Confidential and Child Support Registrar Anor OTHER PARTY
[2014] AATA 403
[2014] AATA 403
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3254
Re
Confidential
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Anor
OTHER PARTY
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 23 June 2014 Place Sydney The decision under review is is set aside and the Tribunal determines the care percentages for the children for the period 6 September 2012 to 5 September 2013 to be:
· C and H: the mother – 50% and the father - 50%
· O – the mother – 35% and the father – 65%
............[sgd]............................................................
Ms N Isenberg, Senior Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
CATCHWORDS
CHILD SUPPORT – Percentage of care – Relevant period for determination - Factors relevant to the determination of actual care - Determination of new percentages of care in a period – Decision set aside
LEGISLATION
Child Support (Assessment) Act 1989 (Cth), ss 49, 50, 54F, 54G, 54H
Child Support (Registrations and Collection) Act 1988 (Cth), ss 80A, 87(1)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Child Support Guide, Chapter 2.2
REASONS FOR DECISION
Ms N Isenberg, Senior Member
23 June 2014
BACKGROUND
The Applicant in this matter seeks review of a decision of the Social Security Appeals Tribunal (SSAT), dated 31 May 2013, which amended a child support assessment regarding a mother and father’s three children: C, H and O. O, the youngest, is severely disabled. The father and mother are in dispute as to the percentage of care each had in respect of each child. This, I understand, impacts upon the Family Tax Benefit (FTB) and other benefits they can be paid.
At the commencement of the hearing I strongly encouraged the parties, even at that late stage, to negotiate an outcome that might be acceptable to them both. I explained that, as is a hallmark of litigation, as distinct from alternative dispute resolution, there would otherwise be a ‘winner’ and a ‘loser’ if the Tribunal had to make a decision. Because of the peculiarities of the Child Support/FTB benefits, both parties, I was informed, could have been ‘losers’. My encouragement was in vain.
The parties had filed voluminous material and had many more documents to hand up at the hearing. Their existence, it seems, has been consumed by record-keeping of the minutiae of their lives e.g. shopping dockets, diaries of meals prepared, times and details of bath routines and school pick-ups.
Because both parties professed to need the assistance of an interpreter for the whole of the proceedings I took the view that it would be most expedient to hear their evidence on a concurrent basis, giving each party the opportunity to speak on issues and to address the evidence of the other as it was given. Unfortunately the parties made long, rambling speeches, canvassing historical aspects of the children‘s upbringing, and notwithstanding my attempts to continually focus their attention on the relevant period (see below), they also persisted in providing information about the current circumstances. Their evidence was characterised by sweeping statements (for example “I paid all …” and “I did 99% of …”) which was patently untrue on the most cursory examination of the evidence. Almost every statement made by one was met with either a blanket denial by the other or a rambling explanation that referred to numerous irrelevancies. There were allegations and counter allegations of neglect and violence, which were adamantly denied.
Unsurprisingly, the matter did not conclude during the allocated time. One party apologised for “airing their dirty laundry”. At the conclusion of the first day of hearing, the parties were again encouraged to put aside their personal acrimony and consider whether continuing to make allegations may have a destructive effect on their children, and to re-consider a negotiated outcome. They agreed they had communication problems and this appears to have been a hallmark of their relationship. To his credit, the solicitor for the Respondent offered to continue assisting the parties in relation to their benefits. However, the matter could not be resolved and a second day of hearing was necessary.
DECISION UNDER REVIEW
The decision under review is that of the Social Security Appeals Tribunal (SSAT), dated 31 May 2013, which set aside the decision of the Respondent and substituted a new decision that the child support assessment from 6 September 2012 should be based on the following care percentages:
·C and H: the mother 60% and the father 40%
·O: the mother 35% and the father 65%
ISSUES
The issue for determination by this Tribunal is:
(i)whether the Respondent’s determination of 26 September 2012 should be revoked; and
(ii)if so, what percentage of care did the mother and the father have for each of their children between 20 July 2012 and 5 September 2013.
From her application for review, of particular concern to the mother is the percentage of care assigned to her in respect of O. She has stated in her application that she agreed with the care percentages applied to C and H by the SSAT, but believed her care percentage for O should be more than 50%. However, because the entire decision is before me for review, not just in relation to O, the relevant percentage in respect of each child is at issue. I explained this to the parties when I was encouraging them to discuss the matter between themselves.
RELEVANT FACTS
The children were born in 1996, 2003 and 2007. O, the youngest, attends a special needs school.
On 6 September 2012, the father applied to the Child Support Registrar (CSA) for a child support assessment. In his application, he noted that he and the mother were separated under one roof since 20 July 2012. On 26 September 2012, an officer of the department made an assessment that from 20 July 2012 the father had 51% care of each child, and the mother had 49% care of each child. Further, each parent was determined to have a cost percentage of 50%, meaning that each parent met 50% of the costs of caring for each child (the Original Determination).
On 2 November 2012, the mother lodged an objection to the decision, because of the care percentages which had been determined.
On 19 January 2013, an objection officer, in disallowing the objection, stated that the CSA was unable to determine a care percentage based on the actual care provided by the mother and the father. As the parents were living in the same unit with the children, the CSA determined that it was appropriate to determine that each parent has a care percentage of 50%. On 19 February 2013 the mother applied to the SSAT for review of that decision. Further material was supplied to the SSAT by each parent.
On 31 May 2013 the SSAT set aside the decision and instead determined that the mother had 60% care of both C and H and 35% care of O, and consequently, that the father had 40% care of C and H and 65% care of O.
On 8 July 2013, the mother applied to this Tribunal for a review of the decision of the SSAT.
RELEVANT LEGISLATION AND POLICY
The relevant legislation is found within the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registrations and Collection) Act 1988 (the Registration Act).
The CSA also publishes the Child Support Guide (the Guide) which sets out its guide to the administration of the child support scheme.
Sections 49 and 50 of the Assessment Act empower the CSA to make a determination in relation to the care percentage that a responsible person has in respect of a child.
Section 50 of the Assessment Act allows the CSA to make a determination based on the actual care provided by the parents during a care period. Section 50(1)(a) states that a ‘care period’ refers to a period for which a responsible person has a pattern of care for a child.
Section 50 provides as follows (emphasis original):
Section 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.
Section 49 of the Assessment Act also allows the Registrar to determine care by reference to a care arrangement, if no pattern of care can be established.
Chapter 2.2 of the Guide deals with calculation of care percentages. Part 2.2.1 of the Guide states that the CSA may also determine actual care by reference to the number of hours of care over a care period. In cases where parents are separated, but living under the same roof, Part 2.2.1 of the Guide sets out the approach that the CSA is to take:
Where parents are separated but are living in the same house, the Registrar will determine each parent's percentage of care based upon the care that is actually occurring for the child. If the Registrar is not able to determine a care percentage based upon the actual care, the Registrar will generally accept that the parents share the care of their children equally. 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.
In Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 at [56], Hughes FM opined as follows in relation to determination of actual care:
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 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:
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?
a.To what extent does the person make arrangements for others to meet the needs of the child?
b.To what extent does the person pay for the costs of meeting the needs of the child?
c.To what extent does the person otherwise provide financial support for the child?
d.To what extent does the child provide for his or her own needs or have those needs met from another source?
e.To what extent is the child financially independent or financially supported from another source?
Under section 80A of the Registration Act, a carer or liable parent may lodge an objection to a care percentage decision. Upon receipt of an objection, the CSA must consider the objection and either disallow it or allow it in whole or in part: s 87(1) of the Registration Act.
Upon receipt of an objection, the CSA must consider whether the care determination should be revoked pursuant to sections 54F, 54G and 54H of the Assessment Act. Relevant to this matter is subsection 54F(1), which provides as follows:
54F Determination must be revoked if there is a change to the responsible person’s cost percentage
(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 49 or 50; and
(b) if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and
(c) the Registrar or the Secretary 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) the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and
(e) section 54G does not apply;
the Registrar must revoke the determination
If section 54F or 54G of the Assessment Act do not apply, then section 54H of the Assessment Act provides a further discretion for the CSA to revoke an existing determination. Under section 54H, an existing determination may be revoked if the Registrar is satisfied that if a new determination were to be made, a responsible person's new care percentage would differ from the care percentage assigned under the existing determination.
Once revoked, a new determination can be made pursuant to s.49 or s.50 of the Assessment Act.
CONSIDERATION
The Relevant Period
The parents agreed that they became separated under one roof from 20 July 2012, although they appear to have told the Federal Circuit Court that, for the purposes of their divorce application, they separated on 30 August 2012.
As the application was made on 6 September 2012, the child support period commenced on the 6 September 2012 (s.7A(2), Child Support (Assessment) Act 1989), even though the pattern of care was found to have existed since the date of separation on 20 July 2012. I consider that it is appropriate to revoke the existing determination that had been in place up until the date of application because of the change in the pattern of care.
On 5 September 2013 the father moved out and another subsequent pattern of care existed from that date, with the mother having 100% care of all three children. Percentage of care from that date is not the subject of this application for review.
Therefore the relevant period was 6 September 2012 until 5 September 2013.
Actual care provided by each parent
In his initial claim the father claimed to have 50% care of C and H, and 90% care of O. In response, in her letter to the CSA in October 2012 (‘the letter’) the mother claimed she was providing 80% of the care for C and H, and 75% of the care for O. In January 2013 the mother told the CSA that the father provided care for O, “almost like her” but not in relation to C and H. At the outset of the hearing the mother conceded that 50/50 was an appropriate percentage split, not only in respect of C and H, but also O. The father said his care was at least 50% of C and H and more than 90% with respect to O.
The parents agreed in their evidence that during the relevant period the mother shared a room with C and H, while the father shared a room with O. It was agreed that the father usually provided most of the care for O, especially in relation to his feeding, bathing and toileting. However, the father claimed he attended to all of O’s needs whereas the mother claimed that she did at least one third. In the letter she claimed to have fed O every day, including his feeds in the middle of the night, which is inconsistent with her evidence that O slept with the father. She said O did not need nighttime feeding after November 2012. The father said he attended to all O’s night time feeds, and O in fact still requires feeding at night. The father claimed the mother was reluctant to feed O at all. Their evidence in this regard is irreconcilable.
As to household expenses in respect of the children, the father said they were split 50/50 whereas the mother said they seldom discussed expenses. In the letter she claimed to have paid 100% of the expenses relating to the children: food and daily consumer goods, clothes school uniforms, toys, travel expenses, all education costs and activities fees. Some (historical) receipts were provided with little information relating to the relevant period. It was unclear to the extent that these payments represented the totality of expenses, and in any event, if payments continued to be made by her after the date of the letter. In that regard the father alleged that some expenses were not paid by the mother for the whole of the relevant period. The father also produced voluminous receipts, especially for household items and chemist goods. The mother claimed that the father only paid 50% of the bills from November 2012.
As to the division of household chores between the parents, including in respect of the three children, the mother claimed that she did 2/3 of the work. The father disagreed, and claimed that he mostly cooked the children’s dinner, whereas in the letter and in her evidence the mother claimed to prepare every meal for the children. The mother agreed that the father washed some items of O’s daily, but said she washed for all the children 3-4 times a week or twice on the weekends.
The mother claimed to have the main responsibility for purchasing the children’s clothes, whereas the father claimed he had arranged for his brother to bring a substantial amount of clothing from China when he came to visit. He said he had also bought some school clothes for O during the relevant period.
The parents agreed that they were each responsible from time to time for taking the children to and from school, but the father said that sometimes he would have to take all the children to their various schools because the mother did not take C and H. Both purported to be interested in the children’s education. The father had financed H’s coaching for the selective high school entrance test, but this did not start until about August or September 2013.
The mother claimed to have agreed to a comprehensive plan in relation to O with the school, but the father said this was in September 2013 after he had left. The father claimed that before that time he was 99% responsible for O (although in his original discussion with the CSA he claimed it was 90%).
Both gave evidence of the children’s various social activities which they had encouraged and financed.
All the children had medical issues, varying in severity during the relevant period. From the evidence both parents had a role in taking the children to various medical practitioners from time to time during the relevant period. Sometimes they even went together.
Because of the acrimony between the parties and the complete disagreement with each other on aspects of the evidence I placed greater weight on objective evidence, to the extent that it was available. I did not place great weight on the reams of records each kept as these, it seemed to me, were self-serving. The Tribunal’s assessment cannot just turn on who is the more proficient record-keeper or more persistent in their claim. Some material provided by the parties was in the nature of references which, for the purposes of this matter, were unhelpful. Other information provided was selective, and therefore little weight was attached to it.
Because the claims of the parents were frequently so disparate, letters from the Principals of O’s school dated 21 September 2012 and of C’s school dated 17 September 2013 were helpful, because of their objectivity. O’s Principal wrote of both parents having attended meetings and demonstrating an interest in O’s educational programs. C’s Principal wrote of the father’s daily travel to collect C, although this was at the commencement of her schooling there, which was in 2010. The school had been in contact with the family’s social workers. The school had provided assistance to C in the form of uniform, fees and expenses, which was at odds with the mother’s claim that she met all school expenses and paid for all school uniforms. Both parents were seen as ‘interested and concerned for C’s welfare’. Of especial relevance, the Principal wrote that the school had had more contact with the father and that it was only ‘relatively recently’ that the school had been in contact with the mother.
I have referred above to the Guide in circumstances where parents are separated under the one roof. Whilst I am not bound to apply policy guidelines such as the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86. There were not cogent reasons in my view not to apply the Guide.
According to the Guide, each parent's percentage of care is to be based upon the care that is actually occurring for each child. If the CSA, or the Tribunal on review, is not able to determine a care percentage based upon the actual care, it is to be generally accepted that the parents share the care of their children equally until either parent is able to demonstrate that the actual care of each child is something other than equally shared.
Doing my best on the available evidence, I am not persuaded that either parent was able to demonstrate that the actual care of C and H was something other than equally shared. Indeed, it seemed that both parties ultimately agreed that their share was roughly 50%, although the father thought his share may have been slightly more.
The respective share in relation to O was more problematic. The father had claimed that his percentage of care of O was 90-100% whereas the mother claimed she undertook between 65- 75% of the care for O. Clearly these claims are incompatible. Neither parent was an impressive witness, and, as I noted at the outset, both tended to grossly overstate their role with respect to the children.
The mother agreed that the father washed some items of O’s daily, although she also did washing for O as well as the other children several times a week. The father had bought some school clothes for O during the relevant period. O’s Principal wrote of both parents having attended meetings and demonstrating an interest in O’s educational programs.
The parents agreed in their evidence that during the relevant period the father shared a room with O and that he usually provided most of the care for O, especially in relation to his feeding, bathing and toileting. I consider that the role of the father, especially as nighttime carer for O, should be given some weight.
I therefore find that the percentage of care for the relevant period is as follows:
·C and H: the mother – 50% and the father – 50%
·O: the mother – 35% and the father – 65%
DECISION
The decision under review is set aside and the Tribunal determines the care percentages for the children for the period 6 September 2012 to 5 September 2013 to be
·C and H: the mother – 50% and the father – 50%
·O: the mother – 35% and the father – 65%
I certify that the preceding 49 (forty –nine) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ...............[sgd].........................................................
Associate
Dated 23 June 2014
Dates of hearing 9 April and 30 May 2014 Applicant In person Solicitors for the Respondent Mr S Davidson Other Party In person
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Care Percentages
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Child Support
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Relevant Period
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Actual Care Provided
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