Crawford and Samuel (Child support)

[2018] AATA 4345

Crawford and Samuel (Child support) [2018] AATA 4345 (13 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013902

APPLICANT:  Ms Crawford

OTHER PARTIES:  Child Support Registrar

Mr Samuel

TRIBUNAL:Senior Member B Harvey

DECISION DATE:  13 September 2018

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS
CHILD SUPPORT – refusal to make departure determination – earning capacity of parent – unpaid leave – decision justified by caring responsibilities – no ground for departure – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

OVERVIEW

1. This is a review of a decision by the Child Support Registrar (the Registrar) to disallow Ms Crawford’s objection to an earlier decision, leaving that earlier decision unchanged.  That earlier decision was the Registrar’s refusal, on application by Ms Crawford, to make a ‘departure determination’ altering the way in which the Registrar worked out Mr Samuel’s liability to pay Ms Crawford child support in respect of their infant daughter [Child 1].

BACKGROUND

1. The relevant background is somewhat out of the ordinary.  Ms Crawford and Mr Samuel have not cohabited for any sustained period.  They were in a romantic relationship which commenced in or about September 2014.  Ms Crawford was aware and accepted that Mr Samuel ‘wished to have multiple relationships’.[1] Mr Samuel submitted that he and Ms Crawford ‘both had other partners’ and that [Ms A] ‘joined (the) polyamorous relationship in June 2016’.[2]

   [1] Per the fragment of her affidavit at page 222 of the papers.

   [2] Page 242 of the documents provided by the Registrar (the T documents).

2. At some point, Ms Crawford and Mr Samuel considered having a child; Ms Crawford submits that Mr Samuel offered to become monogamous with her and to marry her if she became pregnant. Ms Crawford did become pregnant.  It is agreed that the two discussed parenting options and planned that Ms Crawford would return to her work and Mr Samuel would take leave without pay to become the ‘stay at home dad’ to their child.

3. [Ms A] also fell pregnant at about the same time.  The evidence is that Mr Samuel and [Ms A] agreed that Ms A would also return to work after the birth and Mr Samuel would also be a stay at home dad for their child.

4. It would appear that Ms Crawford was aware that she and [Ms A] were both seeking to become pregnant and that Ms Crawford contemplated remaining in the polyamorous relationship.[3] However, in November 2016, Ms Crawford decided to leave the relationship.  Mr Samuel considers that she unilaterally ended the agreement that they had concerning the parenting for their child.[4]

   [3] See the email chain starting at page 223 of the T documents, with emails from 17 August 2016 and earlier.

   [4] See page 242 of the T documents.

5. As it happened, Ms Crawford’s and Mr Samuel’s child, [Child 1](the child in respect of whom the child support in this case is payable) and [Ms A]’s and Mr Samuel’s child, [Child 2], were both born on the same day in May 2017.  Ms Crawford retained full care of [Child 1].  Once [Ms A]’s paid parental leave ended, Mr Samuel commenced a period of two years unpaid parental leave from his employment as a [professional], consistent with the plan that he be a stay-at-home father.

6. On commencement of his unpaid leave, Mr Samuel elected to have his child support worked out on the basis of an estimate of his income for the balance of the financial year (rather than the default position, in which it is worked out with regard to a past financial year’s adjusted taxable income).  Unsurprisingly, he estimated his income for the rest of the year to be zero.  This resulted in the basic formula in the law producing the result that he was not liable to pay any child support; however, provisions within the law relevant to administrative assessments of child support operated to modify the result so that he was liable to pay what is known as the fixed annual rate of child support: $1,390 per year at the time.  That is a markedly lower rate than the $8,975 per year that he had been liable to pay immediately before he made his election.

APPLICATION AND CROSS-APPLICATION

1. On 26 October 2017, Ms Crawford lodged an application for ‘change of assessment’ with the Registrar. This is an application under Part 6A of the Child Support (Assessment) Act 1989 (the Act).  All references below are to that Act, unless otherwise specified.  Section 98B allows such an application if a payer or receiver of child support:

   is of the view that, because of special circumstances that exist, the provisions of this Act relating to administrative assessment of child support should be departed from in relation to the child…

2. Under section 98C, the Registrar may make a determination under Part 6A if satisfied that one or more of a statutory list of grounds exists, and if satisfied that it would be just, equitable and otherwise proper to make a particular determination. In other words, the first step is to decide whether a ground exists.

3. In her application, Ms Crawford selected the ground known as ‘reason 8B’ corresponding to the ground specified in subparagraph 117(2)(c)(ib).  That ground exists if:

   …in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

   …

   (ib)because of the earning capacity of either parent

4. Mr Samuel cross-applied, asserting grounds relating to high costs incurred for him to have contact with [Child 1] (they live approximately four hours Msive from each other) and high costs of self-support (relying on legal costs incurred).  The former relates to subparagraph 117(2)(b)(i); the ground exists if:

   … in the special circumstances of the case, the costs of maintaining the child are significantly affected:

   (i)because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or

5. The latter relates to clause 117(2)(a)(iii)(A); the ground exists if:

   in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:

   …

   (iii)commitments of the parent necessary to enable the parent to support:

   (A)himself or herself

6. The Registrar, at first instance on 15 January 2018, decided that no ground for departure existed and, on that basis, considered that the Registrar could not make a departure determination.  Ms Crawford objected and on 18 April 2018, the Registrar disallowed her objection for the same reasons.  Ms Crawford applied to the Tribunal for review the next day.

7. I conducted a telephone hearing from Adelaide on 13 September 2018.  Each parent gave sworn evidence.  

CONSIDERATION

1. There is no dispute that Mr Samuel has minimal income.  It is agreed that he is on leave without pay for two years from his employment as a [profession].  He said at hearing that he has some income from a blog; he described it as ‘negligible’ and there is no suggestion to the contrary.

Earning capacity ground

1. Ms Crawford submits that, as a [profession], Mr Samuel is choosing not to utilise a substantial earning capacity, and that a fairer assessment would have regard to that.

2. Subsection 117(7B) imposes strict conditions, all of which must be satisfied before the Registrar (or the Tribunal, standing in the Registrar’s place) can determine that a person’s earning capacity ‘is greater than is reflected in his or her income for the purposes of this Act.’  I reproduce the entire subsection as an attachment to this statement of reasons.  To paraphrase, the three conditions are that:

   (a)The person has a made a choice of the specified type (which is likely to have markedly reduced their income);

   (b)That choice was not justified by the person’s health or caring responsibilities; and

   (c)The person has not satisfied the Registrar that it was not a major purpose of the choice to affect child support.

3. There is no dispute and I find that Mr Samuel’s decision to take unpaid parental leave satisfies the condition in (a); this could be either via its subparagraph (a)(ii) or (a)(iii).

4. It is not suggested that the state of Mr Samuel’s health played any part in his decision.  As Ms Crawford pointed out, the Registrar both at first instance and on objection considered that Mr Samuel’s decision was not justified by his caring responsibilities. As I commented at the time, I am required to make my decision afresh.  I am not bound by the approach taken by the Registrar and in this particular respect, I disagree. 

5. In my view, decisions about how two parents of a child will arrange their time and effort to maintain the child are decisions made by the parents, not by others.  The parents, in making such choices, could reasonably be expected to take myriad aspects of life into account when making such a decision.  A choice which results in lower combined income for a time for the couple might appear to be one that ‘doesn’t make sense financially’ as Ms Crawford submitted, but is justified on a balance of all of the considerations of which finance is but one.  Equally, it is not to the point that there are available to the couple other alternatives that would be likely to produce a higher rate of child support liable to be paid by one of them for another child. [5]

   [5] See Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388

6. At the commencement of Mr Samuel’s leave, [Child 2] was less than [a year] old; I consider that a child of that age would have a continual need for substantial care.  There being no evidence to the contrary, I accept Mr Samuel’s evidence that he and [Ms A] made a choice that one of them would be a full-time carer for [Child 2].  I consider that it was their choice as parents to make; the fact that paid child care may have been an alternative in no way means that their decision was not justified on the basis of their duty to their daughter.  It also seems to me that if it had been [Ms A] who made that choice, vanishingly few people would consider the choice to be unjustified by her caring responsibilities.  Since a father and a mother bear exactly the same duty to support a child, it seems to me that there should be no difference if the couple instead agree that it will be the father who assumes the role of full-time carer.

7. Mr Samuel submitted that he and Ms Crawford had agreed to the same choice (but later, in changed circumstances, resiled from it) and that part of the reasoning, in respect of each of Ms Crawford and [Ms A], was a view that an extended period off work would be far more damaging to either of their careers than it would be to that of Mr Samuel.  Ms Crawford did not seek to dispute either submission.

8. In all of those circumstances, I find that Mr Samuel’s choice to take unpaid leave was justified by his caring responsibilities.  It follows that the condition in paragraph 117(7B)(b) is not satisfied and therefore that Mr Samuel’s earning capacity cannot be determined to be higher than his income as otherwise reflected for the purposes of this Act.  The ground for departure in Ms Crawford’s application for departure does not exist.  Ms Crawford did not submit that any other grounds existed.

9. I note in passing that Ms Crawford submitted that Mr Samuel, as a [profession], would have been aware of the way in which his choice would affect child support.  In response to his riposte that his choice had been made before his and Ms Crawford’s relationship had ended, she submitted that at the time, it would have been obvious to him that the relationship between them was ‘on rocky ground’ (when it was known that she and [Ms A] were both pregnant).  She did not go so far as to suggest his plan to be a stay-at-home father to both children was entirely to do with minimising the child support for her, but did submit that it would have been a major purpose.  Mr Samuel has consistently denied that affecting child support was any part of his purpose. 

10. I do not consider that this issue affects the question of whether Mr Samuel’s decision was justified by his caring responsibilities.  It is therefore unnecessary to determine whether it was a major purpose of Mr Samuel’s to affect the administrative assessment.   There was nothing to be gained by questioning Mr Samuel in detail concerning his purposes.  On the evidence before me, I do note that Mr Samuel’s stated reasons for his decision appear entirely plausible, while Ms Crawford’s submission appears rather less so, suggesting quite Machiavellian pre-planning and actions involving [Ms A] and [Child 2] in order to reduce his child support liability to Ms Crawford.

Grounds asserted by Mr Samuel

1. As noted above, in his cross-application Mr Samuel asserted the existence of two other grounds, each relating to certain costs incurred. The finding that Mr Samuel had zero income  led the Registrar to conclude that neither ground asserted by him exists.  The Registrar reasoned that the costs were not being borne by Mr Samuel as he has no income from which to bear them.  I acknowledge that a literal construction of the provisions may not require that the relevant costs be borne by either the payer or payee of child support.  However, in my view, it is clearly perverse for a ground to be found to exist that would tend to require a reduction in the rate of child support payable by Mr Samuel when the administrative assessment in force is having regard to his estimated $0 income.

2. As I noted during the hearing, the Act provides administrative mechanisms by which an assessment can be reduced from the fixed annual rate to the minimum rate and from the minimum rate to zero. Part 6A is expressly intended to deal with special circumstances which justify a departure from ‘the provisions of this Act relating to administrative assessment of child support’. I consider it inappropriate to employ Part 6A when the matters advanced as grounds are things which are adequately provided for in those very provisions.

3. I have concluded that no ground for departure exists.  The preferable decision on Ms Crawford’s application for departure was a decision under section 98F to refuse to make a determination.  The Registrar made that decision.  It follows that the correct decision on Ms Crawford’s objection was to disallow it.  Again, the Registrar did so. 

DECISION

The Tribunal affirms the decision under review.

ATTACHMENT

117 (7B)In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

(a)one or more of the following applies:

(i)the parent does not work despite ample opportunity to do so;

(ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;

(iii)the parent has changed his or her occupation, industry or working pattern; and

(b)the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

(i)the parent’s caring responsibilities; or

(ii)the parent’s state of health; and

(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.