YPRS and Child Support Registrar (Child support second review)

[2024] AATA 195

YPRS and Child Support Registrar (Child support second review) [2024] AATA 195 (13 February 2024)

Division:GENERAL DIVISION 

File Number:          2022/9915

Re:YPRS

APPLICANT

AndChild Support Registrar

RESPONDENT

AndKMSG

OTHER PARTY

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:13 February 2024

Place:Melbourne

The Tribunal sets aside the reviewable decision and in substitution decides:

(a)there was a change of care on 9 December 2021, with the relevant care period being 9 December 2021 to 15 March 2022;

(b)during the care period the percentage of care attributed to YPRS is 50% and the percentage of care attributed to KMSG is 50%; and

(c)the date of effect is 9 December 2021, with special circumstances arising in respect of the application for review under s 95N(2) of the Child Support (Registration and Collection) Act 1988.

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

Dr Stewart Fenwick, Senior Member

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.

Catchwords

CHILD SUPPORT – percentage of care – child temporarily resident overseas – consideration of actual care – determination of new percentages of care – whether ‘special circumstances’ arise – decision set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act1988 (Cth)

Cases
Child Support Registrar v BKCZ [2023] FCA 1109

Polec & Staker & Anor [2011] FMCAfam 959
P v Child Support Registrar [2013] FCA 1312

Secondary Materials

Department of Social Services, Child Support Guide (Guides to Social Policy Law, version 4.69, 6 February 2023)

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

13 February 2024

BACKGROUND

1. The Applicant applied on 30 November 2022 for the review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 27 October 2022. In this decision, AAT1 set aside an earlier decision and, in substitution, reinstated an earlier determination that KMSG provided 100% of the care for their child (C).

2. This matter relates to the impact, if any, of a period of approximately three months during which C was resident in Africa with their uncle, the brother of YPRS (B), between December 2021 and March 2022. Prior to 9 December 2021, when C departed for Africa, KMSG was determined to have 100% care of the child. Neither parent was with the child until 15 March 2022, when the Other Party travelled to join C.

3. After being notified by YPRS on 12 December 2021 of this travel, the Child Support Agency (the Agency) determined that each parent provided 0% care for C, with effect from 9 December 2021. KMSG subsequently objected to this decision, but on 1 April 2022, the Agency maintained its view with respect to the percentages of care.

4. KMSG sought review of this further decision before AAT1 on 17 August 2022. AAT1 decided that there were special circumstances pertaining to this lodgement date, and also determined that there had been no change in the care provided to C on or about 9 December 2021.

5. Of particular relevance to this matter are sums of money transferred to B by both YPRS and KMSG, and said to be for the purpose of supporting C during their stay in Africa. This does not exhaust the range of actions that are potentially of relevance to determining care. It appears that during the decision-making process in the Agency, material substantiating transfers was provided by YPRS. KMSG then provided similar evidence after the conclusion of the hearing before AAT1.

6. YPRS and KMSG were both self-represented before the Tribunal. YPRS lodged two bundles of documents comprising of:

   (d)a statement of the Applicant, and an email from his sister dated 28 May 2023, lodged on 31 May 2023 (Exhibit A1); and

   (e)various family law documents, lodged on 3 August 2023 (Exhibit A2).

7. The Respondent lodged documents under s 37 of the Administrative Appeals Tribunal Act 1975 (T), and a Statement of Facts, Issues and Contentions (RSFIC) dated 25 July 2023.

8. Evidence was given by both the Applicant and Other Party, and KMSG was assisted by an interpreter in the Tigrinya language.

   LEGISLATION

9. The provisions relevant to this matter are found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

10. Determining percentage of care is provided for in Division 4, Subdivision B of the Act. Briefly, consideration must be given to any pattern of care for a child in respect of a parent and where there is no pattern, the Registrar (or a decision-maker on review) must determine 0% for that parent (s 49 of the Act). Correspondingly, where there is such a pattern, a percentage must be determined ‘that corresponds to the actual care of the child that the Registrar is satisfied that the responsible person had’ (s 50 of the Act).

11. Under s 54F of the Act, a determination must be revoked if the actual care for a child taking place does not correspond to the responsible person’s existing percentage of care, and there would be a change to the cost percentage. A cost percentage is determined in accordance with s 55C and with reference to a person’s care percentage. For example, any percentage of care between 0 to less than 14% results in a cost percentage of ‘Nil’, and any percentage of care between 48-52% results in a cost percentage of 50%.

12. The recent decision of Thomas J in Child Support Registrar v BKCZ [2023] FCA 1109 (at [70]-[72]) provides relevant guidance on the interpretation of ss 49 and 50 and the consideration of actual care provided. In short, s 50 points to the determination of actual care provided, and ‘the most effective way of determining the “actual” care is to consider what has happened if that information is available’.

13. The R&C Act provides in Part VIIA for review of decisions in what are described as ‘AAT First Review’ and ‘AAT Second Review’. The R&C Act also provides here for the date of effect of an AAT First Review in decisions relating to percentage of care (as here). Under s 95N(1), if an application is not made within 28 days after notice of a decision is given, the date of effect of a decision is the date of decision on review, unless it is further determined that special circumstances exist. Further, under s 96A(c), such a decision is itself a reviewable decision at AAT Second Review.

14. The Child Support Guide (the Guide)[1] provides guidance to decision-makers in determining how care is provided, and I note that the concept of care is not defined in the relevant legislation. Relevantly, where there is doubt about whether and to what extent a person is providing care, consideration can be given to [2.2.1]:

    [1] Department of Social Services, Child Support Guide (Guides to Social Policy Law, version 4.69, 6 February 2023).

    ·To what extent the person has control of the child, including having overall responsibility for the child and making

    omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

    oarrangements for others to meet the needs of the child (delegated care).

    ·To what extent the 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 extra-curricular activities.

    ·To what extent the person pays for the costs of meeting the needs of the child.

    ·To what extent the person otherwise provides financial support for the child.

    ·To what extent the child provides for his or her own needs or has those needs met from another source.

    ·To what extent the child is financially independent or financially supported from another source.

15. This list of factors is similar to the factors identified in Polec & Staker & Anor [2011] FMCAfam 959 at [56]. Such factors are not intended to be exhaustive of matters that may be considered, it is only intended as a ‘workable guide’ (P v Child Support Registrar [2013] FCA 1312 at [107]).

16. Finally, the Guide also addresses what might constitute special circumstances for the late lodgement of an objection notification (albeit in the context of lodging an objection at the Agency stage, not at the Tribunal). Accordingly [4.1.8]:

    … The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from the date of the original decision. Some examples of special circumstances may include:

    • the parent was seriously ill or had an accident that stopped them from lodging an objection

    • the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

    • the parent had communication difficulties, including isolation, illiteracy or poor English language skills

    • the parent reasonably relied upon inaccurate or misleading information.

    ISSUES

17. The issues for consideration here are:

    (a)whether the previous existing care determination should be revoked;

    (b)if so, what percentage of care should be attributed to the Applicant and Other Party; and

    (c)what the date of effect of such determination should be.

    SUBMISSIONS

    Parents

18. Key matters raised by YPRS in his application before the Tribunal (T1, 4-5) are that he:

    (a)provided financial support to B totalling $4,473.14 for C’s stay overseas (T1, 6-8);

    (b)funded a stay of a month’s duration by C’s grandmother during the visit, including airfares costing $1844.78 (T1, 4); and

    (c)statements made by B about assistance provided by the parties are biased due to a personal conflict with YPRS (T1, 4).

19. Key matters raised by KMSG in the hearing before AAT1 (RSFIC [69.d.vi.]) were that she:

    (a)had evidence of payments for travel to Africa; and

    (b)provided financial support to B totalling approximately $2,350 for C’s stay overseas (T2/A4-6, 21-23).

20. There was material before AAT1 (RSFIC [69.d.v.]) that B had received funds from KMSG, and B denied receiving funds from anyone else (see also T54, 244).

    Registrar

21. At the hearing, the Respondent’s representative submitted that a range of factors beyond identifiable financial contributions should be considered when determining care. It was noted that there is no dispute between the parties about C’s outbound travel on 9 December 2021, nor that KMSG joined the child on or about 15 March 2022.

22. Briefly, the Respondent also submitted (RSFIC) that:

    (a)KMSG appeared to contend that care did not change during C’s travel to Africa and that she had intended to accompany the child, and had maintained contact throughout C’s absence [52] (see also T2 [31]);

    (b)before AAT1, the Other Party had relied upon her return international travel in April 2023, COVID isolation requirements, the need for assistance with documentation and the help of an interpreter, and misleading information from the Agency in support of the issue of special circumstances [80]; and

    (c)the Applicant contends these reasons are unjustified [81] (see also Exhibit A1).

23. The Respondent submitted (RSFIC) that in addressing the relevant statutory issues, the following matters require consideration:

    (a)the date of any change of care, and the appropriate care period [86];

    (b)whether there was a pattern of care during the care period, and the actual percentages of care provided by the parents [87];

    (c)if different percentages of care are applied, the existing determination should be revoked, and a new determination made [88];

    (d)the relevant date of effect [89]; and

    (e)whether there are special circumstances, and whether the date of effect should be as if the AAT1 application had been lodged on time [90].

    CONSIDERATION

    Revocation of existing care determination

24. Both parties gave consistent evidence at the hearing concerning C’s travel. I accept that the oral and written evidence demonstrates that their child travelled to Africa, in the company of a maternal Aunt on 9 December 2021. I am also satisfied that the evidence demonstrates that C lodged with their uncle B, the brother of YPRS.

25. I am satisfied that the written and oral evidence demonstrates that KMSG travelled to Africa on or about 15 March 2022, and from that date, also lodged with B. I also accept that C and KMSG returned to Australia together on 7 April 2022 (see for example, T39, 202).

26. To revoke the existing determination, which applied 100% care to KMSG prior to 9 December 2021, I must be satisfied that there was a change in the pattern of care when C travelled to Africa. I understand that to determine a pattern of care in respect of both parents I am to consider the actual care provided.

27. At the hearing, both parties were asked to confirm the nature and purpose of various international transfers, being funds remitted by them to B. YPRS affirmed the amounts transferred to B. In the case of one of the transfers, it was remitted in the name of his sister’s husband, as B was not available to receive the money.

28. YPRS also stated that he arranged his mother’s travel to spend time with his son, and she arrived about a week after C. She then spent ‘the whole time’ with C, B and the family. The Applicant stated that physical care of C was provided by his family, being his mother, brother, other siblings and their children. YPRS also gave evidence that he had regular contact with C during his time in Africa, as well as some initial contact with the wider family.

29. The Applicant stated that he has provided financial support to B on other occasions, usually for religious or public holidays, or for the birthdays of his nieces and nephews. He stated, however, that in those instances the sums transferred were much smaller than the amounts provided during C’s stay.

30. YPRS stated that he accepted that KMSG ordinarily has 100% care of C, and ‘she makes all the decisions’, without consulting him.

31. KMSG stated in evidence she had been prevented from accompanying C to Africa due to work commitments. She did not consider it unusual for C to reside with B because she has good relations and good communications with that family. C remained under the care of B during his stay, and she had given ‘full authority’ to B to take care of C.

32. KMSG affirmed in her evidence the amounts transferred to B. She further stated that she too had transferred amounts on other occasions, every 2-3 months, because B is a refugee. KMSG stated that the amounts sent during C’s stay were intended to support him, not the family.

33. The Other Party further stated that she has full responsibility for C under normal circumstances in Australia.

34. KMSG gave several reasons for her late application to review the objection decision: she was still in Africa at the time; the COVID pandemic; and, that she had seen a social worker who advised her to seek further advice. KMSG added in response to a question from myself that she requires assistance with the translation of materials.

35. I am satisfied, on the basis of the above evidence, that there was a change to the care for C during their stay with B in Africa. I am also satisfied that the evidence demonstrates a pattern of care in respect of both parents, and I will now consider how this should be attributed.

    Attribution of care

36. It is clear from the evidence and circumstances overall that neither party had direct and sole care for C during his time in Africa. The evidence indicates that KMSG alone determined the trip would take place, its timing, and furthermore personally delegated care to her brother-in-law. I do not consider that the mere fact that C stayed with the Applicant’s family has particular significance. I accept that YPRS assisted in his mother’s travel, and that she formed part of the family circle during a substantial part of C’s visit. The evidence does not necessarily indicate that any one person had a predominant role in C’s day-to-day care in Africa.

37. The question also arises as to how the parents otherwise met C’s needs during this time. I accept that both YPRS and KMSG had regular, possibly daily, remote contact with their son. I also accept that both parents made the identified financial transfers, and that these were – on the evidence – out of the usual scope of assistance provided to B, and directed toward the care of C. The transfers made by the Applicant are nearly double the value of those made by KMSG.

38. The question then arises as to what weight to afford the factors discussed above and, in particular, the value of the transfers made. While I have accepted there was a change to the prevailing pattern of care by KMSG from 9 December 2021, I consider that some weight must be given to her largely determining the opportunity for travel and making the sole decision as to C’s accommodation with, and care by, B and his family. Equally, some weight must be afforded to the financial contribution made by KMSG, and some weight to the ongoing contact with C throughout the stay.

39. However, some weight must also be afforded to the relatively substantial amount of funds transferred by YPRS. I do not have a comparator of financial support during normal times in Australia, however, I have to take account of the identifiable sums provided, in the particular context of C’s travel. I also give some weight to the ongoing contact with C during the visit.

40. Overall, I consider that it is reasonable to attribute to each parent 50% of the care of C during the period 9 December 2021 to 15 March 2022.

    Date of effect

41. Given the timing of KMSG’s application for review of the objection decision at AAT1, I need to consider whether there were special circumstances for the lodging of this application later than 28 days after the objection decision.

42. The circumstances were given relatively limited attention at the hearing, however the evidence provided is largely consistent with that arising from the wider material. The circumstances were addressed at some length by AAT1 [42]-[56], and the Respondent has also dealt with them comprehensively in writing (RSFIC [80]).

43. I note the following matters in particular, which were not subject to any robust contradiction:

    (a)the objection decision was made just under a week prior to KMSG’s return, following which she spent a week in isolation;

    (b)the Other Party speaks English as a second language;

    (c)a social worker at a multicultural community service frequented by KMSG was away when she initially sought assistance; and

    (d)assistance was subsequently provided by a paralegal, and it may be that there was a misunderstanding during a discussion with the Agency about KMSG’s rights.

44. I note the substance of the Applicant’s objection to special circumstances being taken into account is, in essence, that KMSG has demonstrated in the past the capacity to engage effectively with the child support and legal systems, albeit with the assistance of interpreting services.

45. I do not consider the counter-submission by YPRS raises evidence sufficient to overturn the detailed evidence I have before me that KMSG appears to have experienced a number of critical impediments to advancing her review rights from the objection decision with AAT1. Moreover, the explanations advanced fall comfortably within the types of circumstances identified in the Guide.

1. Accordingly, I am satisfied that there were special circumstances that prevented the earlier lodging of KMSG’s initial application before AAT1. The date of effect should be as if that application had been lodged on time, and I determine that the date of effect is 9 December 2021.

   DECISION

2. For the reasons given above the Tribunal sets aside the reviewable decision and in substitution decides:

   (a)there was a change of care on 9 December 2021, with the relevant care period being 9 December 2021 to 15 March 2022;

   (b)during the care period the percentage of care attributed to YPRS is 50% and the percentage of care attributed to KMSG is 50%; and

   (c)the date of effect is 9 December 2021, with special circumstances arising in respect of the application for review under s 95N(2) of the Child Support (Registration & Collection) Act 1988.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 13 February 2024

Date of hearing:	1 February 2024
Date final submissions received:	3 August 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Services Australia
Other Party:	Self-represented