CONFIDENTIAL and SOCIAL SECURITY APPEALS TRIBUNAL
[2010] AATA 892
•12 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 892
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5412
GENERAL ADMINISTRATIVE DIVISION ) Re CONFIDENTIAL Applicant
And
SOCIAL SECURITY APPEALS TRIBUNAL
Respondent
And
CONFIDENTIAL
Third party
DECISION
Tribunal Ms N Isenberg, Senior Member Date12 November 2010
PlaceSydney
Decision The decision under review is set aside and substituted with a decision that the father’s percentage of care for the period 29 January 2009 to 28 January 2010 is 85 per cent, and the mother’s percentage is 15 per cent.
..................[sgd]...................
Ms N Isenberg
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
CATCHWORDS
CHILD SUPPORT – assessment of percentage of care by Child Support Agency during a care period – child resides at boarding school during school terms – child resided with father during school holidays – school listed both parents as carers – both parents contributed to care of the child – Social Security Review Tribunal assessed the percentage of care as 50/50 between mother and father – decision under review is set aside and substituted.
Child Support (Assessment) Act 1989 (Cth), ss 52, 53
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
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
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86
REASONS FOR DECISION
November 2010 Ms N Isenberg, Senior Member BACKGROUND
1. The Applicant and the third party are the father and mother, respectively, of a 16 year old girl, R. They are in dispute about the child support regime in relation to the child.
2. On 29 January 2009 the father notified the Child Support Agency (CSA) that since 26 September 2008 he had solely provided for R, and that she had lived with him when she was not at boarding school. He was informed by the CSA that documents supporting his submission were received too late, and the CSA decision was that R was to be considered as 100 per cent in the care of the mother. The father appealed to the Social Security Appeals Tribunal which decided that the care during the period in question was 50/50 with effect from 29 January 2009 to 28 January 2010.
3. The father now seeks review of that decision.
ISSUE TO BE DECIDED
4. The issue I must determine is the percentage of care each of the parents gave R during the relevant period.
LEGISLATIVE SCHEME
5. Child Support (Assessment) Act 1989 (the Assessment Act) makes provisions for determining the financial support payable by parents for their children. In these Reasons I refer to the version of the Assessment Act that was in force as at 29 January 2009.
6. Central to the statutory formula used to assess the annual rate (if any) of child support payable by a parent is the concept of “percentage of care”. Where there is no agreement, plan or order, the Registrar must determine the percentage (if any) of care of a child that a parent, or non-parent carer of the child, is likely to have during the relevant period: s 50 of the Assessment Act. A person's percentage of care for a day in a child support period is the percentage of care that the person is likely to have during a 12 month period, commencing from the date an application is made for a person to be assessed in respect of the costs of a child, or else, the day any one of the six events listed in s 48(1)(b) occurs: s 48(1) of the Assessment Act. Generally, a person's percentage of care is 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: s 48(2) of the Assessment Act.
7. Interpretation of child support legislation is aided by the Guide to the Administration of the Child Support Scheme (the Guide). The Guide provides at 2.2.5 Percentage of care determined by CSA based on actual care, relevantly:
Where no written or oral agreement, parenting plan or court order exists, or one does exist but CSA is unable to use it to determine a care percentage, CSA must determine the care percentage that a parent or non–parent carer is likely to have during the relevant care period (section 50 of the unamended Act). …
In making a determination about a parent’s percentage of care of a child, CSA will take into account such period of time as is necessary to determine whether there is, has been or will be an identifiable pattern of care for the child (section 50(2) of the unamended Act).
CSA will determine the care percentage that the carer is likely to have during the care period. In doing this, CSA may consider patterns of care that have been established in recent months if it is satisfied that the pattern is likely to continue. …
When considering patterns of care CSA will seek information on the care provided. The care may follow a certain pattern during school terms and different arrangements during school holidays. Generally, for school age children at a public school there are 20 fortnights a year of school time and 6 fortnights a year of school holidays. …
When considering a change in care, CSA will consider the reason for the request for a new care calculation. If there has been a disruption to the pattern of care, CSA will need to identify the event that is relevant. The event may be used to determine the commencement of the care period. CSA will need to determine the care that is likely to occur in the care period. Not all disruptions will result in the calculation of a different care percentage.
If there is a change in the care arrangements such that a parent now has more care, but the three tests listed above do not assist CSA to determine if there has been a change in the pattern of care, then CSA will consider all the information provided to determine if there has been a change in the pattern of care. …
When considering whether the increased care reflects a change in the pattern of care, CSA will consider the information presented or obtained to determine the care that is likely to be provided by the parents in the care period. …
There may be situations where CSA is advised that the care of a child will change or has changed but no pattern of care exists that will assist in determining the care percentages for a new care period. In these situations, CSA will consider the information provided by the parents to decide whether care percentages can be determined. If the information provided by both parents is consistent, then CSA will determine the care percentages based on that information. …
If different information has been provided by the parents, CSA will consider whether there is some common expectation about future care. If the information provided shows that a different care percentage would be calculated, and there is agreement to a certain point then CSA will use that ‘point of agreement’ to determine the new care percentage.
If the information is such that a pattern of care cannot be identified and there is no common expectation about future care, CSA will assume that the state of affairs known to it at the time the assessment was made is continuing. CSA will determine that the care percentage for the care period will be the same as that previously determined. As there is no change to the care percentages, the assessment will not be amended. …
7. Whilst I am not bound to apply policy guidelines of the kind referred to in 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.
CONSIDERATION
8. The parents both gave evidence and each provided a number of witness statements in support of their respective positions.
9. It was common ground that there was no formal agreement in place as to the living arrangements of R and her three siblings, and that the children could live with whomever of the parents they chose. This was the arrangement notwithstanding that at the time of separation R was only 12, and her younger sibling about 10. The father said that at his home R had her own room with a bed, built-in wardrobe, cupboards and a desk.
10. It was also agreed that since May 2010, R had returned to live with the mother and, since that time, the mother’s percentage of care has been 100 per cent.
11. The father said that some time prior to the school holidays in September 2008 R had telephoned and asked if she could come to live with him. He did not think she had talked to the mother about it. He thought R had said that she wasn’t getting much family life because her mother was often not at home. The mother said that in about October or November R had asked her about a costume she required for a school elective subject she proposed to take the following year, which would cost about $300-$400. When she refused because she was unable to afford it, R was angry and this is what had precipitated R’s request to live with the father.
12. R was at boarding school in another town and when the holidays came about she caught the bus home to the town where both her parents live. The father said that during those holidays she stayed at his home exclusively, and caught up with old school friends. The mother’s evidence was that during those holidays R stayed at her home for a couple of nights and did not stay a full week at a time at either parent’s home.
13. At the end of the holidays the father put her back on the bus to boarding school. Within a week or so he wrote to the school advising that from then on he was the primary care giver and point of contact. From that term onwards he would deposit an allowance into her account fortnightly. He opened an account for her at a pharmacy for which he was responsible. During term they would speak on Friday and Saturday and she would tell him about her week at school.
14. At the end of term he collected her from school so she could transport all her gear from the whole year. He brought her and a friend home and the friend stayed at his home for a few days. On 13 December he took R to the mother’s for the day. He also took her to the mother’s at Christmas where she remained for about four hours. The mother said that between 16 and 22 December R was in Dubbo with friends doing Christmas shopping. She stayed with Ms P, a family friend, who also has a teenage daughter. The father said that from 29 December 2008 R was able to obtain casual employment at the local IGA supermarket, and worked several shifts a week. For the remainder of the holidays she stayed at his home, seeing old school friends, having sleepovers at his home and elsewhere. When she was staying at a friend’s house she would ask his permission to do so. He provided her with money during that time. The mother said that R stayed at her home for about seven to eight nights ‘here and there’ over the holidays.
15. At the commencement of the 2009 school year he took her to school, via Dubbo, where they stopped off to buy new bedding, clothes and underwear. At the school he signed an enrolment form. He stayed with her for a couple of hours to settle her in. He resumed making deposits into her account.
16. During the term if there was an excursion or other activities R would phone the father to ask for payment. He said he would enquire if she could fit the activity into her schedule. A couple of times in 2009 he was unable to afford the request and, it seemed to him, R was ‘not upset’.
17. The pattern remained the same for the balance of the 2009 school year. To his knowledge she saw nothing of her mother that school year. The mother said though that she and R were in ‘constant contact’ via text messages, Facebook and the like. The mother said that on two occasions during 2009 the school had occasion to phone her, because R had sustained some injury and required her permission in the event an anaesthetic was required. When home they would meet for lunch, and R would even sometimes come to the mother’s place of work. The mother thought R kept this from her father.
18. The mother said that R usually spent about a week staying with friends each holiday: for example, in July 2009 she spent a week in Newcastle and in October 2009 she spent a week with the mother’s father and brother in another town.
19. At the end of school the father arranged for his sister-in- law to collect R, and she remained with her and the father’s brother for a few days. The father understood R only saw the mother in a park sometime after the end of school and before Christmas. The mother said though that R and a friend visited for about four days. Again, that year, R saw her mother for about four hours on Christmas Day.
20. R asked the father if she could stay with the father’s (other) daughter in Newcastle for about a week in January. While she was away she chipped a tooth, for which the father paid. She had apparently asked the mother if it was covered by the mother’s health insurance, but it was not. The father said the mother made no contribution. While away R asked if, on her return to Dubbo, he permitted her to be collected by the parents of a friend and go to their home in another town for about a week.
21. At about the end of December 2009 R had also asked his permission to go with the mother and her siblings to the Gold Coast between 18 and 23 January. The mother said that she and R had discussed it in about September/October because of the need to make arrangements in advance.
22. On her return from Queensland, R returned to the father’s home until the commencement of the 2010 school year. On return to school the arrangement was as before until about the middle of April. At that time, R was going to a debutante ball, apparently arranged through the school. The father gave her a $300 budget and she went to a ‘bridal shop’ in Dubbo and purchased a dress. He enquired of R if the mother was attending the debutante ball, and he received a text message asking him if it was alright for the mother and her brother to attend. He telephoned R and said that he would not attend if the mother did because ‘she causes trouble’. R hung up on him and he tried to contact her again without success. His present wife, C, apparently phoned R and admonished her for ‘speaking to her father like that’, which suggests there was something more to the conversation between father and daughter than was disclosed to me. R told C that she wanted to move back to the mother’s. The following weekend the mother went to the school to collect R from school and took her to the father’s home to collect her things. This did not progress smoothly but that is not relevant to the matter before me. The father stopped the pharmacy account and the fortnightly deposits. It was from that time that the mother had the child support arrangements changed because R went to live with her mother.
23. The mother said that the family home, where she had been living since the separation in October 2006, was finally sold in November 2009. Because finance was hard to arrange, she was not immediately able to contract to buy another home, and until 20 April 2010 she and R’s two siblings lived with a friend. She said R did not stay because space was limited, although they did go camping together overnight once during that period.
24. Each parent provided evidence of their financial support of R: for example, the mother produced R’s Youthsaver account statements for 11 August 2008 to 14 September 2009 which shows deposits of about $25 per fortnight. The father produced an extract of R’s Youthsaver account from 19 February 2009 to 13 August 2009 which shows cash deposits of about $45 per fortnight. Comparing the same period, the mother deposited about $350 and the father about $650. He also produced the pharmaceutical accounts for December 2009 and February 2010.
25. The mother said that they had each bought R numerous items and had contributed equally, giving what they could as required.
26. Both provided information from the school, which largely served to demonstrate the dilemma a school faces when both parents assert that he or she is the primary carer. The father produced a re-enrolment form for the 2009 year, but the mother questioned why such a form was necessary as enrolments went from year to year without ‘re-enrolment’. From the consecutive fax numbering a copy of the document was clearly sent by the school to C. I do not doubt its veracity. In contrast, in February 2009 the school boarding co-ordinator wrote that R was enrolled by the mother and all correspondence in relation to R was sent to the mother. In August 2009 the Principal wrote that R was listed in the College’s files as living with the father and that he, the Principal, had verified that with R that day. At about the same time the father was asked to formally explain R’s absence for a day. By March 2010 both parents were recorded on the school’s database to receive copies of all correspondence and reports.
27. Both parents provided statements from other people, which were contradictory and largely unhelpful in the absence of evidence as to what period they related to and how they knew of R’s whereabouts. Some statements were given limited weight because the author was clearly aligned with one party or the other. One statement to which I do attach some weight is that of Ms P, who the parties agreed was a family friend of both the father and the mother. Her statement is undated but she wrote that R lived with the father when home from school.
28. The mother provided a statutory declaration by R. I viewed this with some reservation, having regard to the circumstances in which R had first left the mother’s home and then left the father’s home, namely after a dispute on each occasion. For the moment she resides with the mother.
29. While percentage of 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, the Guide also states that in making a decision about percentage of care, the CSA may take into account such period of time as is necessary to determine a pattern of care by each parent – that is, the amount of time during both day and night that each parent cares for the child as well as who is responsible for making arrangements for, and decisions about, the child’s welfare. The evidence is that both parents share this responsibility, albeit in different percentages.
30. I find that following a disagreement with the mother in September/October 2008 the father became the main carer for R from the commencement of those school holidays. However it was not until 29 January 2009 that he notified the CSA of that change. Consequently he is not entitled to a change in the child support arrangement until that date: s 48 of the Assessment Act.
31. The Guide notes that care is generally worked out on the basis of the number of nights. Clearly, in this case, where the child is at boarding school funded by neither parent, calculation of ‘nights’ becomes largely irrelevant. On the basis of the evidence before me, I accept that during the school holidays R was ‘based’ at her father’s. She might have spent some time with her mother, but this was limited. On the mother’s evidence there was no capacity for R to stay with her at all between November 2009 and April 2010. R worked casually while staying at her father’s, saw friends and had some holidays with other people. The father’s evidence was that before meeting up with others she asked his permission to do so. I observe that for that it was the father who either provided or arranged for her transportation to and from school.
32. From the available evidence it appears that both parents provided money during the school year, with the father providing about twice what the mother provided. There was evidence that the father was also responsible for pharmaceutical bills. The school evidence was inconclusive, but I prefer the evidence from the Principal that R was listed in the College’s files as living with the father, especially as he said he had confirmed that with R. I note though, that from the mother’s evidence it was she the school contacted when R was injured. I also note the mother’s evidence that both parents had each given R ‘numerous items’ and had contributed equally as best they could.
33. I accept that the father was the main carer for the relevant period. Balancing the evidence, notably, that R lived with him when not at school, that he had main responsibility for her whereabouts, and his greater financial contribution during the school, I find the father’s percentage of care to be 85 per cent, and the mother’s 15 per cent.
DECISION
34. The decision under review is set aside and a decision is substituted that the father’s percentage of care for the period 29 January 2009 to 28 January 2010 is 85 per cent, and the mother’s percentage is 15 per cent.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ..............[sgd]......................................................
AssociateDate of Hearing 25 October 2010
Date of Decision 12 November 2010
Solicitor for the Applicant Self-represented
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