Confidential and Child Support Registrar Anor JOINED PARTY
[2013] AATA 426
[2013] AATA 426
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0283
Re
Confidential
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Anor
JOINED PARTY
DECISION
Tribunal Ms N Bell, Senior Member
Date 25 June 2013 Place Sydney The Tribunal varies the decision under review to alter the effective date of the determination to 6 June 2011. In all other respects the decision under review is affirmed.
..........[Sgd]..............................................................
Ms N Bell, Senior Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
CATCHWORDS
CHILD SUPPORT - percentage of care - court orders for equal shared parental responsibility - child a weekly boarder at his school - payment of school fees - whether necessary or appropriate to attribute specific periods spent at boarding school to either parent - how care should be apportioned between parents for periods spent at boarding school - decision under review varied.
LEGISLATION
Child Support (Assessment) Act 1989, s 50, 54A
CASES
P v Child Support Registrar [2012] FCA 1398
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
SECONDARY MATERIALS
Child Support Agency, The Child Support Guide, 2012
REASONS FOR DECISION
Ms N Bell, Senior Member
25 June 2013
This application concerns the care, as between two parents, of a child who attends a boarding school, and the manner in which, for the purposes of assessment of child support, each parent’s percentage of care of the child should be assessed. “Percentage of care” is one of the elements of a formula for the administrative assessment of child support.
P’s application for review of a decision by the Child Support Registrar has been remitted by the Federal Court “to be further determined according to law” (see P v Child Support Registrar [2012] FCA 1398).
In January 2012, P sought a review by this Tribunal of the decision made by the Social Security Appeals Tribunal to affirm, in substance, a decision by the Registrar that he has a percentage of care for his child, C, of 50%. C’s mother, M, was joined as a party to the proceedings before this Tribunal.
Orders were made by the Federal Magistrates Court on 6 June 2011 and remain in place. In particular, those orders provide for “equal shared parental responsibility”; for responsibility for day-to-day decisions regarding C’s care, welfare and development to be made by the parent with whom C is living at any particular time; for C to live with each parent on an alternating weekly basis and to spend half of each school holiday with each parent; for P “and/or” his mother, AP, to be solely responsible for school fees and expenses at St Joseph’s College where C is a boarder, and for each parent to ensure that C is supplied with the equipment and clothing required when C is living with the other parent. The full terms of the orders, as far as they are relevant to this application, are set out later in these reasons.
In the appeal to the Federal Court, the parties agreed that C spends 201 nights at boarding school and the remaining 164 nights are divided equally between P and M. There was also agreement between the parties that each parent was entitled to be consulted if questions about the wellbeing of the child arose during the period he spent at St Joseph’s College.
In the hearing before me P first sought to resile from this concession as to equality of care between the parents when C is outside of boarding school, a concession that he had also made in his most recent Statement of Facts and Contentions. In his final oral submission he made the concession again. Given this renewed concession, the periods I will focus on are the periods when C is in boarding school.
ISSUES
P considers that he alone is responsible for the payment of C’s school fees. He considers that this entitles him to have apportioned to him the care of C for the whole of the period for which he is at St Joseph’s College and therefore that he is entitled to a larger percentage of care in respect of C.
Decision makers before me have decided that P and M have equal care of C for the whole of the nights he is at St Joseph’s College. This fell foul of section 54A(3) of the Child Support (Assessment) Act 1989 (the Act) which provides that, for the purposes of working out the actual care of a child by reference to nights in a parent’s care, a child cannot be in the care of more than one person at the same time. This was the error of law found by the Federal Court.
However, Buchanan J, on remitting the decision to this Tribunal raised the possibility that it may be unnecessary to assess actual care by reference to nights spent by C in a parent’s care as per section 54A. He referred to the assumption that C’s nights at boarding school be attributed to or between each of the parents and described it as less than sound. His Honour noted that no attention had been given to whether it was necessary to actually nominate a particular carer or assign a carer for particular nights while C is at boarding school. His Honour said:
It is not clear to me that it is necessary under the Act to actually assign the period, or the days within it, to one parent or the other.
His Honour also said, after referring to the Child Support Agency Guide:
If it is not possible to determine the percentage of care based upon actual care (or perhaps to the extent to which it is not possible to do so) it may be accepted by a decision-maker that parents share the care of a child equally. That may be a possible approach in the present case to the period spent at St Joseph’s College, although it is not one, as it appears to me, which has so far been taken in those terms.
Alternatively, in an example approach given by the Guide, credit may be given to a person ‘who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well as is [sic] who is meeting the child’s costs, rather than just the accommodation themselves’. That example is given in connection with a suggestion that ‘a person can provide care for a child who is at a boarding school, in hospital or in separate accommodation’. An approach like that might support the Applicant’s position. It is certainly one upon which he relies.
I do not think this matter can be resolved until a judgment is made by a fact finder/decision-maker about whether there should be an attempt to make a specific assignment to a particular parent in relation to the period at St Joseph’s College. I do not believe that the position is conclusive in favour of one side of that argument or the other. Further assessment of the issue will be a matter for the AAT.
It follows that the issues for me to consider are:
(i)Whether it is necessary or appropriate to attribute specific periods that C spends at St Joseph’s College to either parent; and
(ii)If so, how the periods that C spends at St Joseph’s College should be apportioned between the parents.
IS IT NECESSARY OR APPROPRIATE TO ATTRIBUTE SPECIFIC PERIODS AT ST JOSEPH’S TO EITHER PARENT?
Legislative Framework
Section 50 of the Act provides:
50 Determination of percentage of care - responsible person has had etc. a pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child 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; 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) Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.
(My emphasis)
The term “actual” care is not defined in the Act. The only guidance offered in the Act as to how “actual care” may be worked out is in section 54A which provides as follows:
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.
(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) This section does not limit section 50, 51, 52 or 54. (My emphasis)
Notably, the section provides for actual care to be worked by reference to nights in care on a discretionary basis. At section 54A(4), the section explicitly provides that it does not limit section 50, among others.
It follows that the Act does not require actual care, and therefore percentage care, to be worked out in all cases by reference to number of nights that a child is in the care of a person.
I turn now to the Child Support Agency’s Guide. It provides, relevantly, in Chapter 2.2.1:
Percentage of Care
The percentage of care is the mechanism in the child support assessment formula that takes into account the amount of time a parent or non-parent carer is responsible for providing care for the child.
A parent or non-parent carer’s percentage of care for a day in a child support period is the percentage of care that the person is likely to have of the child during the care period.
Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period …
If CSA is not able to determine a care percentage based upon the actual care, CSA will generally accept that the parents share the care of their children equally. In this case, CSA 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.
Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time.
Example
A person can provide care for a child who is at boarding school, in hospital or in separate accommodation. A person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent, a schoolteacher) does not provide care.
Consideration is given to who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well as is [sic]who is meeting the child’s costs, rather than just the accommodation arrangements themselves …
The Guide clearly envisages circumstances where actual care may be worked out under section 50 other than by reference to nights. It also envisages circumstances where percentage of care may not be able to be based on actual care. If the circumstances justify it, a decision maker is not constrained by the Act or by policy to determine percentage care by reference to nights.
Consideration of the Circumstances of this Case
On 6 June 2011, the Federal Magistrates Court made consent orders covering custody, access and property issues between P and M. In the Social Security Appeals Tribunal, in this Tribunal on the previous occasion and in the Federal Court it was agreed that the orders were complied with. The only indication in the proceedings before me that the orders are not being complied with was a question from P to M, in his cross examination of her, as to whether he was complying with the orders. Her answer was that he was not. No further questions were asked of her and no further or other evidence given about the matter. The orders cover a range of matters, including matters concerning property. I have no evidence as to which of the orders P is alleged not to be complying with. Nor do I have evidence from him as to whether he is complying with the orders. There is no evidence of a current application to the Court in respect of the orders and no evidence of any further orders having been made by the Court. On the basis of the evidence before me, and having regard to previous evidence given in this Tribunal, I find the orders are being complied with.
The Court’s orders of 6 June 2011 provide relevantly:
1That AP (the husband’s mother) is joined as a party to these proceedings.
PARENTING
2That the Husband (father) and the Wife (mother) have equal shared parental responsibility for … (“the children”) including but not limited to:
(i) The school or schools that each child is to attend
(ii) The religious instruction and upbringing of each child
(iii) The medical treatment that each child is to receive.
(iv) The sporting and other activities that the children are to engage in that would occur when the children are to spend time with each of them
3That the parent with whom the children are living with [sic] at that time is to be responsible for the day to day decisions concerning the care, welfare and development of the children.
4That during the school terms the children … live with the father each alternate week from after school Monday until the commencement of school the following Monday, and that the children otherwise live with the mother, such order to commence with the father on the first Monday of the school term, being Term 3, 2011.
5That during school holidays the children spend one half of each school holidays with each of their parents as agreed between the Husband and Wife in writing but failing agreement for the first half with the father in holidays commencing in odd numbered years and for the second half with the father in holidays commencing in even numbered years, such time to commence in the June/July 2011 school holidays.
…
7The Court notes that the child (C)is currently at boarding school and that the child (A) is due to be enrolled to commence attending boarding school at St Joseph’s College in 2013.
8That whilst ever any of the children are attending boarding school the time that they spend with each of their parents pursuant to the orders above will be regulated by the requirements of the school.
…
12That the Husband and Wife do all acts and things and sign all documents necessary to enrol (A) and (B) in St Joseph’s College, Hunters Hill (“St Joseph’s”) as weekly boarders for their secondary schooling. That such documents be completed and forwarded to St Joseph’s no later than the dates specified by this School [sic].
13That the Husband and/or the Husband’s mother (AP) will be solely responsible for the payment of all and any school fees and expenditure at St Joseph’s College Hunters Hill and that any such payments will not be claimed by the Husband as non-agency child support payments.
The remaining orders in relation to parenting provide for co-operation in equal measure between both parents and by each parent with the requirements of the school. As Buchanan J said,
There is nothing in the orders which allocates parental responsibility for C to one parent to the exclusion of the other while C is at St Joseph’s College. To the contrary, the orders appear to contemplate that each parent will retain that degree of shared responsibility for C’s wellbeing which is consistent with the fact that he resides at St Joseph’s College on Monday to Friday nights inclusive during school terms. It does not appear to me that payment of school fees alters that position.
Later His Honour said,
Neither the applicant nor the second respondent could claim a right to consultation by St Joseph’s College to the exclusion of the other in any particular circumstance or on any particular occasion.
Thus the orders place the parties on an equal footing with respect to responsibility for C’s wellbeing while he is at boarding school.
However, P contends that payment of the school fees is a determinative factor in the assessment of percentage of care in this case. He referred me to the decision of the Federal Magistrates Court in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 and the comments of the Federal Magistrate who, in considering whether and to what extent a person has care of a child for purposes of the Act, said the following questions may be posed.
In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act and the Child Support (Registration and Collection) Act, it is necessary to consider the following:
(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 extracurricular 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?
Similar questions, though with more emphasis on the notion of responsibility and decision making, are posed in the Guide at 2.2.1 under the heading Determining whether care exists:
·To what extent does the person have control of the child, including having overall responsibility for the child and making:
omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities; and
oarrangements for others to meet the needs of the child.
·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?
·To what extent does the person pay for the costs of meeting the needs of the child?
·To what extent does the person otherwise provide financial support for the child?
·To what extent does the child provide for his or her own needs or have those needs met from another source?
·To what extent is the child financially independent or financially supported from another source?
I consider that the Court’s orders make it clear that P and M are on an equal footing in most of the respects set out in the Guide and in Polec. The only apparent and potentially significant departure from that position is the payment of school fees. That payment could be characterised as “paying for the costs of meeting the needs of the child”.
The orders provide that payment of the fees for St Joseph’s College is, solely, the joint and several responsibility of P and AP, his mother. In addition, such payment may not be claimed by P as a non-agency child support payment. Under the orders, as Buchanan J said, the payment of these fees does not alter the position that each parent has equal responsibility for C’s wellbeing. However, the payment of the costs of meeting the needs of a child is a factor that should be considered in assessing the extent to which a parent provides care.
A difficulty with assessing the importance of the payment of C’s school fees in this matter is that there is an issue as to whether P does, in fact, pay the school fees.
The orders provide that his responsibility for this is shared with his mother, AP. They are jointly and severally responsible for these fees.
P relied on a letter from the Director of Business Services at the school, dated 18 February 2013, provided at P’s request, in the following terms:
We refer to the basis on which your son’s [sic] attend St Joseph’s College and in particular the financial responsibility for fees and charges.
Following a review of the enrolment application, Family Court documentation provided to the College and the College’s records we confirm [sic]
You have personally completed documentation required by the College and made all payments required to finalise an offer and [sic] (C) to continue into Year 9 and for (A) to commence Year 7 in Term 1, 2013. (M) has consented to the enrolments however she is not obligated to meet any financial costs of the boys attending the College. This responsibility is borne solely by yourself and is confirmed by your undertaking in this respect. Accordingly the College, where necessary, will contact you in relation to any financial matters concerning the schools [sic] fees and charges or decisions requiring financial input.
This appears only to be consistent with the orders in respect of the shared responsibility of P and M for C’s welfare and takes the matter no further. It is not proof of the source of the payment. It does, however, indicate a contractual arrangement between P and the school. No mention is made in the letter of AP.
P called evidence from AP, his mother, who confirmed the contents of her affidavit of 20 April 2013. In that affidavit she deposed:
10During the hearing before FM Kemp on 6 June 2011, I agreed to loan (P) funds so that his sons could attend St Josephs as weekly boarders. This loan agreement is based on the fact that all funds will be repaid in full by (P).
…
13I have never entered into any contractual arrangement with St Josephs and have never paid the school fees for (C) or (A). I have loaned my son the money he is required to pay the school fees.
…
15 In August 2011, (P’s) business was evicted from the business premises and as a result he has suffered financial hardship. To date (P) owes a substantial amount of money to me. …
…
20(P) is receiving family tax benefit from Centrelink, 100% of this is directed to the repayment of the loan I have provided him. …
In oral evidence AP said that there is no contract or loan document that records the agreement between P and AP for her to lend money to him. A document was produced and tendered in evidence, recently prepared by P and AP for the purposes of the proceedings, that purports to list all moneys loaned by AP to P in respect of payment of the St Joseph’s College fees. The total amount noted on the document was in excess of $108,000. Bank account statements were also tendered in support of the contention that P deposits into an account held by AP the amount of family tax benefit he receives.
AP gave evidence that P owes her other money besides the amount of payments of school fees. She said he owes her money for rent and other items, including some mentioned in the Court’s orders. She said he remains in financial difficulties and she agreed that she would not require repayment from him until he is in a more stable financial position. She said:
He will repay me when he can and if he can.
Later she said:
He has made a promise to me that he will pay it back before (B) goes to school, and if he can’t do it then we will come to another agreement.
There are receipts from the school for fees made out to AP. When asked whether she had hand delivered fee payments to the school, AP said:
(P) gave me the money to go to pay the school fees and a clerical error was made – and I know where you’re going – was made. The girl at the counter asked me my name when she was writing out the receipt and she wrote my name down rather than the payment for (C’s) fees by his father. Is that what you’re getting at?
…
… Are you saying he gave you the money?---Okay. Just so it gets through to you, (P) has bills. He hasn’t the money to pay for them so he asks his mum for a loan. His mum gives him a loan and sometimes it’s inconvenient for him to go and pay the bills so I am the one that goes and pays the bills in his – for him, but it’s still my money loaned to him, even though his name is on the invoice. Is that clear?
AP said she was treating the school fees payments as “an investment in her grandchildren’s education”. When asked in cross examination whether she would take legal action to recover the debts, she said:
… If (P) goes the way he is and he’s paying me back dribs and drabs when he can, that suits me fine, and if I die before he has paid all the debts, how am I going to care about it? Who am I going to sue?
Then, after further questions from P that AP answered to the effect that she would most definitely take him to court were he not to repay the moneys, AP answered as follows to the following question from the Tribunal:
SENIOR MEMBER: Just so I understand, (AP), you said something about suing your son, or going to court to get the money back from your son? ---Yes
If his financial circumstances did not improve, would you go to court to get the money back? --- No. As I said, that while he was unable to support himself and his family I would do it for him and he would pay me what he could when he could.
In cross examination P said he was “broke”. He said he now pays the fees with his credit card so that he is recorded as the payer. He agreed that the amount of money he currently owes his mother, taking into account all items for which she has loaned him money, is vastly in excess of the $108,000 she has currently made available for school fees. He also agreed that the balance is growing all the time. He insisted that he will be “back on his feet” in three or four years when his youngest son commences at St Joseph’s, the time by which he says he has undertaken to repay his mother. When asked how he intends to repay the money by that time he said:
I’m very close to getting my business back up and running. I’ve got to have knee surgery, I’ve got to have shoulder surgery before I can do that. It’s all underway. So when I’m back up and running and I’ve got the business back up and running, I believe I will make a fortune.
P said that, at the moment, his business is a sports business and that he does some part-time consulting.
On the basis of the evidence I am not satisfied that P in fact pays for the costs of meeting C’s needs. The Court’s orders make him and his mother jointly and severally responsible for the fees. He is not solely responsible for the school fees; he shares the responsibility with his mother. P currently has no capacity to make the payments for the fees. They are paid with money provided by his mother. Arrangements for the fees to be paid through P’s credit card with credit card liabilities being met by P’s mother do not alter that. The characterisation of this arrangement as a loan limps given the absence of clear terms for repayment; the very small rate at which payments are made by P into AP’s bank account and the small amount of approximately $10,000 he has paid back so far; the absence of any terms as to interest; AP’s evidence that she would not seek to enforce repayment if P’s financial situation does not improve; P’s current financial state and uncertain future; and the large and growing amount his mother has already paid on his behalf, “vastly in excess of $108,000” and growing. I am also mindful of AP’s description of the moneys she advances as an investment in her grandchildren’s education.
Even if this arrangement could properly be characterised as a loan, AP’s evidence is that it will result in a debt that AP is prepared to largely forgive. I do not consider that this amounts to P paying for the costs of C’s boarding at St Joseph’s College. It does not amount to P’s meeting the costs of C’s needs to an extent greater than the extent to which M pays for those costs. I consider that P and M remain on an equal footing in respect of C’s care while he is at boarding school.
Given the latitude provided for decision makers by section 50, I need not assess percentage care by reference to nights. Section 54A(4) puts a decision maker’s discretion in this respect beyond doubt. It would be nonsensical to make an assessment by reference to nights of care relation to the nights of the year when C is at boarding school, and during which period his parents share parental responsibility for him pursuant to the Court’s orders.
The Guide envisages such situations when it provides:
If CSA is not able to determine a care percentage based upon the actual care, CSA will generally accept that the parents share the care of their children equally. In this case, CSA will determine that each parent has a care percentage of 50%.
I consider that it is neither necessary nor appropriate to attribute specific periods that C spends at St Joseph’s College to either parent. It remains agreed between the parties that during the time C spends outside St Joseph’s College they share his care equally. I consider it appropriate, in accordance with section 50 of the Act and in accordance with the Guide, to regard C’s care during the time he spends in St Joseph’s College as similarly shared equally by his parents. There is no need to attribute specific periods and it would be artificial and inappropriate to do so in the circumstances of this case.
I conclude that each parent has a percentage of care of 50%.
Given my conclusion that it is not necessary to attribute specific periods at St Joseph’s to either parent, it is not necessary to consider the secod issue identified in paragraph 11 above.
As to the date of effect of the determination, I am satisfied that the Child Support Registrar revoked the then existing determination following notification by P of the Court’s order on 7 June 2011. I find the new determination of percentage care of 50% for each parent commenced on 6 June 2011, the date of the Court’s orders.
DECISION
The Tribunal varies the decision under review to alter the effective date of the determination to 6 June 2011. In all other respects the decision under review is affirmed.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. ......[Sgd]..................................................................
Associate
Dated 25 June 2013
Date(s) of hearing 1 May 2013 Applicant In person Solicitors for the Joined Party Mr N Gouliaditis, Australian Government Solicitor
Solicitors for the Third Party Ms S Cole, Legal Aid New South Wales
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