CDNC and Child Support Registrar (Child support)

[2019] AATA 5543

CDNC and Child Support Registrar (Child support) [2019] AATA 5543 (20 December 2019)

Division:GENERAL DIVISION

File Number:          2019/3668

Re:CDNC

APPLICANT

AndChild Support Registrar

RESPONDENT

AndVKGD

OTHER PARTY

DECISION

Tribunal:Dr L Bygrave, Member

Date:20 December 2019

Place:Sydney

The decision under review is set aside and, in substitution, the Tribunal decides that the applicant’s percentage of care was 70% and the other party’s percentage of care was 30% from 19 April 2018.

..............................[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.

CATCHWORDS

SOCIAL SECURITY – child support – percentage of care – where parents separated under one roof – individual circumstances of the case and evidence available – where evidence that applicant provided majority of care during school terms – where unclear on the evidence the care provided by the parents on weekends – where care was other than equally shared – decision set aside and substituted

LEGISLATION

Child Support (Assessment) Act 1989 (Cth) ss 5, 35, 50
Child Support (Registration and Collection) Act 1988 (Cth)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179

SECONDARY MATERIALS

Child Support Guide

REASONS FOR DECISION

Dr L Bygrave, Member

20 December 2019

1. The applicant (CDNC) and the other party (VKGD) are the parents of ‘J’ (15 years old) and ‘A’ (nine years old).

2. CDNC and VKGD separated on 15 March 2018 and continued to live under the same roof. On 19 April 2018, CDNC applied to register a child support assessment with VKGD in respect of the care of their children. CDNC and VKGD provided supporting documentation and, on 24 August 2018, the Child Support Registrar (the Registrar) decided that care of the children was 70% to CDNC and 30% to VKGD (the original decision).

3. VKGD lodged an objection to the original decision on 24 September 2018, submitting that he and CDNC remain living under the same roof and provide equal care of their children. On 1 March 2019, the Registrar disallowed VKGD’s objection.

4. VKGD subsequently applied for review to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) and, on 4 June 2019, the SSCSD decided the care percentage in respect of the children was 50% to CDNC and 50% to VKGD from 15 March 2018 with effect from 19 April 2018.

5. CDNC applied to the General Division of the Tribunal for review.

6. The matter was heard in Sydney on 29 October 2019. CDNC and VKGD both appeared by telephone at the hearing. They each filed supporting documents and provided oral evidence to the Tribunal.

   ISSUE

7. The issue for determination by the Tribunal is the appropriate percentage of care that should be assigned to CDNC and VKGD in respect of their children from 19 April 2018.

   RELEVANT LEGISLATION

8. The legislation relevant to this application 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 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.

9. Part 5 of the Assessment Act provides for the administrative assessment of child support. Relevant to this matter, section 35 sets out a formula where neither parent has another child support assessment and only the parents provide care for the children; this formula requires each parent’s percentage of care to be decided.

10. Pursuant to section 50 of the Assessment Act, the Registrar must determine the percentage of care provided by a responsible person for the care of a child during a care period that corresponds with the actual care of the child that the responsible person has had, or is likely to have, during the care period. ‘Responsible person’ is defined in subsection 5(1) to mean a parent or non-parent carer.

11. ‘Care’ is not defined in the Assessment Act; however, the Guide provides the following guidance:

    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.[2]

    [2] See chapter 2.2.1.

12. The Guide also provides the following policy guidance regarding ‘percentage of care’ in situations where parents are separated but living under the same roof:

    Where parents are separated but living in the same house, the Registrar will determine each parent’s percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.[3]

    [3] See chapter 2.2.1.

13. A ‘care period’ is described in the Guide as ‘generally a 12-month period from the day on which the actual care of a child began or changed’.[4]

    EVIDENCE

    [4] See chapter 2.2.1.

    The evidence of CDNC

14. CDNC submitted detailed documentation to the Tribunal, which included her:

    ·household expenses from 15 March 2018 to 30 May 2018;

    ·mortgage and household expenses from 22 October 2018 to 2 July 2019;

    ·mortgage offset account statements from 16 March 2018 to 3 July 2019;

    ·council rates payments from 30 June 2018 to 30 May 2019;

    ·water rates payments from 2 May 2018 to 21 December 2018;

    ·statements dated 2 May 2018, 9 January 2019, 4 April 2019 and 6 May 2019 and statutory declaration dated 19 September 2019;

    ·email correspondence with VKGD; and

    ·daily and weekly routine in relation to caring for ‘J’ and ‘A’.

15. CNDC also provided statements dated 12 October 2018 and 8 May 2019 from the assisted school travel driver who drives ‘J’ to school; medical certificates for ‘A’; National Disability Insurance Scheme (NDIS) service delivery records for speech pathology provided to ‘J’ and home reading record sheets for ‘J’; and a statement from her brother dated 17 October 2018.

16. At the Tribunal hearing, CNDC described the daily care she provides for ‘J’ and ‘A’. CNDC explained that ‘J’ has autism and so requires additional care, and receives support through the NDIS for two hours care each Saturday and government assistance transport between his home and school on school days. She stated that she has always worked 25 hours per week, ‘school hours’, in order to care for ‘J’ and ‘A’ before and after school. CDNC noted routine was particularly important for ‘J’ because of his autism and so she ensured the children maintained a regular routine.

17. CNDC set out that the care she provided her children did not change after she and VKGD separated on 15 March 2018. She set out that VKGD usually left home to go to work at approximately 6:30am. She then woke up ‘J’, got his school clothes ready and sometimes assisted him with dressing/grooming. She prepared breakfast and school lunch before ‘J’ was collected by government assistance transport at approximately 7:40am. She then woke ‘A’ (if required), got his school clothes ready and prepared his breakfast and school lunch. She said she made the beds and tidied the house before driving ‘A’ to school on the way to her work. CNDC left work at 2:15pm to be home by the time ‘J’ arrived home by government assistance transport. She and ‘J’ then collected ‘A’ from school. She said that she prepared after school snacks for the children, prepared dinner, washed and hung out clothes, served dinner and cleaned the kitchen. After dinner, she assisted ‘J’ with homework and settled the children for bed at about 8:30pm. CNDC said that VKGD would arrive home around 5pm but may go to the gym or to his bedroom; since their separation, she said that there was no communication from VKGD about when he was arriving or leaving the home and he never assisted with getting the children to bed on a school night.

18. CNDC set out the weekend care of the children post-separation as follows. She said that as she and VKGD did not communicate, she was ‘automatically’ responsible for the children. She would prepare breakfast for ‘J’ and ‘A’, tidy the house, shop for groceries, and take ‘J’ to horse riding and ‘A’ to soccer games. She said that VKGD would take the children out for lunch on rare occasions.

19. At the Tribunal hearing, CNDC acknowledged that ‘J’’s behaviour changed in September 2018 and he began to spend more time with VKGD at home and they would go out together sometimes for meals. However, she said that ‘A’ did not spend time with his father.

20. CNDC provided comprehensive documentation and oral evidence about household expenses she paid for post-separation. The payment of the mortgage and utilities was a contentious issue between CNDC and VKGD that seems to have been heightened by costs associated with CNDC’s brother and niece also living in the family home. 

21. Notwithstanding the presence of CNDC’s brother and niece, CNDC provided documentation that showed from October 2018 to July 2019 she paid for groceries for her and the children, 100% of private health insurance for her and the children, 100% of housecleaner costs, 100% of costs associated with dental braces for ‘J’, approximately 58% of council rates and 67% of water bills, 100% of Telstra bill from November 2018 to July 2019, 100% house and contents insurance, and 100% of mortgage payments from November 2018 to March 2019 and 50% of mortgage payments from April 2019 to July 2019. She also gave money to ‘J’’s carer for activities and food on Saturdays, and paid for the children’s school fees, haircuts and clothes. CDNC said she received board payments of $100 per week from her brother.

22. CDNC said that post-separation, VKGD would cook for the children approximately once a month but use groceries that she had purchased. She said that VKGD has not bought any clothes for ‘J’ or ‘A’.

23. Based on both the time spent with the children and her financial expenses, CDNC contended that she had 70% care of ‘J’ and ‘A’ from 15 March 2018.

    The evidence of VKGD

24. VKGD contended that he had provided 50% care to both ‘J’ and ‘A’ since he and CDNC separated on 15 March 2018 but remained living under the same roof. In addition to the documents filed by CDNC, he submitted detailed documentation to the Tribunal including:

    ·time log of his care of ‘J’ and ‘A’ dating from 24 June 2018 to 5 August 2019;

    ·a statement of financial and care responsibilities as the father of ‘J’ and ‘A’ (undated);

    ·email correspondence and text messages with CDNC;

    ·printout of leave dates;

    ·statements from three friends of VKGD dated 8 May 2019 and 13 May 2019; and

    ·a letter from clinical psychologist dated 29 July 2019 stating that VKGD had attended appointments on four occasions and CDNC had attended appointments on three occasions.

25. At the Tribunal hearing, VKGD said his work hours were flexible but he usually started work about 7:30am and returned home at 3:30pm. He said that he sometimes assisted with the children in the mornings but acknowledged that it was predominantly CDNC who prepared breakfast and packed the school lunches for ‘J’ and ‘A’. VKGD also said that he was usually home when ‘J’ arrived home from school by government assistance transport. He said that he assisted with preparing afternoon tea, cooked steak for ‘A’’s dinner once or twice a week, took ‘J’ out for dinner two to three nights a week, assisted ‘J’ with homework two to three times a week and put the children to bed. VKGD also said that he would go to the gym three times a week on the way home and on these occasions would arrive home about 6pm.

26. VKGD told the Tribunal that he would cook bacon and eggs for the children on the weekends and take ‘A’ to soccer while CDNC took ‘J’ to horse riding. He said that he had taken leave from work when the children were unwell and during school holidays to look after ‘J’. He had attended appointments at the clinical psychologist with ‘J’.

27. VKGD provided extensive oral evidence to the Tribunal regarding the financial situation with CDNC. This related to an agreement that CDNC’s brother would pay one third of their mortgage payments in lieu of paying board. VKGD believed that he was paying more than his share of utilities, mortgage and Telstra payments after he and CDNC separated; he said that he subsequently stopped paying the mortgage and utilities bills, and disconnected the telephone in November 2018.

28. VKGD did not dispute the financial expenses statements submitted to the Tribunal by CDNC: he accepted that he did not pay costs towards private health insurance for the children, dental costs for ‘J’’s braces and clothes for ‘J’ and ‘A’, and did not provide money to ‘J’’s carer to pay for food and/or activities on Saturdays. VKGD said that he purchased groceries for the pantry and fridge including cheese, cereal, chips, meat and pasta. He said he provided three meals for the children each week.

    CONSIDERATION

29. It is apparent from the evidence of CDNC and VKGD that they have been involved in a very difficult and protracted dispute since their separation. This dispute appears to have been exacerbated by their decision to continue to reside under the same roof until orders were made in the Federal Circuit Court on 6 August 2019 regarding their living arrangements, and access to and care of their children. While some of the evidence provided to the Tribunal related to broader issues of dispute between CDNC and VKGD arising from the breakdown of their marriage, I reiterate that the issue for determination by the Tribunal is solely the appropriate percentage of care by CDNC and VKGD in relation to their children from 19 April 2018.

30. The evidence of CDNC and VKGD contained significant differences in relation to the care they provided to ‘J’ and ‘A’ after they separated on 15 March 2018. They both agreed that CDNC cared for ‘J’ and ‘A’ before school including preparing breakfast and lunch, ensuring ‘J’ was ready for government assistance transport and taking ‘A’ to school.

31. There was a divergence in their evidence about care provided to the children after school. Weighing all the evidence, I preferred the evidence of CDNC that she provided care for the ‘J’ and ‘A’ after school for the following reasons:

    ·The assisted school travel driver who drives ‘J’ to school provided statements that CDNC was the only parent with ‘J’ every morning and afternoon.

    ·VKGD’s oral evidence about the extensive care he provided to the children after school in terms of preparing afternoon tea and dinner, assisting ‘J’ with homework and putting the children to bed was not consistent with his written time logs of care.

    ·The oral evidence of VKGD was vague, unclear and exaggerated. For example, he was unable to provide clear answers about the time he leaves for work and arrives home; he made comments such as ‘J’ eats at ‘all hours of the evening’, which was not consistent with CDNC’s evidence that ‘J’ requires routine due to his diagnosis of autism; and he only recalled ‘J’ is vegan when he was reminded by the lawyer for the Registrar.

    ·CDNC provided detailed oral evidence that was consistent with her written statements setting out an organised household routine on school days. She was able to talk credibly and with authority about the children’s food preferences, activities, homework and reading requirements, and bedtime routines.

    ·CDNC ensured her work day hours are shorter to enable her to provide care to the children before and after school hours.

32. For the reasons set out above, I am satisfied that CDNC provided the majority of care for ‘J’ and ‘A’ before and after school during school terms post-separation of CDNC and VKGD on 15 March 2018.

33. The care of the children by CDNC and VKGD on the weekends and during school holiday was also dispute. CDNC contended that she provided care for the children most of the time as VKGD did not inform her about his schedule. In contrast, VKGD submitted that he spent extensive time with ‘J’ on weekends and some time with ‘A’. Both CDNC and VKGD filed time logs about the care they provided to ‘A’ and ‘J’ on weekends and during school holidays. VKGD also provided leave forms for school holiday periods and written statements from friends attesting to his relationship with ‘J’. It is simply not possible for me to determine the care provided by CDNC and VKGD to their children on the weekends; however, both parents accepted that from September 2018 ‘J’ spent more time with VKGD and ‘A’ spent more time with CDNC on weekends.

34. Finally, CDNC and VKGD provided evidence about the financial expenses incurred in the care they provide their children. I agree with the finding made by both the Registrar and the SSCSD that there is ‘no way of determining a dollar figure for the parents contributions to the accommodation of the children’.[5] While the financial situation about mortgage and utilities payments made by CDNC and VKGD was complicated by CDNC’s brother and niece staying in the home and CDNC’s brother paying board to CDNC, I accept CDNC’s evidence that she contributed substantially towards mortgage, council and water payments. I note that VKGD did not dispute that CDNC made these payments, only stating that her brother and niece living at their home was adding to the household expenses.

    [5] Exhibit T, page 137.

35. CDNC provided detailed spreadsheets of expenses, which included that she paid 100% of private health insurance for her and the children, 100% of dental expenses for ‘J’’s braces, 100% of housecleaner costs, 100% of the Telstra bill from November 2018, 100% house and contents insurance, and 100% towards clothes for the children. She also was the only parent to provide money to ‘J’’s carer on Saturdays for food/activities. I am satisfied that both CDNC and VKGD paid for groceries and meals/activities outside the home with both children.

36. Having regard to government policy set out in the Guide in determining percentage of care, I am satisfied that CDNC has been able to demonstrate that the actual care she provided ‘J’ and ‘A’ was ‘something other than equally shared’. Weighing all the evidence before the Tribunal, I am satisfied that CDNC’s percentage of care for the children was 70% and VKGD’s percentage of care was 30% from the date of their separation on 15 March 2018.

    DECISION

1. The decision under review is set aside and, in substitution, the Tribunal decides that the applicant’s percentage of care was 70% and the other party’s percentage of care was 30% from 19 April 2018.

I certify that the preceding  37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 20 December 2019

Date(s) of hearing:	29 October 2019
Applicant:	By telephone
Solicitors for the Respondent:	S Agnello, Department of Human Services
Other Party:	By telephone