ZSKL and Child Support Registrar (Child support second review)
[2022] AATA 32
•14 January 2022
ZSKL and Child Support Registrar (Child support second review) [2022] AATA 32 (14 January 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1591
Re:ZSKL
APPLICANT
AndChild Support Registrar
RESPONDENT
AndMDJL
OTHER PARTY
DECISION
Tribunal:Dr L Bygrave, Member
Date:14 January 2022
Place:Sydney
The decision under review is set aside and, in substitution, the Tribunal decides that:
·ZSKL had 17% care of ‘A’ and MDJL had 83% care of ‘A’ until 14 February 2012.
·MDJL had 100% care of ‘A’ from 15 February 2012. MDJL notified the Respondent about this change in the care of ‘A’ on 2 December 2019.
·Pursuant to section 54B of the Child Support (Assessment) Act 1989 (Cth), the date of effect of the new care percentage – in which ZSKL has 0% care of ‘A’ and MDJL has 100% care of ‘A’ – is 3 December 2019.
................................[SGD]......................................
Dr L Bygrave, 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 (Cth).
CATCHWORDS
CHILD SUPPORT – percentage of care – whether existing care percentage arrangement determination should be revoked – actual care – date of effect of any new determination –– decision under review set aside and substituted
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) ss 49, 51, 54F, 54G
Child Support (Registration and Collection) Act 1988 (Cth)
Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth) sch 1
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179
SECONDARY MATERIALS
Child Support Guide, Department of Social Services, Version 4.59 released 8 November 2021.
REASONS FOR DECISION
Dr L Bygrave, Member
14 January 2022
INTRODUCTION
The applicant, ZSKL, and the other party, MDJL, are the separated parents of ‘A’. This matter relates to the respective percentages of care that ZSKL and MDJL have for ‘A’.
On 17 March 2021, ZSKL applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision made by the Social Services and Child Support Division (AAT1) of the Tribunal on 24 February 2021. The AAT1 decision affirmed a determination by the Child Support Agency that MDJL had 100% care of ‘A’ from 20 May 2011, effective from 20 May 2011 for ZSKL and from 2 December 2019 for MDJL.
The matter was heard by the Tribunal in Sydney on 11 November 2021. ZSKL was represented; he attended the hearing and provided oral evidence by videoconference. MDJL attended the hearing by teleconference but declined to give oral evidence and instead stated that she relied on the documentary evidence filed with the Tribunal.
RELEVANT LEGISLATION
The legislation relevant to this matter is the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth). Relevant government policy is also set out in the Child Support Guide (the Guide), which should be considered unless there are cogent reasons not to do so.[1]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179.
Part 5 of the Assessment Act provides for the administrative assessment of child support. Relevant to this matter, Division 4 of Part 5 of the Assessment Act sets out percentage of care for a child: subdivision B provides determination of percentage of care and subdivision C outlines provisions relevant to the revocation of an existing care percentage.
CONSIDERATION
The issues for determination are whether the existing care percentage determination should be revoked and, if so:
·the date the revocation should take effect;
·the respective percentages of care that should be determined for ZSKL and MDJL; and
·the date the new percentages of care should take effect.
Evidence
The following chronology of relevant events is set out in the documentary evidence:
·On 29 October 2003, a child support case was registered in relation to ‘A’ who was then aged approximately 17 months old.[2]
[2] Exhibit T-T50, page 293.
·On 17 December 2003, orders were made by consent in the Local Court under the Family Law Act 1975 (Cth) regarding the care arrangements of ‘A’ by MDJL and ZSKL (the Court orders).[3]
[3] Exhibit T-T37, pages 241-244.
·Effective from 20 October 2009, the care percentages used for the assessment of child support reflected that ZSKL provided 17% of care for ‘A’ and MDJL provided 83% of care for ‘A’ (the existing care percentage determination).[4]
[4] Exhibit T-T50, page 295.
·On 13 November 2018, MDJL advised the Child Support Agency that ZSKL’s care nights had ‘fallen below 52 nights’ but she ‘did not want to lodge a change in care claim’.[5]
[5] Exhibit R1.
·On 18 September 2019, MDJL advised the Child Support Agency that she had had 100% care of ‘A’ since he was 10 years old (in 2012); however, she did not wish to ‘change’ the care but ‘wanted to think about it’.[6]
[6] Exhibit R1.
·On 2 December 2019, MDJL notified the Child Support Agency that there had been a change in the levels of ‘actual care’ of ‘A’ and she had provided 100% care of ‘A’ from 4 November 2019.[7]
[7] Exhibit T-T8, page 124.
·On 21 December 2019 and 17 January 2020, ZSKL advised the Child Support Agency that he was ‘still following’ the ‘current Court order’.[8]
[8] Exhibits T-T11 and T-13.
·On 29 January 2020, MDJL informed the Child Support Agency that:
oa Court order was made ‘17 years ago’ that ZSKL had care of ‘A’ every second weekend and half of the school holidays;
o‘A’ had not had ‘overnight care’ with ZSKL since he was nine years old (approximately 2011); and
oneither she nor ZSKL had sought to have the care resume as per the Court order.[9]
·On 20 April 2020, the Child Support Agency notified ZSKL and MDJL in writing that, on the basis of updated information received, new care percentages were determined to reflect that from 20 May 2011, ZSKL had 0% care for ‘A’ and MDJL had 100% care for ‘A’.[10]
·On 6 May 2020, ZSKL informed the Child Support Agency that he objected to the decision made on 20 April 2020.[11]
·On 13 October 2020, an objections officer at the Child Support Agency disallowed ZSKL’s objection to the decision dated 20 April 2020.[12]
·On 24 February 2021, the AAT1 affirmed the decision made by the objections officer at the Child Support Agency on 13 October 2020.[13]
[9] Exhibit T-T14, page 136.
[10] Exhibits T-T25 to T-27, pages 153-219.
[11] Exhibit T-T28.
[12] Exhibit T-T49.
[13] Exhibit T-T2.
Evidence – care arrangements for ‘A’ up to May 2011
The evidence of ZSKL and MDJL regarding the care arrangements for ‘A’ up to May 2011 is reasonably consistent; this is that, as per the Court order made on 17 December 2003, ZSKL had 17% of care for ‘A’ (65 nights per year) and MDJL had 83% of care for ‘A’ (300 nights per year).[14] I caveat this statement with ‘reasonably’, noting there is correspondence from lawyers representing ZSKL and MDJL dated between November 2004 and January 2011 that was filed with the Tribunal and shows both parents variously disputing whether the other party was adhering to the Court order care arrangements in relation to ‘A’. The views contained in these letters can be broadly summarised as:
·from the perspective of ZSKL, that his access to care for ‘A’ was withheld or made difficult by MDJL; and
·from the perspective of MDJL, that ZSKL was not consistently complying with the care arrangements as set out in the Court order.
[14] Exhibits T-T37, pages 241-244 and T-T8, page 124.
I note the issue of compliance with the Court order prior to 2011 was the subject of extensive oral and documentary evidence by ZSKL, although it has minimal relevance to the issues I must determine. Perhaps most notably, this evidence demonstrates the level of protracted animosity between the parents of ‘A’.
Evidence of MDJL – care arrangements of ‘A’ from May 2011 to the present
The evidence of MDJL is that ‘A’ has not stayed overnight with ZSKL since he was nine years old.[15] Based on this information and having reference to the date of ‘A’’s ninth birthday, the Child Support Agency (affirmed by the AAT1) determined that MDJL had 100% care of ‘A’ from 20 May 2011.[16]
[15] Exhibit T-T14, page 136.
[16] Exhibits T-T49 and T-T2.
Documentary evidence filed by MDJL to support her actual care of ‘A’ included:
·A handwritten statement made on 27 January 2020 and a statutory declaration dated 16 August 2021 by MDJL’s mother that stated:
[MDJL] and [‘A’] lived at my residence throughout all of [‘A’] school years… [ZSKL] has not had any care of [‘A’] since he was approximately nine years of age and was in primary school.
[MDJL] has paid for all [‘A’’s] living expenses including health cover, medical, sporting activities, education and recreation.
I have attended most of [‘A’’s] school and sporting events. To the best of my knowledge, [ZSKL] was never present.[17]
·A letter from a general practitioner dated 24 June 2020, that stated ‘A’ had reported to him that ‘he has not seen his father since primary school’.[18]
·A statutory declaration from a school friend of MDJL dated 17 August 2021 that stated ‘A’ has had ‘no contact with his father, [ZSKL] for at least 9 years’.[19]
[17] Exhibit T-T18, page 145 and Exhibit OP1, page 10.
[18] Exhibit T-T39, page 271.
[19] Exhibit OP1, page 8.
Although MDJL declined to give evidence at the hearing, she asked several witnesses to provide oral evidence. These witnesses mostly affirmed their written statements. Notably, however, the school friend of MDJL gave credible oral evidence to the Tribunal in which she pinpointed that MDJL had had 100% care of ‘A’ since early 2012, by reference to her own pregnancy in 2012–2013.
Evidence of ZSKL – care arrangements of ‘A’ from May 2011 to the present
The evidence of ZSKL is that he continued to provide care for ‘A’ as per the Court order made on 17 December 2003 after 20 May 2011.
ZSKL provided documents to support his care of ‘A’ after 20 May 2011 that included:
·A letter written by ZSKL on 28 June 2020 that set out his access rights as per the Court order dated 17 December 2003; and noted ‘A’’s attendance at events held by ZSKL’s (current) family-in-law including regular Sunday family lunches, the 40th wedding anniversary celebration of ZSKL’s parents-in-law on 2 October 2011, the 2nd birthday party of ‘A’’s stepbrother on 4 November 2011, and a family holiday in January 2012.[20]
·A statutory declaration by ZSKL’s current wife dated 26 June 2020, and statements from ZSKL’s current mother-in-law, father-in-law and brother-in-law dated 28 June 2020, confirming that ‘A’ was present at events held by ZSKL’s family-in-law up to and including a holiday in January 2012.[21]
·Photos of ‘A’ dated 4 November 2011 and 12 January 2012, and a Facebook post made by ZSKL’s current wife on 28 February 2012 that included a photo of ‘A’ and his stepbrother.[22]
[20] Exhibit T-T37, pages 237-238.
[21] Exhibit T-T37, pages 254-257.
[22] Exhibit T-T37, page 260-262.
ZSKL also filed documents with the Tribunal on 17 August 2021, which included:
·Excerpts from a ‘communication book’ completed by ZSKL and MDJL between November 2007 and December 2011 regarding the care of ‘A’. This communication book relevantly included the following entries:
o14 December 2011: MDJL wrote to ZSKL, ‘…the last day of school term is Tuesday 20th December 2011 and the first day of school term is Friday 27th January 2012. Your holiday period is from 9am Tuesday 10th January 2012 to 5pm Thursday 26th January 2012..’.
o14 December 2011: ZSKL wrote to MDJL, ‘‘A’ will be staying at [insert place] during the holidays’.[23]
·Entries from ZSKL’s 2012 diary, including:
o10 January 2012: ‘Picked [‘A’] up at 9.00…’[24]
o15 February 2012: ‘Went to get [‘A’] at 4:30 with [father-in-law]… [‘A’] came to door, was distant… again stated that he didn’t want to come but didn’t know why… rang 000 again…’[25]
o17 February 2012: ‘went to pick up [‘A’] as per court orders with [father-in-law] arrived at 4:59pm… knocked on door no answer… rang 000 @ approx. 5.27pm rang police as I was fearful of [‘A’’s] wellbeing and whereabouts… Police came at 7:30pm. Said he looked ok and was apparently at a baseball practice? Told to take her to court etc’.[26]
[23] Exhibit A1, pages 99-100.
[24] Exhibit A1, page 105.
[25] Exhibit A1, page 107.
[26] Exhibit A1, page 108.
ZSKL and his current wife, mother-in-law, father-in-law and brother-in-law provided oral evidence at the hearing. ZSKL was unable to tell the Tribunal when ‘A’ last stayed with him but said that he repeatedly attended the house where MDJL and ‘A’ were living to collect ‘A’ as per the Court orders and ‘A’ refused to go with him. He, his current wife and the members of his family-in-law were unable to identify either the dates or period of time when this occurred, but said that ZSKL continued to provide care for ‘A’ after May 2011 and referred to the 40th wedding anniversary of ZSKL’s parents-in-law in October 2011 and a family holiday in January 2012.
By reference to the entries in the communication book and his 2012 diary, ZSKL accepted that the most recent period ‘A’ spent in his care was in January 2012. ZSKL also said that he could not recall whether, after January 2012, he informed the Child Support Agency or sought legal advice about MDJL’s non-compliance with the Court order or otherwise sought to ensure compliance with Court order.
Should the existing care percentage determination be revoked?
I now turn to considering whether the existing care percentage determination should be revoked. This requires consideration as to whether there was a change in the care of ‘A’ and, if so, the date this occurred.
‘Care’ is not defined in the Assessment Act, but the meaning of ‘care’ and ‘percentage of care’ are explained in the Guide. In relation to determining whether care exists, the Guide states:
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:
·To what extent the person has control of the child, including having overall responsibility for the child and making:
o major decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities, and
o arrangements 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.[27]
[27] Child Support Guide, part 2.2.1, released 8 November 2021.
The Guide also explains that ‘percentage of care’ is a ‘child support assessment formula’ that takes into account ‘the amount of time a parent…is responsible for providing care for the child’.[28] The Guide further states:
A person’s percentage of care for a child will generally be determined according to the actual care that they have of the child. The actual care may be reflected in care arrangements agreed upon by the parents, including non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child’s care…[29]
[28] Child Support Guide, part 2.2.1, released 8 November 2021.
[29] Child Support Guide, part 2.2.1, released 8 November 2021.
Based on the available evidence, I make the following findings of fact about the care of ‘A’:
·Although both ZSKL and MDJL provided witnesses to support various periods of care of ‘A’ and adherence to the Court order, the objective and contemporaneous written evidence in the communication book in December 2011 and the diary entries of ZSKL in January 2012 and February 2012 is to be preferred.
·There is no evidence ‘A’ was in the care of ZSKL after 26 January 2012.
·MDJL has provided 100% care for ‘A’ from 27 January 2012, including having responsibility and making decisions about ‘A’’s education and medical care, and meeting his physical, financial and emotional needs.
·Until 14 February 2012, the care arrangements of ‘A’ were consistent with the existing care percentage determination: ZSKL had 17% care of ‘A’ and MDJL had 83% care of ‘A’. These care arrangements comprised an established pattern of care.
·From 15 February 2012, the care arrangements of ‘A’ as set out in the Court orders made on 17 December 2003 have not been followed by either ZSKL or MDJL.
·A change in the actual care of ‘A’ occurred from 15 February 2012 and subsequent to this date, ZSKL had 0% care of ‘A’ and MDJL had 100% care of ‘A’.
·I give no weight to the Facebook post made by ZSKL’s current wife on 28 February 2012 as this provides no information about the actual date the photo was taken and no relevant information about the care provided by ZSKL to ‘A’.
·ZSKL did not inform the Child Support Agency about any change to the care arrangements of ‘A’; indeed, up to 17 January 2020, ZSKL continued to tell the Child Support Agency that he was following the Court order made on 17 December 2003.
·MDJL did not inform the Child Support Agency about any change to the actual care of ‘A’ until 2 December 2019. I am satisfied the file notes made by the Child Support Agency dated 13 November 2018 and 18 September 2019 are obstruse and ambiguous, and do not constitute MDJL notifying the Agency about a change in the actual care or pattern of care for ‘A’.
The revocation of a care percentage determination is outlined in Subdivision C of Division 4 of Part 5 of the Assessment Act; notably, the operation of the statute is that section 54F applies if section 54G does not apply, and section 54H applies if sections 54F and 54G do not apply.
Consequently, I first consider whether section 54G of the Assessment Act applies; this section provides that a determination must be revoked if there is less than regular care, which is where a ‘responsible person’ (defined as either a parent or non-parent carer of a child)[30] has less than 14% care of the child.
[30] See subsection 5(1) of the Assessment Act.
Paragraph 54G(1)(d) of the Assessment Act requires ‘the other responsible person’ to notify the Child Support Agency ‘within a period that…is reasonable in the circumstances’ that a parent has had no care or a pattern of care that is less than regular care of the child.
While the representative of ZSKL submitted section 54G of the Assessment Act should apply in these circumstances, I note that the Guide defines a ‘reasonable period’ as notifying the Child Support Agency ‘within 28 days’ of the parent ceasing ‘their established pattern of at least regular care’.[31]
[31] Child Support Guide, part 2.2.3, released 8 November 2021.
As there is no evidence that either ZSKL or MDJL notified the Child Support Agency until 2 December 2019 that the established pattern of care ceased for ZSKL in February 2012 – a period that exceeds seven years – I am satisfied this section does not apply to this matter.
I next consider the application of section 54F of the Assessment Act, which stipulates that the existing care percentage determination must be revoked if ‘the care of the child that is actually taking place does not correspond’ with the existing percentage of care determination.
As set out in my findings of fact at paragraph 21 above, I am satisfied that the actual care of ‘A’ did not correspond with the existing percentage of care determination from 15 February 2012 as, from this date, MDJL had 100% care of ‘A’ and ZSKL had 0% care of ‘A’. Therefore, pursuant to section 54F of the Assessment Act, I must revoke the existing care percentage determination.
Section 49 of the Assessment Act relevantly provides for the determination of percentage of care where a ‘responsible person’ has no pattern of care for a child. Subsections 49(2) and (3) of the Assessment Act state that the percentage of care must be 0% ‘unless section 51 applies in relation to the responsible person’.
Section 51 of the Assessment Act sets out provisions for the ‘percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with’: a notation to subsection 51(1) states, ‘This section does not apply in certain circumstances: see section 53.’ [emphasis added]
Most of the relevant provisions in the Assessment Act were amended in 2018 by Schedule 1 to the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth). These amendments commenced variously on 23 May 2018 and 1 July 2018.
As I am satisfied that a change in the care of ‘A’ occurred prior to 1 July 2018, the pre-amendment version of section 53 applies. Therefore, section 51 of the Amendment Act does not apply to this matter because the pre-amendment subsections 53(2)-(4) provided that section 51 will not apply where, in effect, a change in care was notified more than 14 weeks after the change of care day (or more than 26 weeks where special circumstances exist). I have already set out in paragraph 26 above that there is no evidence either ZSKL or MDJL notified the Child Support Agency until 2 December 2019 that there was a change in care of ‘A’ in February 2012. As this period exceeds seven years, I am satisfied that section 51 does not apply to this matter.
Paragraph 54F(2)(c) of the Assessment Act sets out that the revocation of the determination takes effect at the end of the day on which the Child Support Agency is notified of the change in care. Consistent with my findings of fact in paragraph 21, I am satisfied that MDJL notified the Child Support Agency on 2 December 2019 and this is the date of revocation of the existing determination.
Section 54B of the Assessment Act dictates the date from which any new care percentage determination made by the Tribunal must take effect: subparagraph 54B(2)(c)(ii) states the date of effect will be the day that begins immediately after the revocation of the existing determination. I therefore find – in the circumstances of this matter in which the pre-amendment version of the Assessment Act applies – the date of effect of the new care percentage is 3 December 2019, which is the day immediately after the existing determination was revoked on 2 December 2019.
I note for the clarity of the parties that the decision affirmed by the AAT1 – that MDJL had 100% care of ‘A’ from 20 May 2011, effective from 20 May 2011 for ZSKL and from 2 December 2019 for MDJL – relied on subsection 54F(3) of the Assessment Act. I have already stated that, as the change in the care of ‘A’ occurred prior to 1 July 2018, I must consider the pre-amendment version of section 54F. Notably, subsection 54F(3) did not exist in the pre-amendment version of the Assessment Act and so cannot apply to the determination of this application.
DECISION
The decision under review is set aside and, in substitution, the Tribunal decides that:
·ZSKL had 17% care of ‘A’ and MDJL had 83% care of ‘A’ until 14 February 2012.
·MDJL had 100% care of ‘A’ from 15 February 2012. MDJL notified the Respondent about this change in the care of ‘A’ on 2 December 2019.
·Pursuant to section 54B of the Child Support (Assessment) Act 1989 (Cth), the date of effect of the new care percentage – in which ZSKL has 0% care of ‘A’ and MDJL has 100% care of ‘A’ – is 3 December 2019.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
...............................[SGD].....................................
Associate
Dated: 14 January 2022
Date(s) of hearing: 11 November 2021 Applicant: In person Solicitors for the Respondent: Mr Karwan Eskerie, Sparke Helmore Lawyers Other Party: In person
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