CONFIDENTIAL ONE and PRINCIPAL MEMBER, SOCIAL SECURITY APPEALS TRIBUNAL

[2010] AATA 713

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 713

ADMINISTRATIVE APPEALS TRIBUNAL        )

)          No 2010/0666

GENERAL ADMINISTRATIVE DIVISION		)
Re		CONFIDENTIAL ONE

Applicant

And Principal Member, SOCIAL SECURTY APPEALS TRIBUNAL

Respondent

And CONFIDENTIAL TWO

Party Joined

DECISION

Tribunal Ms G Ettinger, Senior Member 

Date20 September 2010

PlaceSydney

Decision The Tribunal sets aside the decision of the SSAT and in substitution decides that the period for relevant care of J is 27 February 2009 to 26 February 2010, and that the percentage of care the father gives is 85% while the percentage of care the mother gives J is likely to be no more than 15%.  

.................[SGD].............................

Ms G Ettinger
  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 – parents of 15 year old child – existing Court Order in November 2008 providing for alternate weeks of care by each parent – order not adhered to – child spends most of his time with the father – further Consent Orders December 2009 decide that the child live with the father and spend certain times with his mother – decision of the SSAT set aside – substituted new percentage further in favour of applicant.

Child Support (Assessment) Act 1989 (Cth) ss 52, 53

REASONS FOR DECISION

20 September 2010  Ms G Ettinger, Senior Member

1.      The Applicant and the Party Joined are the parents of two teenage boys. The dispute between the parents which has been the subject of various orders in the Federal Magistrates Court, and is before this Tribunal, is about the percentage of care each gives J, who is the younger of their two children, and who was born on 10 September 1994. He had, at the time of handing down this decision, attained the age of 16 years.

2.       The dispute involves the child support regime in relation to J, who is dependent on the percentage of care each parent gives. 

3.      The Child Support Agency (CSA) does not generally appear at these hearings, and did not on this occasion. Neither did the Party Joined, the mother, who had, however, been notified of the date and time of the hearing. Instead, I had before me the Applicant, and the usual bundle of section 37 documents which included the decision of the Social Security Appeals Tribunal (SSAT), from which the Applicant appeals. Certain of the crucial documents had missing pages which were supplied by the solicitor who had previously represented the Applicant. The solicitor was unable to represent the Applicant at the hearing before me because legal aid had not been granted. However I am indebted to him for his assistance with supplying documentation, including a report of a Family Consultant dated 9 December 2009, and Consent Orders made in the Federal Magistrates Court, which were made on 16 December 2009.

4.      I found that the percentage of care given by the father of J to him was 85% and that given by the mother was likely to have been no more than 15% in the relevant period. My reasons follow.

THE ISSUE TO BE DECIDED

5.      The issue I must determine is the amount of care each of the parents gives J, and if there has been a change in the level of care, the date of effect of that change in care.

THE LEGISLATION

6.      The relevant legislation is the Child Support (Assessment) Act1989 (Cth) (the Act).

7. The mechanisms for altering the percentage of care involve sections 52 and 53 of the Act. Section 52 deals with the power of the Registrar to make an interim determination.

THE EVIDENCE AND CONCLUSIONS

8.      The Applicant gave oral evidence at the hearing, and told me that he was appealing against the decision of the SSAT of 22 January 2010, because he did not agree with its finding that the percentage of care he gave J from 27 February 2009 was 51%, and that J’s mother gave him 49%.  

9.      The SSAT had set aside the decision of the Child Support Agency, (CSA) which had on 4 March 2009, found, based on the Terms of Settlement between J’s parents dated 27 November 2008, that the parents of J would give equal care to him in alternating weeks. The Applicant told me that the arrangement had worked for one week only. He said that by the end of 2008, J was spending almost fulltime with him, and that when he tried to send J to his mother’s every second weekend, J refused to go. He said J had been running away from his mother’s place since he was 12 years old. He accepted that J went to his mother’s every second weekend to get changed for sport, being club cricket and rugby league, but said that he sometimes stayed overnight at a friend’s house instead of at his mother’s. The Applicant said that his solicitor told him the mother could apply for a non-compliance order.

10.     The Applicant also commented adversely on the mother’s diary which commences at T7/68 of the T-documents, and where she recorded from 1 January 2009 to 12 August 2009 the days on which J stayed with her. The SSAT found from the diary that J stayed with his mother for 111 of the 124 nights for the period in which she kept the diary, and accepted that the records were accurate. The SSAT preferred the mother’s written record over the father’s oral evidence regarding the child’s stay. The Applicant submitted the record did not reflect the actual situation because J lived with him, and he accordingly did not need to keep a diary.

11.     Following the non-compliance with the Consent Order of 27 November 2008, and the change in arrangements, the Applicant notified the Child Support Agency (CSA), of the change in care on 27 February 2009. The notification by the Applicant regarding the change in care arrangements from the Court Order of 27 November 2008 which occurred on 27 February 2009, is more than 28 days after the Court Order. Accordingly, for purposes of section 48 and 74A of the Act, the event which was the Applicant’s notification to the CSA of the change in care occurred on 27 February 2009, and therefore, the period for relevant care is 27 February 2009 to 26 February 2010.

12.     I noted that following a report of a Family Consultant dated 9 December 2009, a further Consent Order was signed by J’s parents at the Federal Magistrates Court on 16 December 2009. The report of the Family Consultant recommended that the parents have equal shared parental responsibility for J, and recommended that J live with his father and spend significant time with his mother. Amongst other things, the Order specified relevantly:

That [J] live with the Father.

That [J] spend time with the Mother as follows:

a. On an alternating basis as follows:

i. In week one from the conclusion of school on Friday until the commencement of school on Monday; and

ii. In Week two, from the conclusion of school on Wednesday until before school on Thursday;

The Christmas periods were to be shared.

13.     I had the mother’s diary before me, and did not have any oral evidence from her. I also had the benefit of the further Consent Order of 16 December 2009 and the report of the Family Consultant to assist me in making the correct or preferable decision.

14.     According to that report J lived with his father and spent time with his mother fortnightly from Friday night until the commencement of school on Monday morning. It further went on to recommend that J live with his father and spend significant time with his mother. It was these recommendations upon which the Consent Order was formulated. I based my calculations regarding the extent of the shared care on these and on both the written and oral evidence before me.

15.     In coming to a decision regarding the level of care each parent gave J in the relevant period, I also considered the legislation, which is the Child Support (Assessment) Act1989 (Cth), (the Act). Section 49 of the Act enables a percentage of care to be determined under a court order. As the Applicant claims that the actual care given to J varies from the Consent Order of 16 December 2009, I must consider whether section 52 of the Act applies.

16. The mechanisms for altering the percentage of care involve sections 52 and 53 of the Act. Section 52 deals with the power of the Registrar to make an interim determination. It provides as follows:

(1)       The Registrar may 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:

(a)       there is an agreement, plan or order that allows such a percentage to be determined under section 49; and

(b)       a parent or non‑parent carer of the child does not agree that the care of the child that is actually taking place is in accordance with the percentage so determined; and

(c)       in the circumstances of the case, the percentage so determined would result in an unjust and inequitable determination of the level of financial support to be provided by a parent for the child; and

(d)       a parent or non‑parent carer of the child has taken reasonable action:

(i)        to seek to reach agreement; or

(ii)       to seek a court order; or

(iii)      to enforce a court order;

about the care of the child; and

(e)       a parent or non‑parent carer of the child applies for the determination.

17.     Section 48 of the Act is also relevant in working out percentage of care. 

18. Section 53 provides as follows:

(1)       The Registrar may determine the percentage (if any) of care of a child that a parent or non‑parent carer is likely to have during a care period if:

(a)       a parent (the first parent) was to have at least regular care of the child during the relevant care period under an oral agreement, parenting plan or court order; and

(b)       the first parent has no care, or has a pattern of care that is less than regular care, of the child despite the other parent or a non‑parent carer making the child available to the first parent; and

(c)       the other parent or a non‑parent carer of the child applies for the determination.

Note:   If the Registrar refuses to make a determination under this section, the Registrar must give the applicant a notice under section 54.

(2)       The determination must specify, in accordance with subsections (4) and (5), the first day in the child support period to which the determination is to apply.

(3)       The determination applies to the day specified, and later days in the child support period.

(4)       If the Registrar is satisfied that the other parent or the non‑parent carer who applied for the determination failed, within a reasonable period, to notify the Registrar that the first parent had no care, or less than regular care, of the child during the relevant care period, the day specified must be the day on which the determination is made.

(5)       Otherwise, the day specified must be:

(a)       if the first parent never established a pattern of care in accordance with the oral agreement, parenting plan or court order—the day on which the plan or court order was entered into or made; or

(b)       if the first parent established a pattern of care in accordance with the oral agreement, parenting plan or court order, but later ceased the established pattern of care—the day on which the parent ceased the previously established pattern.

(6)       To avoid doubt, a parent never establishes a pattern of care if:

(a)       the parent could not have established the pattern of care until a particular period that occurs later in the child support period; and

(b)       the parent does not establish that pattern during that particular period.

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

(8)       If the Registrar could make a determination under section 52 and this section in respect of the percentage of care for a child, the Registrar must make a determination under this section and not section 52.

19. I have noted pursuant to section 53(8) of the Act that where a decision can be made under section 52 or 53 of the Act, the decision regarding the percentage of care must be made pursuant to section 53. Accordingly it is under that section which the Tribunal makes this decision. Section 53 of the Act allows changes to be made to a determination to reflect the reality of a situation where there is significant discordance between an existing determination and the reality of the situation as is the case here.

20.     Accordingly, I find from the evidence that J spends most of his time with his father apart from some weekends which he spends with his mother and/or friends. I am satisfied from the evidence before me that the percentage of care given to J by his father must be at least 85%, and that given by his mother is likely to be no more than 15%. My decision follows.

DECISION

21.     The Tribunal sets aside the decision of the SSAT and in substitution decides that the period for relevant care of J is 27 February 2009 to 26 February 2010, and that the percentage of care the father gives is 85%, while the percentage of care the mother gives J is likely to be no more than 15%.  

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed: ................[SGD]...........................................................
  Associate

Date of Hearing  2 July 2010
Date of Decision  20 September 2010
Applicant  Self Represented          
SSAT & Party Joined                No appearance