Confidential and Social Security Appeals Tribunal and Anor

[2010] AATA 1051

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1051

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1091

GENERAL ADMINISTRATIVE DIVISION		)
Re		CONFIDENTIAL

Applicant

And SOCIAL SECURITY APPEALS TRIBUNAL  

Respondent

And             CONFIDENTIAL

Other Party 

DECISION

Tribunal Ms K Hogan, Member  

Date22 December 2010

PlacePerth

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal under review.   

..(sgd) Ms K Hogan..........

Member

It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to section 110x(4)(h) of the Child Support (Registration & Collection) Act 1988 (Cth).

CATCHWORDS

Child Support - assessment of percentage of care by Child Support Agency during a care period - terminating event - decision of SSAT affirmed

LEGISLATION

ChildSupport (Assessment) Act 1989 – Part 5  Division 1

AdministrativeAppeals Tribunal Act1975

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD

REASONS FOR DECISION

22 December 2010 Ms K Hogan, Member        

History

1.      The applicant and the other party are the separated parents of a daughter (“the child”) born 26 July 1992.  The Child Support Agency (“the CSA”) assessment in place recorded the percentage of care for the child as 100% for the other party and 0% for the applicant.

2.      On 8 November 2008 the other party contacted the CSA advising that the child had moved out of home to commence an apprenticeship but that the child was still being financially supported and cared for by the other party.

3.      On 16 March 2008 after contacting both parties the CSA decided not to change the care percentage used in the assessment of child support for the child.

4.      On 26 August 2009 the applicant contacted the CSA and asserted that the other party no longer had any care of the child, as it was his understanding that the child had moved out of home and was living independently of the other party.

5.      On 16 October 2009 the CSA decided not to change the assessment in place.  The applicant objected to this decision.

6.      On 9 December 2009 a CSA objections officer decided to allow the applicant’s objection to the decision made by the CSA on 16 October 2009.  The effect of the objections officer’s decision was that the percentage of care to be used in the child support assessment was 0% for the other party and the applicant as from 6 August 2008.

7.      On 22 December 2009 the other party lodged an appeal to the Social Security Appeals Tribunal (“SSAT”).

8.      The SSAT decided to set aside the decision under review and to substitute a new decision that there had not been a terminating event and that the percentages of care to be used in the child support assessment was to remain as 100% for the other party and 0% for the applicant.

9.      The applicant applied by these proceedings to review that decision.

Issue

10.     The issue to be considered by the Tribunal is whether there has been a change in the level of care that is provided for the child by the other party and if so the date of effect of such change.

Legislative Framework and Policy

11.     The legislation relevant to this decision is contained in the Child Support (Assessment) Act 1989 (“the Act”).

12.     Child support legislation is interpreted by CSA officers with the aid of the CSA Guide (“the Guide”).  The Tribunal is not bound by law to apply policy set out in the Guide, but provided the policy is consistent with the legislation, it is required to have regard to it and, in the ordinary course, follow it (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

Relevant Law

13.     The child support formula will take into account the cost of care when a parent has a least 14% care (52 nights over a 12 month period).  The formula will also take into account certain events described as “child support terminating events” that can affect the assessment.

Percentage of Care

14. Section 47A of the Act provides a simplified outline of percentage of care. It states:

·A person’s (whether the person is a parent or a non-parent carer of a child) percentage of care for the child for a day in a child support period is the percentage of care of the child that the person is likely to have during a 12 month period.

·A percentage of care for a child is as determined by an oral agreement or a parenting plan made by the parents of the child (or a parent and a non-parent carer), or as determined by a court order.

·The Registrar can make a determination of a person’s percentage of care for a child in certain cases (such as if there is no such agreement, plan or order, or if care of the child changes).

·A parent’s percentage of care for a child is used in section 55C to work out the parent’s cost percentage for the child.

·A non-parent carer’s percentage of care is used in section 40A to work out how much child support the non-parent carer is entitled to be paid for the child.

15. Section 48 of the Act sets out how to work out percentage of care. It states:

(1)A person’s percentage of care for a child for a day in a child support period is the percentage of care of the child that the person is likely to have during the period (the care period) of 12 months from:

(a)the day on which an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child; or

(b)      if one of the following events occurs:

(i)there is a change of less than 7.1% in the percentage of care for the child that the person has because of an agreement, plan or order mentioned in paragraph 49(a) or (b) (including a variation of such an agreement, plan or order);

(ii)there is a change of at least 7.1% in the percentage of care for the child that the person has, and the change alters the person’s cost percentage for the child;

(iii)the person’s percentage of care for the child falls below 14%;

(iv)the person’s percentage of care for the child increases to 14%, or above 14%;

(v)the person’s percentage of care for the child falls below 35%;

(vi)the person’s percentage of care for the child increases to 25%, or above 35%;

whichever of the following days is applicable:

(vii)if the Registrar is notified, or otherwise becomes aware, of the event within 28 days after the day on which the event occurs-the day on which the event occurs;

(vii)in any other care-the day on which the Registrar is notified, or otherwise becomes aware, of the event; or

(c)if the child is a relevant dependent child in respect of whom section 73A applies –the day specified in that section as the first day on which the parent is taken to have had the child.

Note:The Registrar is not entitled to amend an administrative assessment in respect of a person’s percentage of care unless the Registrar becomes aware of an event mentioned in paragraph (1)(b) (see subsection 75(2)).

(2)The percentage of care is to be worked out in accordance with this Subdivision:

Note:Generally, a person’s percentage of care for a child 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.

(3)If a person’s percentage of care worked out in accordance with this Subdivision is not a whole percentage:

(a)If the percentage is greater than 50% - the percentage is rounded up to the nearest whole percentage; and

(b)If the percentage is less that 50% - the percentage is rounded down to the nearest whole percentage.

16. Section 50 of the Act provides that where there is no agreement, plan or order the Registrar is to determine the percentage of care by having regard to pattern of care for the child:

(1)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 care period if there is no agreement, plan or order that allows such a percentage to be determined under section 49.

(2)In making the determination, the Registrar must take into account such period as is required in order for the Registrar to be satisfied that there is, has been, or will be, a pattern of care for the child.

(3)The Registrar may revoke or vary a determination made under this section.

17.     Relevant to issues raised in this matter is part 2.2.1 of the Guide:

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 … Additionally, in limited circumstances, a person may have care of a child who is not living with them.  For example, a person can provide care for a child who is at boarding school … A person who simply supervises the child … does not provide care.  Consideration is given to who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well is who is meeting the child’s costs, and not the accommodation arrangements themselves …”

18.     Relevant to determining percentage of care where there is no agreement, plan or order in place, part 2.2.5 of the Guide states:

Where no parenting plan, court order, written or oral agreement exists …CSA must determine the care percentage that a parent or non-parent carer is likely to have during the relevant care period … in making a determination 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.  CSA will determine the care percentage that the carer is likely to have during the next 12 months.  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 … CSA will amend the assessment only if the change in care percentages meets the requirement to amend an assessment because of a change in the care percentages.  If the new care percentages do not satisfy these requirements then the assessment will not be amended.

Terminating Events

19. Section 74 of the Act deals with terminating events. It requires the Registrar of the CSA to give effect to the happening of a child support terminating event upon notification of such an event.

20. Section 12 of the Act provides for the interpretation of the happening of a child support terminating event. Subsection 12(2AA) relevantly provides:

A child support terminating event happens in relation to a child if:

(a)Both of the parents of the child are not eligible carers of the child; and

(b)There are no non-parent carers entitled to be paid child support in relation to the child.

21. The definition of an eligible carer is set out at section 7B of the Act and subsection 7B(1) provides that “in this Act, eligible carer, in relation to a child means a person who has at least shared care of the child.”

22. Subsections 5(2) and (3) of the Act define the terms “regular care” and “shared care”.  Subsection 5(2) states that a person has regular care of a child if the person has at least 14% but less than 35% care during a care period.  Subsection 5(3) states that a person has shared care of a child if the person has least 35% but no more than 65% care during a care period.

23.     Relevant to determining terminating events part 2.10.3 of the Guide states:

CSA must amend or end a child support assessment if a ‘child support terminating event’ happens …

A terminating event happens in relation to a child if they leave the care of all parties to the child support assessment.  That is:

·both parents of the child cease to be eligible parents, i.e. they no longer have a least 25% care; and

·there is no non-parent entitled to be paid child support in relation to the child.

Where a child changes care and a parent or non-parent carer continues to provide at least 35% care, a terminating event has not occurred and the assessment continues.

Evidence and Contentions

24.     The SSAT was not represented before the Tribunal.

25.     The Tribunal was provided with a number of documents:

(a)      written submission from the applicant;

(b)written submission, including witness statements, from the other party;

(c)       section 37 documents.

26.     The Tribunal heard evidence from the applicant and the other party.

Applicant

27.     The applicant gave evidence that he had not had any contact with the child since she was eight years old and whilst he had no direct knowledge of her circumstances or her relationship with her mother he had no doubt that the other party was a loving mother.

28.     It was not disputed by the applicant that various receipts provided by the other party for a range of expenses, including but not limited to TAFE fees, car licensing fees, and purchase of white goods indicated that the other party had provided a range of financial support to the child throughout the period of her apprenticeship and whilst living in Perth and away from home.

29.     The applicant’s concern was regarding the necessity for some expenditure and the decisions regarding the way monies were spent.

“there is no reason for me to dispute that there was – that the other party had been paying some monies towards my daughter.  It’s really a case of necessity and whether or not I should have that liability of it.”

(Transcript p17)

30.     The applicant contended:

“I would say probably with budgeting assistance as far as, you know, a more sort of, “Okay, this is what you are earning.  This is how you are going to have to – you know, if you want to become independent in life, you are going to have to learn how to manage the money you have,” and coming from a father, this would have been my advice, and I would say, being a paying parent, that those type of decisions should have been taken into consideration.  I would have liked to have seen more of a help in budget control rather than, you know, spending money on what you want, we’ll still keep paying – “

(Transcript p14)

31. The applicant contended that there had been a “terminating event” within the meaning of the Child Support Act where a child is seen to be either living independently or earning such that the child would be deemed as living independently, making it unfair for a paying parent to continue payments.

“I believe, in this case, that that was a satisfactory element of what sort of happened here.  All the evidence that I have sort of read through shows a loving relationship between a mother and a daughter, and I’m not here today to dispute that that is the case.  It’s quite evident and quite commendable.  Again, I am pulling it right back to the actual – the actual law.  Throughout this period that’s in question here, I have not had any contact, or been allowed any contact, with my daughter so therefore I was not part of any sort of basic decisions, any life decisions, in relation to how funds were spent”.

(Transcript p4)

Other Party

32.     The other party gave evidence of the support she had given the child:

(a)      assistance with bond and rent;

(b)      payment of TAFE fees and charges;

(c)       purchase of various items required for her education and work tools;

(d)      purchase of household goods and items;

(e)      purchase of a motor vehicle;

(f)       assistance with covering the cost of day to day living.

(g)      signing off on her apprenticeship papers;

(h)being actively involved in assisting the child to secure alternative employment;

(i)being actively involved in decision making regarding the child’s accommodation arrangements whilst not living at home;

(j)        acting as guarantor on the lease arrangements;

(k)       including the child in family holidays and activities;

(l)taking an active interest and active involvement in life decisions involving the child through regular and at times daily contact with the child.

33.     The other party explained the difficulties the child faced gaining accommodation at the age of 15 and gave evidence of the process by which the child moved into rented premises and the lease arrangements which would have resulted in liability for the other party if “anything happened”.

Findings

34.     The Tribunal considered the evidence presented by the applicant and the other party and it also considered the documents referred to in paragraph 25.

35.     The Tribunal finds there was and currently there is no agreement, parenting plan or court order in place that determined the percentage of care between the parents.

36.     On 8 November 2008 the other party contacted the CSA advising that the child had moved out of home to commence an apprenticeship.

37. The applicant contacted the CSA on 26 August 2009 to assert that there had been a change in the level of care for the child. At the time the relevant care percentage in place was 100% to the other party and 0% to the applicant. Pursuant to section 48(1)(b)(viii) the Tribunal finds that the relevant care period is 12 months from the date of the notification namely from 26 August 2009.

38.     The Tribunal finds that the child lived away from the other party for the following periods:

(a)      8 November 2008 until March 2009; and

(b)      from approximately May 2009 until October 2009.

39.     The Tribunal finds the other party has provided regular financial support to the child over the period of her apprenticeship, for example, by:

(a)      assistance with bond and rent;

(b)      payment of TAFE fees and charges;

(c)purchasing various items required for her education and work tools;

(d)      purchase of household goods and items;

(e)      purchase of a motor vehicle;

(f)       assistance with covering the cost of day to day living.

40.     The Tribunal finds the other party has maintained responsibility in the making of arrangements and decisions regarding the child’s welfare for example, by:

(a)      signing off on her apprenticeship papers;

(b)being actively involved in assisting the child to secure alternative employment;

(c)being actively involved in decision making regarding the child’s accommodation arrangements whilst not living at home;

(d)      acting as guarantor on the lease arrangements;

(e)      including the child in family holidays and activities;

(f)taking an active interest and active involvement in life decisions involving the child through regular and at times daily contact with the child.

Application of Law

41.     The Tribunal first considered whether there had been a terminating child support event such as to warrant a change of assessment.  In this regard it considered the relevant legislative provisions and as previously noted the relevant sections of the Guide which state at part 2.10.3:

CSA must amend or end a child support assessment if a ‘child support terminating event’ happens…

A terminating event happens in relation to a child if they leave the care of all parties to the child support assessment.  That is:

·both parties of the child cease to be eligible parents, i.e. they no longer have at least 25% care; and

·there is no non-parent entitled to be paid child support in relation to the child.

Where a child changes care and a parent or non-parent carer continues to provide at least 35% care, a terminating event has not occurred and the assessment continues.

42.     It is not in dispute that the child has throughout the relevant period moved in and out of the other party’s home in order to take up her apprenticeship. 

43.     Whilst the applicant’s evidence was that he was not part of “any sort of basic decisions, any life decisions, in relation to how funds were spent”, the evidence does not support that the child was responsible for making those decisions.

44.     On balance the Tribunal finds that the evidence does not support the proposition that the child has taken the step of living independently.  In the Tribunal’s assessment the other party continues to provide at least 35% care to the child.  This is supported by the evidence presented both by the other party and from the documents, including witness statements, referred to in paragraph 25 regarding her ongoing and regular involvement in decision making and in providing financial support of the child throughout the period.

45. The Tribunal finds that the provisions in section 74 of the Act do not apply in this instance.

46.     The Tribunal then considered the question of whether there is any other basis upon which to change the assessment.  The Tribunal has found that there was and currently there is no agreement, parenting plan or court order in place that determined the percentage of care between the parents.  As such the Tribunal considered the evidence regarding the pattern of care.

47.     The applicant’s level of care is not in dispute as it is an agreed fact that his percentage of care level is 0%.  The relevant question then is whether there has been a change in the level of care provided by the other party.

48.     The Tribunal considered and subsequently finds on the evidence before it the other party has continued to have responsibility for making the arrangements for and decisions about the child’s welfare and her daily needs as well as meeting a significant amount of the child’s costs. In this regard the Tribunal was guided by the factors set out at part 2.2.1 of the Guide which as noted previously include:

“…who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well is who is meeting the child’s costs, and not the accommodation arrangements themselves…”.

49. The Tribunal finds there has not been a change in the level of care provided for the child by the other party and the provisions in section 48(1)(b) of the Act do not take effect.

50.     Decision

51.     The Tribunal affirms the decision of the Social Security Appeals Tribunal under review.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member

Signed: .(sgd) T Freeman...................
  Associate

Date/s of Hearing   13 September 2010 and 8 November 2010
Date of Decision   22 December 2010
Representative for the Applicant      Self represented  

Representative of the Respondent    Not represented

Representative for Other Party         Self represented