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction