Confidential and Child Support Registrar Confidential OTHER PARTY
[2014] AATA 153
[2014] AATA 153
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6000
Re
Confidential
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Confidential
OTHER PARTY
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 19 March 2014 Place Brisbane The Tribunal affirms the decision under review.
...........................Sgd..........................................
Dr P McDermott RFD, Senior Member
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 – Child did not live with other party for entire period in question - No evidence of care by the applicant - Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s2A
Child Support (Assessment) Act 1989 (Cth) ss 50, 50(1)(b)(ii)
Child Support (Registration and Collection) Act 1988 (Cth) s 110X(4)(h)
CASES
P v Child Support Registrar [2013] FCA 1312
Polec and Staker [2011] FMCAfam 959
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Child Support Guide, Australian Government
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
19 March 2014
INTRODUCTION
The applicant seeks the review of a decision of the Social Security Appeals Tribunal (”the SSAT”) that the other party had 100% percentage of care of their child from 1 January 2013. I am required to determine the percentage of care that the applicant and the other party had of the child from 1 January 2013.
PRIOR DECISIONS
From 1 July 2008 the applicant had 100% percentage of care of the child. On
21 January 2013 the representative of the applicant advised the Child Support Agency (“the CSA”) that since 1 January 2013 the child had ceased to be in the care of the other party. On 5 March 2013 a decision was made that both the applicant and the other party had 0% percentage of care of the child from 1 January 2013 so that the child support case was ended. On 11 April 2013 the other party lodged her objection to that decision.
On 20 June 2013 the objection was disallowed. On 23 August 2013 the other party made an application to the SSAT for a review of the objection decision. On 17 October 2013 the SSAT set aside the objection decision and substituted it with a decision that from 1 January 2013 the other party had 100% percentage care of the child. Also, on 23 October 2013 a decision was made by the CSA that from 21 August 2013 the other party had 100% percentage of care of the child.LEGISLATION
The Child Support (Assessment) Act 1989 (Cth) (“the Act”) provides for the determination of a responsible person’s percentage of care of a child. The Act provides that the Registrar must be satisfied about the pattern of care that a responsible person has had, or is likely to have, over the relevant care period.[1]
[1] Child Support (Assessment) Act 1989 (Cth) s 50.
CONSIDERATION
This application raises the consideration of the applicant’s and the other party’s percentage of care of the child from 1 January 2013 to 20 August 2013. In final submissions the representative of the applicant confirmed that the applicant did not seek review of the decision as far as it applied to the care provided by the other party after 23 March 2013. This concession is an acceptance by the applicant that after that date the other party’s percentage of care of the child was 100%.
The representative of the applicant made a submission that it was appropriate that the Tribunal make a decision that for the care period of 1 January 2013 to 23 March 2013 the applicant and the other party should each be regarded as having 50% percentage of care of the child. The Act provides that I can only revoke a previous determination and make a new determination for that period if I am satisfied that the responsible person, who is the applicant, has had a pattern of care during that period.[2] There is no evidence before me to base a decision that the applicant should be regarded as having 50% percentage of care of the child for that care period. The applicant did not give any evidence of any care that he provided to the child during that period. It is fair to say that the tenor of the evidence of the applicant was that during the period in question he made enquiries to the child to ascertain whether he had books for school. There was no evidence that the applicant provided assistance of any kind to the child. He confirmed that he did not purchase any of those books. He also confirmed that he did not provide any money to the child. There was certainly no evidence that the applicant provided any accommodation or food for the child. I therefore consider that for the period of 1 January 2013 until 23 March 2013 the applicant should be regarded as having 0% percentage of care of the child.
[2] Child Support (Assessment) Act 1989 (Cth) s 50(1)(b)(ii)
I am now required to determine the other party’s percentage of care of the child for the period of 1 January 2013 to 23 March 2013. There is authority which binds me that this percentage of care is not solely dependent upon whether during that period in the child continued to live with the other party. In Polec and Staker,[3] Hughes FM set out a list of matters that are necessary to consider when determining whether a person should be regarded as having the care of a child for the purposes of child support legislation:
(a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?
(b)To what extent does the person make arrangements for others to meet the needs of the child?
(c)To what extent does the person pay for the costs of meeting the needs of the child?
(d)To what extent does the person otherwise provide financial support for the child?
(e)To what extent does the child provide for his or her own needs or have those needs met from another source?
(f)To what extent is the child financially independent or financially supported from another source?
[3] [2011] FMCAfam 959, [56].
Recently, in P v Child Support Registrar,[4] Wigney J remarked that this list formulated by Hughes FM was intended to be “a workable guide to assist decision-makers in determining the extent of care”. His Honour remarked that the list “should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand”.
[4] [2013] FCA 1312, [107].
I have therefore to consider the evidence before me to examine what kind of care was provided by the other party to the child during the period in question.
The case of the applicant has been that from 1 January 2013 the child had ceased to be in the care of the other party. The representative of the applicant sought an adjournment of the hearing because of the unavailability of a witness who on 18 June 2013 had provided a statutory declaration in support of the applicant.[5] The representative stated that this witness was unable to give evidence because of reasons of his employment. However, no statement by the witness was provided to explain his unavailability. There was no indication before the hearing that this witness would be unavailable. Indeed, it was expected that this witness would be available to give evidence because arrangements had been earlier made to allow this witness, who lives in a regional area, to give telephone evidence without being required to personally attend the hearing.
[5] Exhibit A, page 52.
I declined the application for an adjournment. The applicant had adequate notice of the hearing at which two other parties were present; an adjournment would inconvenience those parties. I advised the representative of the applicant that this Tribunal was under a statutory obligation to proceed “quickly” in determining this application.[6] I should mention that the statutory declaration of the witness does not support the contention of the applicant that from 1 January 2013 the child had ceased to be in the care of the other party. In the statutory declaration the witness had confirmed that the other party had provided care to the child after 1 January 2013 and stated that when the other party was not in New South Wales she had driven the child where he needed to go (“school, friends, places, gym”). There are allegations in the statutory declaration of the witness that the other party did not return to her residence when she returned from her holidays on 23 March 2013. However, the applicant has now abandoned any reliance on such an allegation by accepting that from 23 March 2013 the other party provided care to the child. In any event, I informed the applicant that it would not be fair to the other party to place any weight on an allegation made by the witness in the statutory declaration where a witness was not available for cross-examination.
[6] Administrative Appeals Tribunal Act 1975 (Cth) s2A.
The applicant informed the SSAT that he had heard that the other party had started a relationship with a person and that since 1 January 2013 she had stayed at the house of that person. I do not consider that the applicant has provided any cogent evidence to support the truth of what is an allegation that the other party had ceased to care for the child on 1 January 2013. Both parents of the applicant have signed a statement which states that the claims that the other party has abandoned the child are untrue. The other party provided a statement in which she has described her movements during the period in contention and her account of matters which are relevant to the care that she provided withstood cross-examination by the applicant.
The person with whom the other party is alleged to have a relationship has also provided a comprehensive statutory declaration which denies this allegation. The person who made that statutory declaration is a member of a profession and would be well aware of the consequences of making a false declaration. The applicant did not seek to cross-examine this person whose evidence is unchallenged evidence which I regard as credible. I also mention that the statutory declaration of that person refers to various incidents after 1 January 2013 when the other party was at her residence, including when the applicant requested the other party to drive the child and his girlfriend to the birthday party of the applicant.
During the period in question the other party had provided accommodation to the child in a residence that she rented with another person. There is also evidence that after 1 January 2013 the other party had financially supported the education of the child. On 24 January 2013 the other party had paid the sum of $455 for the school expenses of the child including computer hire.[7] During the period in question the other party also made additional payments to the school on 20 February 2013 and 12 March 2013.[8]
On 6 February 2013 the other party paid the sum of $130 for a TAFE course for the child. There is certainly evidence that the other party went to New South Wales for a holiday for which she returned on 23 March 2013. However, the other party in her statement has stated that before leaving she had stocked the freezer and provided money to the child. There is also evidence of the other party remitting at least three instalments of funds for the household in March 2013 whilst she was on her holiday.[9]
[7] Exhibit A, page 70.
[8] Exhibit A, pages 70-71.
[9] Exhibit A, page 73.
After reviewing the evidence before me I have come to the conclusion that the other party provided care to the child from 1 January 2013 to 23 March 2013 and this care should be assessed as being a 100% percentage of care. It is true that the other party did not live with the child at all times during this period. However, I am satisfied that the other party did nevertheless provide care to the child during the period whilst she was on holidays in New South Wales and made arrangements for the care of the child. I have mentioned that the other party provided money for the household whilst she was on holidays. There is also evidence that the other party kept in touch with the child whilst she was on holidays.[10]
[10] Exhibit A, page 60, [29].
It is well settled by decisions such as Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[11] that the policy of an agency will be generally applied unless the application of the policy causes some injustice. Any such policy will provide guidance but is not binding upon this Tribunal. In evidence was an extract from the agency policy document, being the chapter 2.2.1 of the Child Support Guide.[12] That extract contained a list of the matters that Hughes FM set out in Polec and Staker.[13] There was no suggestion that the application of this policy document would cause injustice in determining this application. This policy document fortifies my conclusion that the other party provided care to the child in the period in contention. The other party paid for the educational needs of the child as well as meeting his recreational activities in paying his gym fees. The other party has also provided accommodation, food and education to the child.
There is certainly no evidence that the child is financially independent or supported from another source and the applicant confirmed that he did not provide any financial support to the child.[11] (1979) 2 ALD 634.
[12] Exhibit C.
[13] Exhibit C, page 2.
I should mention that I cannot give weight to the statutory declarations given by an individual who provided statutory declarations on 11 April 2013 and 29 May 2013.[14] Both the applicant and the other party have accepted that this individual was not a reliable witness. I am also of that opinion because the individual declared that both the other party and the child have been tenants of their residence for significantly different lengths of time in each statutory declaration. Those statements certainly cannot be given any weight having regard to the tenancy agreement which disclose that the tenants of the property are that individual and the other party.[15] I also mention that the child was a minor when that tenancy agreement was signed.
[14] Exhibit A, pages 86-88.
[15] Exhibit A, pages 77-80.
CONCLUSION
After my review of the evidence I consider that the other party had a 100% percentage care of the child during the period from 1 January 2013 to 20 August 2013.
DECISION
I affirm the decision under review.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member. ..........................Sgd...........................................
Associate
Dated 19 March 2014
Date of hearing 14 March 2014 Advocate for the Applicant Applicant's representative Solicitors for the Respondent Donna Smith, Department of Human Services Other Party By telephone
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