Confidential and Social Security Appeals Tribunal and Anor

[2010] AATA 945

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 945

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1769

GENERAL ADMINISTRATIVE DIVISION		)
Re		CONFIDENTIAL

Applicant

And SOCIAL SECURITY APPEALS TRIBUNAL  

Respondent

And         CONFIDENTIAL

Other Party

DECISION

Tribunal Ms K Hogan, Member

Date23 November 2010

PlacePerth

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

......(sgd) 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 – does the notion of school holidays include weekends when assessing relevant care periods- decision of SSAT affirmed.

LEGISLATION  

ChildSupport (Assessment) Act 1989

AdministrativeAppeals Tribunal Act1975

CASES

Blight -v- Secretary, Department of Family and Community Services and Anor [2002] AATA 1123

Quin-v- Secretary,Department of Family and Community Services [2002] AATA 1032

,

REASONS FOR DECISION

23 November 2010   Ms K Hogan, Member

History

1.      The applicant and the other party are the parents of a daughter (“the child”) born 17 May 2005.

2.      The applicant and the other party have joint responsibility for the major long-term issues in relation to the child and arrangements regarding her are subject to Consent Orders signed by the applicant and the other party on 22 February 2007. ((P) PTW1019/2007)

3.      The background of these proceedings may be briefly summarised as follows.

4.      On 6 October 2009 the Child Support Agency assessed the child support period in respect of the child on the basis of 72% to the other party and 28% to the applicant.

5.      On 19 October 2009 the applicant objected to the decision on the basis that since July 2009 he had 38 % of care.

6.      On 15 December 2009 an objections officer of the Child Support Agency found that the applicant’s level of care was 33%

7.      On 23 December 2009 the applicant sought review by the Social Security Appeals Tribunal (“the SSAT”) and on 29 March 2010, the SSAT affirmed the decision under review.

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

Issues

9.      The issues to be considered by the Tribunal are as follows:

9.1   What percentage of care should be attributed to the applicant and the other party for the care of the child?

9.2   Specifically, should the time spent during school holidays include weekends or not?

Evidence

10.     The SSAT was not represented before the Tribunal.

11.     The Tribunal was provided with a number of documents including the section 37 documents and written submissions from the applicant and the other party.

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

13.     Parenting orders dated signed by the applicant and the other party on 22 February 2007. ((P) PTW1019/2007) have operated since the child was 9 months old.

14.     It was not in contention that the Orders made in the Family Court allowed a percentage of care to be determined in respect of the child.

15.     The parties dispute the interpretation of Order 7 of The Orders.

16.     The Orders relevantly provide for care of the child as follows:

Order 2. The child will live with the other party from 5pm on Sunday until 6pm on Friday of each week.

Order 3. The child will live with the applicant from 6 pm on Friday to 5pm of Sunday of each week.

Order 5. The applicant will have the child for Christmas and Easter every alternate year  with the first year commencing in 2006

Order 6. The other party will have the child for Christmas and Easter every other alternate year with the first year commencing in 2007.

Order 7. The child will spend equal time with the other party and the applicant on public holidays and school holidays.

17.     It was not in contention that the child is now at pre-primary school and has school holidays.

18.     The applicant advised the Tribunal that he interpreted Order 7 of the Orders to mean that as the child, who commenced pre-primary in mid 2009, now had school holidays, that, in addition to the care he previously had, he now also had twelve (12) weeks of school holidays, being twelve (12) x five (5) weekdays.

19.     There has been some mediation between the parties but the Parenting Orders have not been formally changed.

20.     It was agreed between the parties that some of the time that the child had spent in the past was not in accordance with the Parenting Orders but that this reflected flexibility between the parties.

21.     The applicant sought to have the Child Support Agency reassess the Parental Care Percentage based on a definition of school holidays which would not include Saturdays and Sundays.

22.     The applicant was concerned that the Child Support Agency determination, assessing the Parental Care Percentage based on a definition of school holidays including Saturdays and Sundays would create a precedent that would detrimentally affect his relationship with the child.

23.     The applicant gave evidence that the sole purpose of the inclusion of clause 7 into the Parenting Order was to provide the child a balanced opportunity to spend time equally with both parents during her holidays from school.

24.     The applicant referred  to the Macquarie Dictionary definition of “school” as “an institution where instruction is given” and “holiday” as “a time or period of exemption from any requirement duty, assessment etc”. 

25.     The applicant contended that it was not unreasonable for an ordinary person to determine that school holiday was defined as a period of exemption from an institution where instruction is given and that in ordinary language, school holidays are simply those days when children have exemption from the requirement to attend school.

26.     The applicant contended that children do not attend school on Saturdays and Sundays and the Educational Department of Western Australia has no jurisdiction over the children on those days and do not employ teachers during the course of their ordinary duties to instruct children on Saturdays and Sundays.

27.     The applicant contended that by definition and convention, weekends cannot be considered a school holiday.

28.     The applicant contended that the Child Support Agency erroneously included weekend days in the calculation of school holiday access for the child in the determination of Parental Care Percentage and that the Child Support Agency determination was not in accordance with the intent of the Parenting Order and that it was unreasonable, erroneous and detrimentally impacted on the child’s opportunity to spend time equally with parents during her school holidays.

29.     The applicant acknowledged that school holiday periods by convention may include weekends and that the Government websites for school holidays do not only specify the Monday to Friday period. However, the applicant said that the Parenting Order refers to school holidays not the school holiday period.

30.     The applicant advised that he was not concerned by the nomenclature that might differentiate between the assessment of him as a parent with “regular care” or “shared care” and that the amount of money involved in the payment was not the issue for him.

31.     The applicant advised the Tribunal that he felt that if he did not argue against the assessment of the Child Support Agency that it would affect his access to the child.

32.     The other party interpreted Order 7 differently. 

33.     The other party told the Tribunal that she interpreted Order 7 to mean that the child would spend equal time with each parent in school holidays and on public holidays and that the school holidays included weekends.

34.     The other party provided a photocopied calendar of the nights and days the child has spent with the Applicant and with the other party.

35.     The other party concurred with the decision of the SSAT.

36.     There is no doubt from the papers provided to the Tribunal and the evidence of both parties that there has been a history of amicable negotiations between the parties.

37.     The Tribunal considers that what the applicant seeks is to reinforce his rights of access. This is not the same as the question of the way in which the Child Support Agency calculates the Percentage Care.

Legislative Framework and Policy

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

·           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.

39.     Section 48 of the Act sets out how to work out percentage of care.  It provides:

(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;

(viii)   in any other case –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.

40.     Section 49 of the Act provides:

The percentage (if any) of care of a child that parent or non-parent carer is likely to have during a care period is determined in accordance with the following agreement, plan or order if the Registrar is satisfied that the agreement, plan or order allows such a percentage to be determined.  

(a)    if the relevant application for administrative assessment for child support for the child is made under subparagraphs 25A(b)(ii) to (iv) (application by non-parent carer in relation to one parent):

(i)   an oral or written agreement, or parenting plan, between the parent, and a non-carer parent of the child that the Registrar is satisfied has been made; or

(ii)     a court order that relates to the parent and non-parent carer of the child, or that relates to the child;

(b)    otherwise:

(i)   an oral agreement between the parents of the child that the Registrar is satisfied has been made; or

(ii)     a parenting plan for the child that has been entered into by the parents; or

(iii)   a court order that relates to the parents, or that relates to the child.

41.     Whilst there is nothing in the legislation or the guide to specifically define school holidays, previous decisions of the Administrative Appeals Tribunal assume that the notion of school holidays includes weekends.

42.     In Blight -v- Secretary, Department of Family and Community Services and Anor [2002] AATA 1123 14 October 2002 the calculations regarding school holidays assumed each holiday week to be seven days.

43.     Similarly, Quin -v- Secretary, Department of Family and Community Services [2002] AATA 1032 22 November 2000 discussed periods of school holidays and calculations were based on the school holiday week being seven days.

44.     Whilst the above cases deal with entitlements to Family Tax Benefit and Family Payments, in neither case did Member Hallowes or Senior Member Purcell consider it necessary to define school holidays and/or to distinguish between week  days of school holidays and weekends of school holidays.

Findings

45.     The Tribunal considers that if there is a dispute between the parties regarding the interpretation of the Parenting Orders, then that is a matter for the Family Court and not a matter for the Administrative Appeals Tribunal, which has no jurisdiction over the rights of either parent regarding access to the child.

46.     The Tribunal interprets Orders 2 and 3 to be subject to Order 7.

47.     The Tribunal finds that the relevant care period is 19 October 2009 to 18 October 2010.

48.     In the relevant care period above, 19 October 2009 – 18 October 2010, school holidays in Western Australia are:

18 December 2009 – 31 January 2010 (45 days);

2 April 2010 – 18 April 2010 (17 days);

3 July – 18 July 2010 (16 days);

25 September 2010 – 10 October 2010 (16 days);

This is a total of 94 days.

49.     The Tribunal interprets Order 7 to mean that public holidays are subject to school holidays.

50.     In the year from 19 October to 18 October 2010, the applicant has the following nights of care:

School holidays: 94/2 = 47

Public holidays: (10 -3 [public holidays in school holidays])/2 = 3.5

School term weekends: 36 weekends = 72

51.     This is a total of 124 nights (33%) for the applicant and 241 nights (67%) for the other party. 

52.     Under section 55C of the Act a care percentage of 28% and a care percentage of 33% both give a cost percentage of 24%, so the change in the level of care would not affect the annual rate of child support payable for the child.  Accordingly, the Tribunal finds that there was no change in the applicant’s level of care from 19 October 2009.

Decision

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

I certify that the 53 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  29 September 2010
Date of Decision  23 November 2010
Representative for the Applicant         Self represented 
Representative for the Respondent     Not represented  
Representative for the Other Party      Self represented