Confidential and Child Support Registrar and Anor
[2014] AATA 255
•30 April 2014
[2014] AATA 255
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5016
Re
Confidential
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Confidential
OTHER PARTY
DECISION
Tribunal Regina Perton, Member
Date 30 April 2014 Place Melbourne The Tribunal affirms the decision under review.
......................[sgd]..................................................
Regina Perton, Member
CHILD SUPPORT – percentage of care
Child Support (Assessment Act) 1989 ss 50,54A, 54B, 54F,
Re: Drake and Minister for Immigration and Ethnic Affairs (no 2) (1979) 2 ALD 634
REASONS FOR DECISION
Regina Perton, Member
30 April 2014
The applicant (the father) and his former partner, the other party, are parents of two children born in 1995 and 1998 respectively. They are in dispute as to the percentage of care of each parent in relation to the younger of the two children. The percentage of care impacts on whether one parent is required to pay child support to the other and, if so, how much. This application does not concern the elder child.
As from 21 January 2013, the Child Support Registrar (the Registrar) attributed the mother with a percentage of care of the child of 56 per cent and the applicant with 44 per cent.
On 3 April 2013 the applicant contacted the Child Support Agency (the Agency) to advise that his estimated income was now zero per annum. Based on the applicant’s reduced income and the existing percentage of care, the applicant became, from that date, the parent entitled to child support with a rate payable to him of $2,399 per annum.
On 16 April 2013 the mother contacted the Agency to advise that with effect from 7 April 2013, the level of care she was providing had increased to five nights per week and half of the school holidays. She stated that the child was now in her care for 67 per cent of the time.
On 30 April 2013 the Registrar decided to revoke the existing percentage of care and determined that the mother’s care percentage was 67 per cent and the father’s 33 per cent. The effect of the decision was that neither parent was required to pay child support to the other.
On 2 May 2013 the applicant lodged an objection to the decision made on 30 April 2013.
On 1 July 2013 an objections officer of the Agency decided to allow the applicant’s objection, determining that the existing percentage of care could not be revoked and therefore a new percentage of care determination could not be made.
The mother lodged an application for review with the Social Security Appeals Tribunal (SSAT) on 9 July 2013. On 6 September 2013 the SSAT set aside the decision of the objections officer and substituted a decision that with effect from 7 April 2013, the mother had a care percentage of 67 per cent and the applicant, 33 per cent.
On 2 October 2013 the applicant lodged an application for review with this Tribunal.
On 17 October 2013, after the lodgement of the application before the Tribunal, the mother contacted the Agency advising that with effect from 13 July 2013, she had 100 per cent of care of the child. On 19 November 2013 the Registrar determined that the mother was attributed with 100 per cent of care of the child with effect from 17 October 2013, being the date she notified child support of the change. That decision is not reviewable by this Tribunal as it does not have jurisdiction as the Registrar’s decision has not been through the review process.
The issue for the Tribunal in this matter relates to the percentage of care of the child with effect from 7 April 2013 until it was again altered by the Registrar later in 2013.
RELEVANT LEGISLATION
Part 5 of The Child Support (Assessment) Act 1989 (the Act) sets out how child support is to be assessed based on the percentages of care by each parent as well as other aspects. The Tribunal only has legislative authority to determine the percentage of care. It is not charged with calculating the actual amount to be paid (if any) by one parent to the other.
Section 50 of the Act sets out how each parent’s percentage of care is to be determined based on the pattern of care the parent has had, or is likely to have during a care period:
(1) This section applies if:
(a) …; or
(b) the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and
(ii) is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3) The percentage determined under subsection (2) 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.
(4) …
Section 54A of the Act provides a guide as to how the actual care, and extent of care, of the child is to be calculated:
(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.
(2) The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.
(4) …
Section 54B of the Act provides that a determination of a parent’s percentage of care continues to apply until it is revoked by a later determination. The date on which the revocation takes effect depends on the date that the Registrar becomes aware of the change, which in this case is the date when one of the parents notified the Agency of the change.
Section 54F of the Act sets out the circumstances in which a new determination of percentage of care is to be made.
(1) If:
(a) a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section …50; and
(b) …
(c) the Registrar …is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and
(d)…
(e)…
the Registrar must revoke the determination.
(2) The revocation of the determination takes effect at the end of:
(a) if the Registrar… 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)…
(ii) otherwise—the day before that change of care day; or
(b) …
(c) otherwise—the day before the day on which the Registrar … is notified, or otherwise becomes aware, of that matter.
The Agency has prepared policy guidelines to assist with determinations under the Act. Decision-makers should generally apply policy such as the guidelines, unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case (Re Drake and Minister for Immigration and Ethnic Affairs (no 2) (1979) 2 ALD 634). The Tribunal is satisfied that the guidelines should be followed in this matter.
The Guide sets out the responsibilities of the parents in encouraging and facilitating a child to comply with the agreed percentage of care. However, where the child is of the age of the one in this matter, namely 14/15 years of age in the relevant period, he is also allowed to make decisions about whether he wishes to stay with a particular parent.
WHAT WAS THE PERCENTAGE OF CARE IN THE RELEVANT PERIOD?
The relevant care period that the Tribunal is considering in this matter is 7 April 2013 to 17 October 2013. Hence, the Tribunal must try to unravel what actually happened during that time.
The Tribunal was faced with conflicting evidence from the father and the mother in relation to how often the child stayed with the father overnight. Both appeared sincere in expressing their memories of what happened between April 2013 and October 2013 at the hearing and in their written submissions. The mother’s current partner, a friend and the elder child attended the hearing but they chose not to give evidence despite the Tribunal suggesting to the mother that their evidence might be helpful. The applicant did not have any witnesses at the hearing although he had provided witness statements during the review process as had the mother.
The applicant and the mother lived about 15 to 20 minutes walking distance from each other. The child attended school in that area as well. His sporting interests, including basketball, were also catered for in that area. The applicant and his father (the child’s grandfather) lived in their own home where a bedroom was set up for the child. The mother lived with her partner and the elder child, and for some time, the mother’s brother.
The Tribunal asked the parents to independently write down, to the best of their memories, when the child stayed with each of them during the relevant period. That technique sometimes yields some agreed dates in matters of this nature so that the Tribunal can then concentrate on the dates when there is disagreement.
The applicant stated that the child stayed with him throughout the April 2013 school holidays from Friday 29 March 2013 through to Sunday 14 April 2013; the July 2013 school holidays from Friday 28 June 2013 to Saturday 13 July 2013 and the September school holidays from Friday 20 September 2013 to Saturday 5 October 2013. He also stated that the child had spent the weekends during the relevant period with him. He noted that the child had stayed with the mother for 100 per cent of the time from November 2013 onwards.
The mother stated that the child had stayed with her in the second week of the April 2013 school holidays between 7 April 2013 and 12 April 2013 and the weekend of 13/14 April 2013. She also stated that he spend the second week of the July 2013 school holidays with her as well as the weekend of 10/2 July 2013. The mother stated that the child stayed with her and not the father from then. She commented that the applicant had only seen his son three times after that with only one of those dates being during the relevant period.
Under questioning, the applicant stated that the mother was incorrect and maintained the dates he had written down. He said that while the child attended a basketball camp for a week in one of the relevant school holidays, it was a daily activity with the applicant driving him to the venue on the other side of Melbourne and the child sleeping at home at night. He also stated that the child had been with him on the Father’s Day weekend in September 2013. He said that he would take his child home to his mother’s place after lunch on Sundays after the child spent the weekend there.
The mother stated that the applicant had moved house from the area they had both living in around the end of April / early May 2013 to a distant suburb and had rented out his home. The applicant disagreed stating that he had only moved about four weeks before the hearing. The mother stated that in the September holidays, the applicant and the child were not on speaking terms and he stayed in her home rather than go to his father’s home.
The mother gave evidence that the child is quite independent and was hurt when his father moved from a house walking distance from his mother’s home to a distant suburb. She said it was the child’s choice not to spend time with his father.
The mother provided a number of attachments to a submission dated 7 January 2014, one of which was a copy of a letter addressed to her dated 13 December 2013 from a community legal service acting on behalf of the applicant which stated, among other things:
Re: Parenting Arrangements
We advise that we are assisting your former husband…in relation to his family law matter.
We advise that the Australian family law courts take a very strong approach in relation to parents, who are not fostering a relationship between their children and both parents and grandparents.
We understand that our client played a very active role in …[the child’s] life up to about April, this year, when you were asked to pay child support in relation to him.
We are of the view that …[the child] should be given the opportunity to spend time with his father and paternal grandfather, on a regular basis.
…
It is of particular importance that there is some reunion over the Christmas period.
…
At the hearing, the applicant presented the Tribunal with a letter from the legal service dated 28 January 2014 with the same text as that cited above except that it stated that the applicant played a very active role in the child’s life up to about November 2013 rather than April 2013 as in the earlier version. The applicant stated that the first version gave the wrong date for the cessation of contact so he asked for it to be amended.
The mother also produced minutes and hand written agreements following mediation sessions held at Relationships Australia on 29 July 2010 and 15 August 2011. The latter agreement was noted as being subject to review in October 2012 although there is no evidence that this occurred or that there was any replacement. Under the later agreement, the child was to stay with the father on weekends from Friday evening to Sunday evening. There is no mention of school holidays in the notes of the mediation sessions.
The mother’s partner provided a statement to the Agency dated 16 June 2013 in which he stated that the child had stayed with his partner and him in the second week of the April school holidays. A close friend of the mother also provided a statement dated 14 June 2013 indicating that the child spent the second week of the April holidays with the mother and that she had dinner on Tuesday and Thursday of that week at the mother’s home and that the child was there.
A friend of the applicant provided a statement to the Agency dated 6 June 2013 in which she stated that she had been present at the applicant’s home during the April school holidays and that the child was always with his father on weekends and school holidays.
The applicant stated that while his son may not have been with him during the day on all weekends and holidays, sometimes dropping in to the mother’s or being involved in sporting activities, he would come to his home to sleep at night on weekends.
The mother submitted that the decision made by the SSAT was the correct one. She was of the view that the applicant’s reasons for his appeals were based on his view and opinions rather than facts. She also made allegations as to why the applicant ceased work but these are not relevant to the Tribunal’s decision on percentage of care.
The applicant maintained that the child had been with him during the school holidays and on weekends as given in his earlier evidence.
This has been a difficult case for the Tribunal to grapple with. Both parents maintained their version of the facts throughout the hearing which was consistent with that given to the SSAT and to the Agency. However, in the end, the Tribunal is required to make a decision one way or the other. The advocate for the respondent did not advance a view as to what the preferable decision is, remaining neutral.
In relation to a teenage child refusing to see his parent, the Tribunal notes that the guidelines suggest that this will generally be acceptable to the Agency where a child is aged 15 years or over. In this case, the child turned 15 years during the relevant period. The guidelines also suggest that the parent with the greater level of care should be encouraging contact between the other parent and child. The mother gave evidence that she did do so but there is no objective evidence available to determine if that was indeed so.
The mother contacted the Agency on 16 April 2013 to advise of a change to earlier arrangements whereby the applicant would have the child during half the holidays and on weekends as from 7 April 2013 resulting in the mother having 67 per cent of care and the applicant 33 per cent. This was changed by the objections officer who decided he could not revoke the earlier ratio of 44 per cent to the applicant and 56 per cent to the mother. The SSAT determined that the applicant having 33 per cent and the mother 67 per cent was the preferable decision.
The Tribunal gained the impression of a caring father who has been greatly hurt and saddened at the lack of contact with the child. It appeared at times that he was wishing for what might have been rather than what had actually happened. The mother’s evidence was somewhat assertively presented but there is no reason to doubt her oral or written evidence concerning her child’s movements.
The Tribunal notes that the only available evidence apart from that of the parents was that provided to the Agency in June 2013 by the partner and friend of the mother and two friends of the applicant. Unfortunately there was no independent evidence presented to the Tribunal as to the child’s movements after that time.
Weighing up all the available evidence, the Tribunal finds, on the balance of probabilities, that the applicant’s percentage of care during the relevant period was 33 per cent and the other party’s 67 per cent.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member .................[sgd].......................................................
Administrative Assistant - Legal
Dated 30 April 2014
Date of hearing 31 January 2014 Applicant In person Advocate for the Respondent Nicholas Anawati Solicitors for the Respondent Department of Human Services, Program litigation and Review Branch Other Party In person
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