BDPD and Child Support Registrar and HVGS

[2015] AATA 376

[2015] AATA 376

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5499
BDPD
APPLICANT
And	Child Support Registrar
RESPONDENT
And	HVGS
OTHER PARTY

DECISION

Tribunal	Dr James Popple, Senior Member
Date	29 May 2015
Place	Canberra

1.      The decision of the Social Security Appeals Tribunal on 25 September 2014 is set aside and, in substitution, the following decision is made:

(a)     The Child Support Registrar’s determination on 15 April 2014 is set aside.

(b) Under s 54F(1) of the Child Support (Assessment) Act 1989, the Child Support Registrar’s determination that the other party’s percentage of care for her daughter was 100% is revoked with effect from 11 July 2014.

(c) It is determined, under s 50(2) of the of the Child Support (Assessment) Act 1989, that the other party’s percentage of care for her daughter was 25% from 11 July 2014 to the day before the daughter’s eighteenth birthday.

2. Publication of this decision and these reasons for decision is approved under s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988.

...........................[sgd].............................................

James Popple, Senior Member

CATCHWORDS

SOCIAL SECURITY — Child support — determination of percentage of care — whether mother had full care of daughter — effect of nights away from home on percentage of care — financial independence of child — decision set aside and substituted.

LEGISLATION

Child Support (Assessment) Act 1989, ss 50, 54A, 54E, 54F, 54G, 55C

CASES

P v Child Support Registrar (2013) 138 ALD 563

Polec v Staker (2011) 253 FLR 339

SECONDARY MATERIALS

Department of Social Services, Child Support Guide (version 4.08, 2014)

REASONS FOR DECISION

James Popple, Senior Member

29 May 2015

Summary

1. The Child Support Registrar (the Registrar) decided that the other party’s percentage of care for her daughter during the relevant period (from 17 March 2014 until her daughter turned 18) was zero.  This meant that the applicant did not have to pay child support to the other party.  The Social Security Appeals Tribunal (the SSAT) decided that there should have been no change to the other party’s percentage of care from 17 March—that it should have stayed at 100%.  This meant that the applicant had to pay child support.

2. I have decided that the other party’s percentage of care for her daughter was:

   ·90% from 17 March to 10 July 2014; and

   ·25% from 11 July 2014 until her daughter turned 18.

   (The daughter was granted Youth Allowance with effect from 11 July 2014.)

3. The Child Support (Assessment) Act 1989 (the CSA Act) provides that a determination of a person’s percentage of care cannot be revoked unless the determination that replaces it results in a different cost percentage.  Changing a person’s percentage of care from 100% to 90% does not result in a different cost percentage, so I cannot revoke the determination in relation to the first part of the relevant period.  This means that the effect of my decision is that the other party’s percentage of care for her daughter was:

   ·unchanged (100%) from 17 March to 10 July 2014; and

   ·25% from 11 July 2014 until her daughter turned 18.

   Background

4. “BDPD” (the applicant—the father) and “HVGS” (the other party—the mother) are parents of a child born in 1996 (the daughter).  The Registrar[1] collected child support from the father from 1999.  On 17 March 2014, the father contacted the Registrar.  He told the Registrar that the daughter had been living with his parents since 2013, that she was still at school and that she was working full time.  He said that he was giving the daughter money and that his parents were also supporting her.  On 20 March, the Registrar contacted the mother.  She said that the daughter was in her care.  She said that she and the daughter lived several hours from the daughter’s school where the daughter also had a part-time job.  She said that the daughter would stay with the father’s parents or with friends on nights that she worked.

   [1]     I have used “Registrar” in these reasons to refer to both the Child Support Registrar and the Child Support Agency.  The two are separate entities, but that is not relevant to this review.  The Child Support Agency is not a separate agency, but is part of the Department of Human Services.

5. At the time, for child support purposes, the daughter was 100% in the care of the mother.  On 15 April 2014, having received information from the father and the mother, the Registrar made a decision that the daughter was in the care of both parents for zero nights per year—that neither of them had care of the daughter.  As a result, the father was not required to pay child support from 17 March 2014 (the date when he contacted the Registrar).

6. On 5 May 2014, the mother objected to the Registrar’s decision.  The Registrar made further inquiries, and received further information.  On 17 July 2014, the Registrar disallowed the mother’s objection.

7. On 29 July 2014, the mother applied to the SSAT for review of that decision.  On 25 September 2014, the SSAT set aside the Registrar’s decision and substituted its decision not to change the mother’s percentage of care from 17 March 2014.  As a result, the father was required to pay child support from that date.

8. On 23 October 2014, the father applied to the Tribunal, under s 103VA(1) of the Child Support (Registration and Collection) Act 1988 and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of that decision.

   Decision under review

9. The decision under review is the SSAT’s decision on 25 September 2014 not to change the mother’s percentage of care for the daughter from 17 March 2014.

   Issue

10. The issue in this review is the percentage of care of the daughter that the mother had during the relevant period.  That depends on the actual care of the daughter that the mother had.  The actual care can be worked out based on the number of nights that the daughter was in the mother’s care or (if that methodology is not appropriate) based on a different methodology.

11. The father does not object to the determination of his percentage of care for the daughter as zero.  He objects to the determination of the mother’s percentage of care as 100%.

    Legislative framework

12. The CSA Act provides for the calculation of the percentage of care for a child. That percentage of care affects the calculation of the parents’ child support percentages and, therefore, the amount of child support payable.

13. Section 50(2) of the CSA Act provides that the Registrar must determine a responsible person’s percentage of care for a child during “the care period”, which is the period that the Registrar considers to be appropriate having regard to all the circumstances (s 50(1)). Section 50(3) provides that that percentage must correspond 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. Section 54F provides that the Registrar must revoke a determination of a responsible person’s percentage of care in certain circumstances.[2]

    [2] See [36]–[37] below.

14. Section 54A(1) of the CSA Act provides:

    54A  Working out actual care, and extent of care, of a child

    (1)  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.

15. In P v Child Support Registrar,[3] the Federal Court concluded that “may” in s 54A has its ordinary meaning. After considering the explanatory memorandum to the legislation that inserted s 54A into the CSA Act, the Court said:

    This explanation makes it fairly clear that the intention behind s 54A was to provide guidance in determining actual care, but that if the methodology in s 54A, which focuses on nights in care, is not appropriate in the particular circumstances of a case to work out actual care, it is open to the registrar to employ a different methodology.

    That is plainly the position here. When [the child] was at boarding school he was not staying overnight with either parent. It is difficult to see how s 54A could provide any guidance or assistance in determining actual care in these circumstances.[4]

    [3] (2013) 138 ALD 563.

    [4] (2013) 138 ALD 563 at [62]–[63] per Wigney J.

16. The same is true in this review. The dispute between the father and the mother is about nights when the daughter was not staying overnight with either parent. Section 54A does not provide any guidance or assistance in working out the actual care in this review.

    How can actual care be worked out?

17. I must look beyond s 54A to determine the actual care of the daughter that the mother had. That means considering facts other than the number of nights that the daughter was in the mother’s care during the care period.

18. In Polec v Staker,[5] the Federal Magistrates Court said that, in determining actual care, the following questions should be considered:

    a)To what extent does the person meet 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?

    b)To what extent does the person make arrangements for others to meet the needs of the child?

    c)To what extent does the person pay for the costs of meeting the needs of the child?

    d)To what extent does the person otherwise provide financial support for the child?

    e)To what extent does the child provide for his or her own needs or have those needs met from another source?

    f)To what extent is the child financially independent or financially supported from another source?[6]

    [5] (2011) 253 FLR 339.

    [6] (2011) 253 FLR 339 at [56] per Hughes FM.

19. The Federal Court in P explained that this list is:

    … no more than … a workable guide to assist decision-makers in determining the extent of care.  It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand.  “Care” is not defined in the Act.  The extent of care that is provided is a question of fact.  It will depend on the facts and circumstances of the particular case.  The meaning of care in any given case should not be constrained by a set list of questions or considerations.  …

    Nor is Polec authority for the proposition, as [the father] contends, that in all cases where a child is not residing with his or her parents, the financial arrangements for meeting the child’s needs are a “paramount consideration”.  Much will depend on the particular facts and circumstances of the matter at hand.  The weight to be given to financial arrangements will differ in each case.  In some cases financial considerations will be paramount, in some cases they may not.[7]

    [7] (2013) 138 ALD 563 at [107]–[108] per Wigney J.

20. Section 54E of the CSA Act provides that, in determining the percentage of care, the Registrar must have regard to any guidelines in force under s 35N(1) of the A New Tax System (Family Assistance) Act 1999.  The Registrar referred me to the Child Support Guide (the Guide), which is available on the web site of the Department of Social Services.[8] It is not clear whether the Guide is a document to which s 54E of the CSA Act applies. However, it is a statement of government policy, and I should have regard to it in coming to my decision.[9]

    [8]     See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69 per Bowen CJ and Deane J. I note that the Federal Court in P said that an earlier version of the Guide was “of limited, if any, real assistance in construing the Act and s 54A specifically”, and was, in some places, “unhelpful”. Nonetheless, the Court said that no error of law was revealed by the Tribunal’s use of the Guide to assist in the construction of ss 50 and 54A in that case. See (2013) 138 ALD 563 at [65]–[67] per Wigney J.

21. The Guide, in its section on “Basics of care”, says:

    Determining whether care exists

    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.

    ·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.

    Older children living away from home

    Generally, older children who live independently and separately from their parents or carers provide for many of their own needs.  This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues.  Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

    Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child.  The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

    While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant.  In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child.  For example, decisions relating to the child’s health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.[10]

    [10]    Guide, section 2.2.1, relevant period

22. In this review, the relevant period—the care period—is from the day when the father first contacted the Registrar about this matter until the day before the daughter turned 18, and child support was no longer payable.  That means that the care period is from 17 March 2014 until a day in the last quarter of 2014, a period of between 6½ and 9½ months.  (I do not specify the end date precisely, so as to protect the anonymity of the daughter.  I have been deliberately imprecise, below, about some other dates, for the same reason.)

    Working out actual care in this review

23. The father and the mother each provided evidence before the hearing.  Each of them gave evidence at the hearing.  The daughter also gave evidence at the hearing.  The mother’s evidence is consistent with that of the daughter.  The father’s evidence is broadly consistent with the mother’s.  To the extent that their evidence is inconsistent, I prefer the evidence of the mother.  This does not mean that I disbelieve any of the father’s evidence.  During the care period, the father had limited contact with the daughter; the mother was in regular contact.  I think that the differences between the father’s evidence and the mother’s arise from the father having made some assumptions about his daughter’s circumstances which may have been reasonable assumptions to make on the basis of what he knew, but which were incorrect.

24. Having considered this evidence, and the evidence provided by the Registrar, I make the findings set out in [25]–[31] below.

25. The daughter lived with her mother, and went to a nearby high school.  She was not happy at that school, and changed schools before starting year 11 in 2013.  Her new school was a 70–90 minute drive from her mother’s home.  It was a drive of more than 20 minutes from her mother’s home to the nearest bus stop from which the daughter could catch a bus to and from her new school.  Towards the end of year 11, the daughter obtained a driver’s licence, and was able to drive herself to school.  Sometimes, the daughter would stay the night with friends or with relatives (including her father’s parents) near the school, rather than drive back to her mother’s home after school.

26. About halfway through her year 12 studies, the daughter started working part-time at a place near her school.  She would work one or two nights a week.  On those nights, she would sometimes stay with friends or relatives near her school and her workplace.

27. There is no precise evidence about how many nights of a given week the daughter would spend with her mother, and how many she would spend with friends or relatives near her school.  It would appear that, until September 2014, she spent about half of the evenings of school weeks with her mother at her mother’s home.

28. In September 2014, her mother arranged to rent a flat near the school in the daughter’s name.  The mother explained that she wanted the daughter to concentrate on her preparation for the Higher School Certificate examinations at the end of year 12, and not have to drive long distances in the evenings.  From September 2014 until the last of her exams, the daughter spent most of the evenings of school weeks in the unit, though she would sometimes stay with friends near her school.  When the last of her exams was over, the daughter returned to her mother’s home.

29. The daughter had earlier applied to Centrelink for Youth Allowance.  The mother says that she and the daughter made this application because the father was no longer paying child support.  On 2 October 2014, the daughter was granted Youth Allowance with effect from 11 July 2014.  The level of Youth Allowance paid was the basic rate for a person living away from home.  Centrelink also paid the daughter rent assistance and energy supplements.

30. During the care period, the father gave the daughter some money and the daughter earned some money herself through casual part-time employment.  She was also assisted by those friends and relatives (including her father’s parents) with whom she stayed on some nights.  The remainder of the costs of meeting the daughter’s needs were met by the mother.

31. Until the daughter moved into the unit, and to a lesser extent afterwards, the mother remained involved in major decisions about the daughter’s life.  This would appear to have been the case even on those nights when the daughter did not return to the mother’s home.  They were in regular telephone contact and, although the daughter was clearly demonstrating increasing levels of independence, the mother was still involved in decisions regarding the daughter’s accommodation, health and schooling, amongst other things.

32. It is difficult to be precise about the level of the daughter’s independence in the months leading up to her eighteenth birthday (in the last quarter of 2014).  But I think that two events did mark a significant change: her grant of Youth Allowance (from July) and her moving into the flat (in September).

1. The significance of her moving into the flat on her own was less than it might have been had she not previously stayed overnight with various friends and relatives: it was by no means the first time that she was spending nights away from her mother’s house during the care period.

2. I think that the daughter being granted Youth Allowance is of greater significance.  The mother says that, even when the daughter started receiving Youth Allowance, she (the mother) was still paying for most of her daughter’s needs because the Youth Allowance payments only covered the rent of the unit.  However, I note that the daughter was paid Youth Allowance with effect from about two months before she moved into the unit.  I note, also, that the combined Youth Allowance, rent assistance and energy supplements must have reduced significantly the cost, to the mother, of meeting the daughter’s needs.

3. Taking all of this into account, I think that the following percentages of care correspond with the actual care that the mother had for the daughter:

   ·90% from the beginning of the care period until the day before the daughter was granted Youth Allowance (that is, from 17 March to 10 July 2014); and

   ·25% from the day that the daughter was granted Youth Allowance until the end of the care period (that is, from 11 July 2014 until she turned 18).

   Revoking the Registrar’s determination

4. Section 54F(1) of the CSA Act provides that the Registrar must revoke a determination of a responsible person’s percentage of care if the Registrar becomes aware that the care of the child that is actually taking place does not correspond with that percentage of care, and the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine another percentage of care.[11] A table in s 55C gives the cost percentage for a given percentage of care. Relevantly, the table gives:

   ·a cost percentage of 100% for a percentage of care of more than 86% to 100%; and

   ·a cost percentage of 24% for a percentage of care of 14% to less than 35%.

   [11] Another prerequisite (in s 54F(1)(e)) is that s 54G does not apply. Section 54G does not apply in this review because the mother’s pattern of care was never less than “regular care” of the daughter—that is, the mother’s percentage of care was never less than 14% (see ss 5(2) and 54G(1)(b)).

5. The SSAT decided not to change the mother’s percentage of care for the daughter from 17 March 2014. Her percentage of care at that time was 100%. I have decided that her percentage of care from that time to 10 July 2014 was 90%. The cost percentage is the same (100%) for each of those percentages of care. So, I cannot revoke the determination that her percentage of care was 100% from 17 March to 10 July. I have decided that her percentage of care from 11 July date was 25%, which results in a different cost percentage (24%). So, under s 54F, I must revoke the determination with effect from 11 July—what the CSA Act calls the “change of care day”.[12] I replace the revoked determination with my determination, under s 50(2), that the mother’s percentage of care was 25% during the period 11 July 2014 to the day before the daughter’s eighteenth birthday.

   [12] Section 5 of the CSA Act provides that the “change of care day for a responsible person for a child means … if a determination of the responsible person’s percentage of care for the child has been revoked under Subdivision C of Division 4 of Part 5 [which includes s 54F]—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”.

   Conclusion

6. During the care period, the mother’s percentage of care for her daughter was 90% until the daughter was granted Youth Allowance, and 25% from then on.  Changing the percentage of care from 100% to 90% would not result in a different cost percentage, so I cannot revoke the Registrar’s determination in relation to the period before the daughter was granted Youth Allowance.  However, I must revoke the determination in relation to the period from when the daughter was granted Youth Allowance, and replace it with a determination that the mother’s percentage of care was 25%.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

............................[sgd]............................................

Associate

Dated 29 May 2015

Date of hearing	4 May 2015
Date final submissions received	18 May 2015
Applicant	In person
Counsel for the Respondent	Ms Laura Weston
Solicitors for the Respondent	Legal Services Division Department of Human Services
Other Party	In person