ZBYM; Child Support Registrar and (Child support second review)
[2021] AATA 1034
•15 April 2021
ZBYM; Child Support Registrar and (Child support second review) [2021] AATA 1034 (15 April 2021)
Division:GENERAL DIVISION
File Number(s): 2019/7236
Re:Child Support Registrar
APPLICANT
AndZBYM
RESPONDENT
AndGTQB
OTHER PARTY
DECISION
Tribunal:Senior Member C. J. Furnell
Date:15 April 2021
Place:Melbourne
The decision under review in this proceeding is set aside. In substitution for that decision and being satisfied that the Respondent had a pattern of care of Jill during the period of 1 December 2017 to 12 September 2019 (being the period considered by the Tribunal to be appropriate having regard to all the circumstances), the Tribunal determines the Respondent’s percentage of care for Jill during that period to be 7%.
..........................[SGD]..............................................
Senior Member C. J. Furnell
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 decision – actual care – pattern of care – dispute about percentage of care – application of legislation during care period – consideration of evidence as to percentage of care – decision under review set aside and substituted
LEGISLATION
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018
CASES
Ahmad and Ahmad (Child support) [2019] AATA 6410
Child Support Registrar v MQMV [2019] FCA 1171
P v Child Support Registrar [2013] FCA 1312
Parent A and Child Support Registrar [2013] AATA 562
Polec & Staker & Anor [2011] FMCfam 959
Promphat and Child Support Registrar (Child support) [2020] AATA 2134
VGLV and Child Support Registrar (Child Support Second Review) [2019] AATA 1097
SECONDARY MATERIALS
Guides to Social Policy: Child Support Guide
REASONS FOR DECISION
Senior Member C. J. Furnell
15 April 2021
This proceeding was instituted by the Registrar who has asked that the Tribunal review a decision of the Tribunal’s Social Services and Child Support Division (SSCSD) made on 3 October 2019 (the AAT first review decision).[1]
[1] T2 (noting that references to “T” are references to documents provided under s37 of the Tribunal’s constituent legislation by the Registrar, the numeral denoting the relevant document’s order of appearance in the index of documents so provided).
In that decision the SSCSD determined that the Respondent’s percentage of care of his daughter (who, in this decision, is referred to as Jill)[2] fell from 28% to 7%, with effect from 13 May 2019. According to the Registrar, the problem with that determination concerned its date of effect. As the Registrar would have it, the reduction in the Respondent’s percentage of care should have taken effect from 1 December 2017 if, as the other party submitted, that was the date when the reduction in care had, in fact, occurred.
[2] T1 - Consistent with Child Support (Registration and Collection) Act 1988 (CSRCA), s16, no party to these proceedings or any witness will be identified in these reasons.
While that describes the Registrar’s difficulty with the AAT first review decision it does not describe the task now to be undertaken by the Tribunal. That task involves the making of the correct or preferable determination of the Respondent’s percentage of care of Jill.
In order to understand what that task entails it is necessary to have some understanding of the procedural and factual background and legislative context.
Procedural and Factual background
The Respondent is the father and the other party is the mother of Jill. The father and the mother are separated.
A parent’s percentage of care of a child is a factor of relevance in determining the level of child support payments which the parent is liable to pay, or entitled to receive, under the Child Support (Assessment) Act 1989 (CSAA).[3] That liability and entitlement can change when, for instance, a parent’s percentage of care of a child changes to an extent sufficient to constitute a change in the parent’s cost percentage under s55C of the CSAA.
[3] The costs of a child are to be met by both parents according to their respective capacity to meet the costs (s35B). The percentage of care is used to assess the extent to which a person is taken to meet a child’s costs through care, as reflected in the relevant cost percentage-see CSAA, s55C.
As from 7 May 2008 the father’s percentage of Jill’s care had been determined to be 28% and the mother’s 72%.[4]
[4] T6; T32.
On 13 May 2019 the mother told the Registrar that her percentage of care in relation to Jill had increased to 93% from December 2017, with Jill only residing with her grandmother (the father’s mother) for around one night every fortnight.[5] This was said by the mother to have been the case since late 2017 or since December 2017.[6]
[5] T7.
[6] T10; T15.
The father disagreed. He said that Jill stayed with his mother (and had been in his care) [7] every second Friday and Saturday night since December 2017 up until 13 May 2019.[8]
[7] T9.
[8] The intent to have the two nights per fortnight care proposition apply from December 2017 was made clear by the father in oral evidence at the hearing of this proceeding.
On 20 June 2019 the father was assessed for child support payments partly on the basis that his percentage of care for Jill had been reduced to 7% as from 1 December 2019.[9]
[9] T24; T25, page 99.
The father objected to the decision to so reduce his percentage of care. This objection was disallowed on 26 June 2019.[10] As would become apparent, the father’s issue with the assessment of 20 June 2019 was with the attribution of a 7% level of care in the period from December 2017 to 13 May 2019.
[10] T30.
The father sought the Tribunal’s review of the disallowance decision, resulting in the AAT first review decision of 3 October 2019.
Effectively, that decision adopted the father’s position in that the reduction in the father’s care percentage of Jill to 7% took effect from 13 May 2019, rather than 1 December 2017. Unlike the father’s submissions at the hearing of this proceeding, however, that position was seemingly adopted because it was said to reflect an agreement of the mother and father[11] (despite, apparently, its having been also agreed that the relevant care change had, in fact, occurred prior to 13 May 2019).[12]
[11] T2, [9].
[12] T2, [7].
By application lodged with the Tribunal on 4 November 2019, the Registrar sought review of the AAT first review decision.
At the hearing of this proceeding the father accepted that, as at 13 May 2019, his level of Jill’s care had reduced to a level consistent with him being attributed with 7% of her care. Contrary to what was said by the SSCSD to have been agreed, however, the father contended that the reduction to that 7% care level had not occurred prior to 13 May 2019.
On 4 October 2019 the Registrar made a new “care change decision.” With effect from 13 September 2019 the mother’s percentage of Jill’s care was changed to 84% and the father’s changed to 16%.
Legislative context
The Tribunal has jurisdiction to conduct the review sought by the Registrar because the AAT first review decision was a decision on review of a care percentage decision.[13]
[13] CSRCA, s96A 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 that was made under a provision of Subdivision B of Division 4 of Part 5 of the CSAA.[14]
[14] CSRCA, s4(1) definition of “care percentage decision”.
The AAT first review decision involved a review of such a decision. It was a review of a decision to disallow an objection. The objection was to a decision as to the particulars of an assessment which involved a determination of the father’s percentage of Jill’s care. That determination was, 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 determinations of percentage of care (and noting that the provision relied upon by the Registrar in disallowing the father’s objection is one which falls within that Subdivision[15]).
[15] T30, page 145 - reference is made to s54F of CSAA.
In making a percentage of care determination, the questions in issue are a function of the provisions which confer the power and impose the obligation on the Registrar (and the Tribunal standing in the shoes of the Registrar) to make determinations as to a person’s percentage of care of a child.
Given that there is no material before me suggestive of what is defined in the CSAA as a care arrangement, those provisions are to be found in ss49 and 50 of the CSAA.
If I decide that the father has not had and is not likely to have a pattern of care for Jill in the “care period” (a concept to which I will return) then, under s49, his percentage of care for Jill must be determined to be zero.
If I decide, however, that the father has had, or is likely to have, a pattern of care for Jill during the care period, then, under s50, his percentage of care for Jill must be determined to be the one that corresponds with the actual care of Jill that I am satisfied that he has had, or is likely to have, during the care period.
Given the terms of those provisions the questions in issue are:
·What is the period (or what are the periods) I consider in all the circumstances to be appropriate, that is, what is to be the care period (or what are to be the care periods)?
·Has the father had, or is he likely to have, a pattern of care for Jill during that care period (or those care periods)?
·If so, what percentage corresponds with the actual care of Jill that I am satisfied that the father has had, or is likely to have, during that care period (or those care periods)?
Care period
In all the circumstances I consider that the care period is the period commencing on 1 December 2017 and ending on 12 September 2019.
As I see it, it is appropriate to start the care period on 1 December 2017. For reasons which I will get to shortly, that is the date of effect of the determination which replaced the father’s then existing care percentage determination. Moreover, on or around that date, there was a change of significance in Jill’s care. [16] Evidence from both the father and the mother was to the effect that, from December 2017, the father had substantially less than his then currently determined percentage of care of Jill (being 28%).
[16] 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].
It is also appropriate to end the care period on 12 September 2019. The Registrar had made a new care percentage determination with effect from the following day, a new determination which was not in fact, or deemed[17] to be, under review in this proceeding. In the legislative context I have just outlined, the Registrar could only have made that new determination by first revoking any determination in place up to 12 September 2019 (noting that a care percentage determination generally applies until revoked[18]).
[17] The new determination taking effect on 13 September 2019 might be considered a substitution of the determination the subject of review in this proceeding. If so, the determination as so substituted would now be the subject of review if the substitution had occurred after the application for review made by the Registrar on 4 November 2019-s97C CSRCA. In fact, however, any such substitution occurred before then, given that the Registrar’s new determination was made on 4 October 2019.
[18] CSAA, s54B(1A).
I appreciate that the Child Support Guide[19] suggests that a care period should generally be a period of 12 months and that the Tribunal should apply government policy such as that expressed in the Guide, absent a cogent reason to the contrary.
[19] Version 4.45 - Released 2 January 2020.
Here, however, we are only dealing with the past (so that there is no need for flexibility to deal with potential, future changes). Further, apart from the issue as to when the father’s percentage of care of Jill dropped to 7%, there is no material before me suggestive of any other specific, measurable, change in care arrangements in the care period I have adopted.
1 December 2017 as date of effect of replacement determination?
As I mentioned, ss49 and 50 of the CSAA confer the power and impose the obligation to make care percentage determinations.
A determination which the Registrar is required to make under s49 or s50 takes effect “on and from the application day.” The application day is, generally, the day that begins immediately after the day on which revocation of the earlier determination takes effect.[20]
[20] CSAA, s54B(2)(c)(ii).
Hence, the date of effect of a new determination is a function of the date on which revocation of the earlier determination takes effect.
The date on which revocation of an earlier determination takes effect is a function of the provision under which that revocation occurs.
Revocation under 54F
The determination that had been in place in relation to the father’s percentage of care for Jill from 2008 was required to have been revoked under section 54F of the CSAA.
Section 54F applied so as to require revocation of that determination because:
·The Registrar had been notified by the mother that the care of Jill actually taking place did not correspond with the father’s existing determined percentage of care for Jill (being 28%). Pausing here, I note that the father accepts that the level of his care of Jill from December 2017 did not justify a care percentage of 28%.
·Revocation of the determination that had been in place was not mandated under section 54G of the CSAA. (No party has contended that the section applies in the circumstances given, presumably, an acceptance that the mother’s notification of 13 May 2019 of a change in the father’s percentage of care from December 2017 did not constitute notification within a period that would be considered reasonable in the circumstances.[21])
·As noted earlier, there is no suggestion that a care arrangement applied in relation to Jill.
·The Registrar ought to have been satisfied that the father’s cost percentage for Jill would change if the Registrar were to determine a new care percentage in relation to the father.
[21] see paragraph 54G(1)(d) CSAA.
This last point reflects what is, from the father’s perspective, the crucial point in issue in this proceeding.
The father submits that the Registrar ought not to have been satisfied that his cost percentage for Jill would have changed on the making of a new care percentage determination having effect before 13 May 2019.
The father accepts that his percentage of care of Jill had by 13 May 2019 dropped to 7%. A percentage of care at that level would result in a change in the father’s cost percentage under section 55C of the CSAA. Under that section, when the father’s care percentage fell to less than 14%, his cost percentage shifted from 24% to nil.
The father does not accept, however, that his care percentage of Jill dropped below 14% before 13 May 2019. Accordingly, he submits that revocation could not have occurred under s54F prior to then and, hence, any new determination could not have been made with effect prior to then.
Date of effect of a 54F revocation
The provisions of s54F have been the subject of several relevant amendments. Before examining their effect in context, however, I mention that, in determining the date of effect of a s54F determination revocation, much depends on the “change of care day”. In the context of such a revocation, it is “…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.”[22]
Version pre 23 May 2018
[22] CSAA, s5.
In its form prior to 23 May 2018, s54F(2) of the CSAA provided that:
(2) The revocation of the determination takes effect at the end of:
(a) if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:
(i) in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or
(ii) otherwise—the day before that change of care day; or
(b) if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended—the day on which the interim period ends; or
(c) otherwise—the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.
Applying the CSAA in that form would have the date of effect of revocation of the father’s pre-existing 28% care determination being 12 May 2019. This is so whether the father or the mother’s submissions concerning changes in their respective percentages of care of Jill are accepted.
Acceptance of the mother’s submissions would result in a 12 May 2019 date of revocation as she gave notice of the change in care more than 28 days after the change of care in (according to her submissions) December 2017.
Acceptance of the father’s submissions would result in a 12 May 2019 date of revocation also. It represents the day before the change of care day.
As already mentioned, while the father accepts that his level of care of Jill fell below 28% well before 13 May 2019, he contends that it only fell to a level that required action under s54F (i.e., a level that resulted in a change in his cost percentage) on 13 May 2019.
In this regard, I accept the father’s implicit submission that, when determining the date of effect of a determination revocation under s54F, the change of care day concept is one that does not encompass each and every day on which a responsible person’s percentage of care of a child changes so as to differ from the then determined percentage. As I see it, it only extends to the first day on which an “actionable” or “operative” change in a responsible person’s percentage of care occurs (so that, for instance, the change is sufficient to result in a cost percentage change). In a context where, as here, there is no “care arrangement” or determination suspension, the change of care day concept only applies if there has been a determination revocation. There can only be a determination revocation under s54F when the change in care is actionable or operative in the sense that it gives rise to a cost percentage change. In a context where there may be multiple changes in a responsible person’s percentage of care of a child (as, according to the father, there was here[23]), it seems unlikely that the legislature would have intended to back date the effect of a determination revocation with respect to a significant change in care (i.e., one that effects a change in cost percentage) to the date of an earlier, potentially insignificant, change of care.
Version post 22 May 2018 to 1 July 2018
[23] His submissions suggest a drop from 28% care percentage as from December 2017 and then a further drop to below 14% on 13 May 2019.
Two sets of amendments with particular relevance to this proceeding were made to the CSAA pursuant to the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (the 2018 Amending Act).
The first set of amendments[24] had effect on and from 23 May 2018.[25] Under that set of amendments s54F(3) read as follows:
(3) The revocation of the determination takes effect at the end of:
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or
(b) otherwise—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter.
[24] Schedule 1, part 1 to the 2018 Amending Act.
[25] 2018 Amending Act, s2 and schedule 1, part 1, cl39.
Applying the CSAA in its form as at 23 May 2018 would again have the date of effect of revocation of the father’s pre-existing 28% care determination being 12 May 2019. For the reasons just outlined, this would apply irrespective of whether the father’s or the mother’s submissions were accepted.
Version post 1 July 2018
A second set of amendments made by the 2018 Amending Act[26] had effect on and from 1 July 2018.[27] Under this second set of amendments a new s54F(3) was inserted into the CSAA as follows:[28]
(3) The revocation of the determination takes effect at the end of:
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or
(b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i) the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii) the responsible person’s care of the child has reduced—the day before the change of care day.
[26] Schedule 1, part 4 to the 2018 Amending Act.
[27] 2018 Amending Act, s2.
[28] 2018 Amending Act, schedule 1, part 4, cl176.
Applying the CSAA in its form as at 1 July 2018 would have the date of effect of revocation of the father’s pre-existing 28% care determination being 12 May 2019 if the father’s submissions were accepted. If the mother’s submissions were to be accepted, however, the date of effect of revocation of that determination would be 30 November 2017.
The date of effect of revocation would be 12 May 2019 if the father’s submissions were accepted for the reason I previously outlined in relation to those submissions (dealing with an “actionable” or “operative” change of care only occurring on 13 May 2019, so that notice of the change would be considered to have been given within 28 days of its occurrence).
The date of effect of revocation would be 30 November 2017 if the mother’s submissions were accepted because it would be “the day before the change of care day.” Acceptance of the mother’s submissions would involve a finding that an actionable or operative change in the father’s care percentage had occurred on 1 December 2017 (when, according to those submissions, the father’s care percentage dropped from 28% to below 14%) in a context where his care of Jill had reduced[29] and the Registrar had received notice of the reduction more than 28 days after the change of care day.
Which version of CSAA to apply?
[29] The concept of “reduced care of a child” is defined in s54 of the CSAA in a way which has it only applying in a context where, unlike in this proceeding, a “care arrangement” applies. That concept does not have application to the reference in s54F to a situation where “the care of the child has reduced”. Where the legislature has intended that the concept apply, it has almost precisely employed the words of the concept. Hence, for example, the words “reduced care of the child” have been used where it is clear that the concept was intended to apply in s51(1), 53A(1), 53A(2) and 53A(3).
In this proceeding, the applicable version of s54F is that which applied post 1 July 2018.
If the mother’s submissions were accepted, this conclusion might be considered to result in the amendments made by the 2018 Amending Act having retrospective effect (given that the father’s 28% care percentage determination would be revoked and replaced from 1 December 2017, prior to commencement of the amendments).
The presumption that has legislation generally being construed so as to avoid retrospectivity, however, does not survive the legislature’s contrary intent. The 2018 Amending Act contains an expression of such intent.
In particular, clause 183 of Part 4, Schedule 1 to the 2018 Amending Act provides as follows:
183 Application—date of effect rules
The amendments of the Child Support (Assessment) Act 1989 made by this Division apply in relation to:
(a) changes of care days that occur on or after the day this item commences; and
(b) changes of care days that occur before the day this item commences if the Registrar or Secretary is notified, or otherwise becomes aware, of the change of care more than 26 weeks after the day this item commences.
As I see it, in enacting cl183, the legislature has expressed a clear intent that certain amendments to the CSAA (which would include the amendment inserting a new s54F(3)) apply to a change of care day occurring prior to commencement of the amending legislation when notice of the relevant change in care is given more than 26 weeks after 1 July 2018. That was the case with the mother’s notice of 13 May 2019 in relation to the change she alleged had occurred around 18 months earlier.
Support for this construction of the CSAA as amended by the 2018 Amending Act is found in the revised explanatory memorandum for the latter Act. There, at p46, it is said that “…a parent who had reduced their care of a child before commencement but failed to notify of the change until more than 26 weeks later would have the reduced care percentage reflected in their child support assessment from the date of the care change. This could lead to a child support overpayment or arrears debt…”.
While the father did not dispute this construction of the CSAA, as amended,[30] it is not one that has found favour in several decisions of the Tribunal.
[30] Respondent’s response of 17 September 2020 prepared by Victoria Legal Aid (R’s SFIC) - where, on p1, it is said that “My client agrees that the Registrar is correct in the interpretation of s 54F of the Child Support
(Assessment) Act 1989.”
The AAT first review decision did not adopt it (albeit that it would not appear to have been a construction then put to the SSCSD). Instead, as mentioned earlier, the SSCSD decided that 13 May 2019 was the date of effect of the new care percentage determination seemingly in order to reflect what the mother and father had agreed. With respect, as I see it, such an agreement is irrelevant. Under the CSAA, an agreement of the responsible persons in relation to a child’s care as to the date of effect of a new care percentage determination is not a criterion by reference to which that date is determined.
In Ahmad[31] the version of the CSAA applicable from 1 July 2018 was said not to apply to a change of care day before 23 May 2018 because the 23 May 2018 version of the CSAA did not apply to such days; “…if the substituted section 54F of 23 May 2018 did not apply, then it follows that any future replacement legislation in respect of section 54F also does not apply.”[32] With respect, I do not see why this follows. In particular, I do not see why it follows that the scope of a replacement legislative provision is constrained by the scope of the provision being replaced where (as here) to do so entails a failure to give effect to an express, clear, legislative provision to the contrary (as reflected in cl183). The Tribunal in Ahmad did not refer to cl183.
[31] Ahmad and Ahmad (Child support) [2019] AATA 6410.
[32] Ibid at [17]
In Promphat,[33] while the Tribunal noted cl183, it appeared to have given it little effect (at least insofar as the clause is expressed to apply to change of care days occurring prior to commencement of the 2018 Amending Act). Instead, the Tribunal reached the same conclusion as it had in Ahmad, for apparently the same reason. There it was said that “…as the amendments to subsection 54F(3) of the Act (as introduced by the 23 May 2018 amendments) have no application in this matter, then it follows that the 1 July 2018 also cannot apply.”[34] As I just indicated, it is not clear to me why this follows.
[33] Promphat and Child Support Registrar (Child support) [2020] AATA 2134.
[34] Ibid at [22].
Giving effect to clause 183 of Part 4, Schedule 1 to the 2018 Amending Act means that, in the circumstances under consideration, the post 1 July 2018 version of s54F applies.
When did relevant change of care occur?
The outcome of application of that version of s54F depends very much on when an actionable or operative change of care occurred.
The mother’s submissions would have it occurring on 1 December 2017 when, according to her, the father’s percentage of care dropped to 7% (and, hence, dropped to a level sufficient to result in a change in the father’s cost percentage under s55C). Acceptance of those submissions would result in a decision supportive of the 20 June 2019 assessment of the father.
The father’s submissions would have it occurring on 13 May 2019 when, according to him, his percentage of care first dropped to a level sufficient to result in a change in his cost percentage under s55C. Acceptance of those submissions would result in a decision which affirmed the AAT first review decision.
Consistently with the mother’s submissions, I find that the father’s percentage of care of Jill was, in a care period commencing on 1 December 2017, at a level below 14%.
A responsible person’s percentage of care “must be a percentage that 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]
[35] CSAA, s50(3).
The concept of “care” is multi-faceted. Factors that might be considered include[36] the extent to which:
·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.
·the responsible person makes arrangements for others to meet the needs of the child.
·the responsible person pays for the costs of meeting the needs of the child.
·the responsible person otherwise provides financial support for the child.
·the child provides for his or her own needs or has those needs met from another source.
·the child is financially independent or financially supported from another source.[37]
[36] The list is not exhaustive - P v Child Support Registrar [2013] FCA 1312 at [107].
[37] Polec & Staker & Anor [2011] FMCfam 959 at [56].
In all cases, however, the extent of care afforded by a person is to be determined on the basis of the facts and circumstances of the particular case.
Guidance on how the actual care of a child may be determined is provided by s54A(1) of the CSAA which states that:
The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
The mother’s and (especially) the father’s evidence (and the material before me) focussed particularly on the number of nights on which they had the care of Jill. It seems to me that I am able to determine percentages of care based on this evidence and material, as permitted under s54A, without giving rise to an unfair reflection of the extent of Jill’s care in fact provided by either the mother or the father.
Other than a brief submission made after the hearing (to which the father was given an opportunity to reply, and did reply), the mother elected not to either appear at the hearing of this proceeding or make any submissions in response to those of the father. Nevertheless, her position concerning Jill’s care is reflected in the material before me. It is clear from that material that, according to the mother, since late 2017 or since December 2017,[38] Jill was in her care for 339 nights of the year, while spending 26 nights of the year (i.e., one night every fortnight) at her paternal grandmother’s home.[39] (As an aside, I accept the father’s contention that Jill was in his care when she stayed the night with her grandmother. This is consistent with the evidence of both the father[40] and grandmother.[41] The mother disagrees[42] but the basis on which she makes factual assertions as to the extent of care afforded by the father when Jill stays with her grandmother is unclear.)
[38] T10; T15.
[39] See, for example, mother’s emails of 6 June 2019 at T15, pages 61 and 65.
[40] T9 - father stated on 14 May 2019 that he still makes all decisions concerning Jill’s wellbeing when she stays with her grandmother.
[41] T14 - letter from grandmother received on 4 June 2019 to effect that when Jill stays with her the father “has full parenting responsibilities” - so too at T18, page 98.
[42] See email form the mother of 10 February 2021.
The mother’s position concerning the extent of the father’s care of Jill (i.e., the extent to which Jill spent nights at her paternal grandmother’s home) is corroborated by those of several others.
In May 2019[43] a neighbour of the mother stated that for well over a year Jill had been picked up by her father fortnightly on a Friday around 5:30 PM, with Jill returning home the next day at around morning to mid-morning. The neighbour also stated that there had been a lot of Saturday nights where he had picked up Jill from her former employer (where she worked casually) and driven her home, to her mother’s house.
[43] T15, page 64.
In June 2019:
·Jill’s boyfriend’s mother stated that almost every Saturday Jill and her son spent time together with either her or Jill’s mother “dropping and picking the kids up from the shops or each other’s houses.” The father was said to have dropped Jill off at her house on Saturday mornings “on numerous occasions”. [44]
·Jill’s auntie (and the mother’s sister) stated that for well over a year Jill only spent time with her father every second Friday night when she stayed with her grandmother, coming home on a Saturday before lunch. She also stated that she sees “them every day”, as she lives around the corner from her sister.[45]
·A police constable stated that, to her understanding, Jill was picked up by her father every second Friday around 5:30 PM, sleeps at her grandmother’s house and is then dropped off home the next morning, with this arrangement having been ongoing since 2017. The police constable also stated that she had been a close family friend of both the mother and Jill since 2016.[46]
·The mother’s sister-in-law stated that Jill slept over at her grandmother’s house every second Friday and then goes back to her mother’s place on Saturdays. [47]
[44] T15, page 62.
[45] T15, page 87.
[46] T16, page 89.
[47] T16, pages 90-91.
While hearsay (and, hence, something to which I attribute little probative value), I note Jill’s boyfriend’s mother and her auntie both stated that Jill had said that she sleeps at her grandmother’s house every second Friday night.
The father’s submission concerning the extent of his care of Jill in the care period is that she was in his care every second Friday and Saturday night since December 2017 up until 13 May 2019 (or, as put at the hearing of this proceeding, for the majority of those fortnightly Friday and Saturday nights).
Unlike that of the mother, the father’s submission is not clearly corroborated. Moreover, as I see it, it is difficult to reconcile with some of the material submitted and submissions made on his behalf.
In an apparent effort to corroborate his evidence the father submitted two statements from his mother (the grandmother with whom Jill stayed fortnightly).[48] In each such statement it was simply asserted that Jill stayed with her grandmother “during the weekends”. When asked to explain this somewhat coy statement in a context where the issue in dispute was whether Jill stayed with her grandmother on a Friday and Saturday night, fortnightly, the father suggested that it was due to his mother’s poor grasp of English. Whatever the case, as expressed, the grandmother’s statements are not such as to constitute clear corroboration of the father’s submissions.
[48] T14, page 58; T18, page 98.
In an undated letter apparently received by the Registrar on 4 June 2019 the father stated that during the last financial year Jill “…has been in my care on alternating Friday nights, with the occasional Saturday night as well.”[49]
[49] T14, page 59.
When asked why in the letter he suggested that he only occasionally had care of Jill on alternating Saturday nights the father stated that the reference to “the occasional Saturday night” was a typographical error. I think this is unlikely especially as, later in the letter, the father speaks of having the care of Jill on nights outside the usual fortnightly rotation and expressly refers to a particular Saturday night as an example of this.
In the R’s SFIC, in support of a submission which I will address shortly, there is an analysis of certain of Jill’s telephone records covering an aggregate period of 183 days. Based on those records alone it was contended on the father’s behalf that Jill could be considered to have been in his care for at least 23 of those 183 days. Acceptance of that contention, however, would reflect implicit acceptance of Jill having rarely been in her father’s care on consecutive Friday and Saturday nights (noting that in the period of 183 days there were only two instances of consecutive days of alleged care, amounting to four days in total).
This might explain why, in the R’s SFIC, the father’s position as to his regular fortnightly level of care of Jill is watered down somewhat, being expressed in terms of him having instructed his lawyers that Jill spent time with him “at least 1 - 2 nights per fortnight on average”.
Despite that instruction, the R’s SFIC contains a submission to the effect that Jill was in the father’s care for around 57 nights per year. When basing his care percentage on the number of nights Jill was in his care, acceptance of that submission would avoid a change in the father’s cost percentage (a change which would occur were Jill to have been in his care for less than 52 nights per year).
There are three components to that 57 days per year calculation the validity of two of which I doubt.
The first component is derived from the telephone records analysis to which I referred earlier. Given that those records were said to reveal that Jill was in the father’s care for 23 days out of 183 days, it was contended that Jill could be said to be in the father’s care for at least 46 days per year.
I am not satisfied that the telephone records support that contention. The analysis upon which it relies appears to me to be defective.
For instance, on the basis of those telephone records, it is contended that Jill was in the father’s care for seven nights of the 72 day period commencing on 12 October 2018 and ending on 22 December 2018. The dates on which Jill was said to be in her father’s care include:
·27 October 2018. While Jill would appear to have made calls from her grandmother’s suburb on the morning of that day, in the evening she made calls from her mother’s suburb. This suggests she spent the night under her mother’s care.
·23 November 2018. Jill would not have appeared to have made any calls from her grandmother’s suburb on that day. While on the next day she made calls from her grandmother’s suburb, they were followed by later calls made on that day from her mother’s suburb.
·9 December 2018. Jill would not appear to have made any calls from her grandmother’s suburb on that day.
·22 December 2018. While Jill would appear to have made calls from her grandmother’s suburb on the morning of that day, later calls on that day were made from a suburb adjacent to that of her mother’s.
The next component of that 57 day per year calculation is based on a contention that Jill was in her father’s care for around an additional eight nights per year. The foundation for this contention was an assertion that, over a 17 month period, due to her and her mother arguing, Jill had resided under her father’s care on at least four separate occasions, amounting to 12 nights in aggregate.
Why at least some of these additional 12 nights were not already taken up in the 46 night per year component of the 57 day calculation is unclear. In any event, however, on the material before me, I am not satisfied that Jill did reside under her father’s care on at least four separate occasions (amounting to 12 nights in aggregate), consequent upon her having argued with her mother.
The additional 12 nights is said to include a singular stay with the father (or, at least with his mother) of seven consecutive nights. No mention of such a stay is made by the father in material he lodged with the Registrar, prior to lodgement of the R’s SFIC. Indeed, in that material, the father made mention of Jill being in his care as a result of his daughter arguing with the mother on three occasions, not four occasions, which were said by the father to usually involve a couple of nights.[50]
[50] T9, page 51; T14, page 59; T18, page 100; T23, page 109.
As I noted earlier, while the 57 day per year calculation is one made on the father’s behalf in the R’s SFIC, it is clear from the SFIC what the father’s instructions were to those preparing the submissions. They were that Jill “spent time with him at least 1 - 2 nights per fortnight on average.” While at the hearing of this proceeding the father was not accepting of the proposition that Jill was in his care for less than 52 nights per year in the period from December 2017 to May 2019, those instructions suggest that this might not have always been the case.
That this was so is also reflected in the father’s initial objection to an assessment based on him having 7% of Jill’s care.
In that objection the concern expressed by the father was not as to the percentage of Jill’s care attributed to him but to the back-dating of application of that percentage contrary, so the father said, to representations made to him.[51] This objection to back-dating was reflected in two letters sent by the father in June 2019 to the Registrar.[52] Indeed, on 17 June 2019, the father was said to understand the reduction of his percentage of care to 7% from December 2017 but that his objection was to it taking effect from then, given representations he said had been made to him to the effect that the decision would not be back-dated.[53] As at 24 June 2019 the Registrar thought the father objected “…because he disputes our decision to give effect to his decreased percentage of care from 1 December 2017 as our letters stipulate that…we can only make the change from the date he makes us aware.” [54] On 25 June 2019 the father was said to have “…confirmed that he does not dispute the assessment reflecting he provides 7% care of …[Jill] from 1 December 2017, but he does dispute the effective date being 1 December 2017.”[55]
[51] T27.
[52] T19, page 102; T27, page 136.
[53] T18, page 100.
[54] T28.
[55] T29.
In summary, the mother’s submissions as to the percentage of Jill’s care that ought be attributed to the father are extensively corroborated and consistent, while the father’s submissions as to that matter are not clearly corroborated and have been somewhat inconsistent. Hence, as I indicated earlier, I find that the father’s percentage of care of Jill was, in a care period commencing on 1 December 2017, at a level below 14%.
In terms of s54F, this means that an actionable or operative change of care occurred on 1 December 2017. Under the applicable version of s54F (i.e., the one that applies from 1 July 2018), the result is that revocation of the father’s 28% percentage of care determination took effect from the day before 1 December 2017, 30 November 2017.
With revocation taking effect on 30 November 2017, the date of effect of the new determination (its application day) was the day beginning immediately after 30 November 2017, 1 December 2017.
Has the father a pattern of care?
I find that the father had a pattern of care for Jill during the care period.
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.[56] In considering a person’s pattern of care, the actual care of the child in question in the relevant care period must be considered.[57]
[56] Parent A and Child Support Registrar [2013] AATA 562 at [33].
[57] NHVK and Secretary, Department of Social Services (Child support second review) [2019] AATA 78 at [46].
As from 1 December 2017 both the father and mother agreed that Jill was in the father’s care (or, from the mother’s perspective, with her paternal grandmother) regularly, for at least one night per fortnight, on average.
What percentage corresponds with the actual care of Jill that the father had during the care period?
As I am not satisfied that the father had no pattern of care in the care period, the determination to be made upon revocation of the 28% care percentage determination is one to be made under s50 of the CSAA, rather than s49.
Under s50 the percentage of care to be determined must be one that corresponds with the actual care of Jill that I am satisfied that the father had during the care period.[58]
[58] CSAA, s50(3).
I find that the father had during the care period a percentage of care of Jill of 7%, a percentage which I am satisfied corresponds with the level of his actual care of Jill in that period.
This finding reflects and is consistent with the mother’s submissions concerning the extent to which Jill was in her care or residing with her paternal grandmother in the care period. As noted earlier, I have accepted those submissions in preference to those of the father.
Decision
The decision under review in this proceeding is set aside.
In substitution for that decision and being satisfied that the Respondent had a pattern of care of Jill during the period of 1 December 2017 to 12 September 2019 (being the period considered by the Tribunal to be appropriate having regard to all the circumstances), the Tribunal determines the Respondent’s percentage of care for Jill during that period to be 7%.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell
..........................[SGD]..............................................
Associate
Dated: 15 April 2021
Date(s) of hearing: 18 January 2021 Advocate for the Applicant: J. Hutton Solicitors for the Applicant: Australian Government Solicitor Counsel for the Respondent: V. Stoilkovska Advocate for the Respondent: K. Lieschke Solicitors for the Respondent:
Other Party:
Victoria Legal Aid
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