GWNS and Child Support Registrar (Child support second review)
[2016] AATA 576
•5 August 2016
GWNS and Child Support Registrar (Child support second review) [2016] AATA 576 (5 August 2016)
Division
GENERAL DIVISION
File Number
2016/0068
Re
GWNS
APPLICANT
And
Child Support Registrar
RESPONDENT
And
DNVW
OTHER PARTY
DECISION
Tribunal Senior Member A C Cotter
Date 5 August 2016 Place Brisbane The decision under review is affirmed.
......................[Sgd]..................................................
Senior Member A C Cotter
It is noted that the 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 (Cth).
CATCHWORDS
CHILD SUPPORT – Child Support Registrar – percentage of care – pattern of care – factors relevant to determination of percentage of care – date of effect of the care determination – decision under review affirmed
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) ss 5(1), 35, 37, 49, 50, 54A, 54D
Child Support (Registration and Collection) Act 1988 (Cth) s 87AA
CASES
P v Child Support Registrar [2013] FCA 1312
P v Child Support Registrar [2012] FCA 1398
Polec and Staker & Anor [2011] FMCAfam 959
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Beadle and Director-General of Social Security (1984) 6 ALD 1Dranichnikov v Centrelink (2003) 75 ALD 134
SECONDARY MATERIALS
Child Support Guide (2016, Cth) Chapter 2.2.1
REASONS FOR DECISION
Senior Member A C Cotter
5 August 2016
INTRODUCTION
The Applicant is the mother of two young boys, aged five and three. The Other Party is their father (“Father”).
In March 2015, the Applicant and the Father separated.
On 26 May 2015, the Applicant applied for an administrative assessment of child support on the basis that she had 70 percent care of the children and the Father had 30 percent care of them. On 1 June 2015, the Department of Human Services – Child Support (“Department”) made an administrative assessment of child support in accordance with those nominated percentages.[1]
[1] Exhibit 1, T Documents, T21, pages 144-152, Final Application Snapshot dated 26 May 2015.
On 30 July 2015, the Father objected to that decision on the basis that he had care of the children six nights each fortnight.
On 23 September 2015, an Objections Officer allowed the Father’s objection and determined that the Applicant be recorded as having 58 percent of care of the children and the Father 42 percent of care from 3 March 2015, with effect from 26 May 2015.[2]
[2] Exhibit 1, T Documents, T 17, pages 112-119, letters from Respondent to the Applicant and the Father dated 23 September 2015.
The Applicant sought a review of that decision by the Social Services and Child Support Division of this Tribunal (“SSCSD”), which affirmed the Objection Officer’s decision regarding the percentage of care and varied the decision with respect to the date of effect. It decided that, with effect from 30 July 2015, the Applicant had 58 percent care of the children and the Father had 42 percent care of them.[3]
[3] Exhibit 1, T Documents, T 2, pages 7-10, Social Services and Child Support Division’s decision and reasons for decision dated 30 November 2015.
Dissatisfied, the Applicant has applied to the General Division of the Tribunal for a review of the SSCSD’s decision.
Before dealing with the issues raised by this application, it is timely to reflect on the key legislative provisions.
THE LEGISLATIVE FRAMEWORK
Child support liability is based on an administrative assessment under the Child Support (Assessment) Act 1989 (Cth) (”Assessment Act”). The Child Support Guide (“Guide”) provides further guidance in the application and operation of that Act. Although the Guide is not binding, such guides are generally applied unless there are cogent reasons not to do so.[4] No such reasons have been suggested in this instance.
[4] See P v Child Support Registrar [2012] FCA 1398, [3] (Buchanan J) and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Part 5 of the Assessment Act deals with the administrative assessment of child support. Section 37, which is within that Part, sets out Formula 3, which applies to assessments of child support where there is more than one child and no non-parent carer (which is the case in the present matter). Step 1.4 of Formula 3 requires one to work out each parent’s percentage of care for the children in accordance with Subdivision B of Division 4 of Part 5.[5]
[5] See Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”), s 35 and definition of “percentage of care”, s 5(1).
Percentage of care determinations are made under s 49 and/or s 50 of the Assessment Act (which appear in Subdivision B of Division 4 of Part 5). Section 49 deals with the determination of percentage of care where the responsible person[6] has had no pattern of care for the child, while s 50 relates to determinations where there has been a pattern of care.
[6] The term “responsible person” is defined to mean a parent or non-parent carer for a child: Assessment Act, s 5(1).
Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the relevant care period.[7]
[7] Assessment Act, s 50.
The care period does not have a fixed duration, it being the period that the Registrar “considers to be appropriate having regard to all the circumstances”[8]. However, the Guide provides that a care period “is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event)”.[9]
[8] Assessment Act, s 50(1).
[9] See Child Support Guide, chapter 2.2.1. Basics of Care.
Section 54A of the Assessment Act sets out how a responsible person’s actual care is to be calculated. In particular, subsections (1) and (2) provide:
1)The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
2)The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been , or is to be, in the care of the person during the care period under the care arrangement.
Subsection (4) provides that the section does not limit, among others, s 50.
In P v Child Support Registrar, the Federal Court held that the Tribunal is not obliged to apply s 54A if it considers it is not appropriate in the circumstances.[10]
[10] [2013] FCA 1312, [56] to [62] (Wigney J).
The Guide also provides assistance in this respect. Chapter 2.2.1 notes:
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child.
The Guide goes on to observe that the Registrar may consider patterns of care that have been established in recent months if it is satisfied that the pattern is likely to continue.
Section 87AA of the Child Support (Registration and Collection) Act 1988 (Cth) (“Registration and Collection Act”) provides that a review decision will have effect from the date the objection was lodged if the objection was lodged more than 28 days after the original care percentage decision. However, if the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the 28 days, the Registrar may allow for a longer objection period. The expression “special circumstances” is not defined in the Registration and Collection Act, but it has been extensively considered in this and other social services contexts by the courts and this Tribunal. It has often been said that the expression looks to circumstances that are unusual, uncommon or exceptional, or which have “a particular quality of unusualness that permits them to be described as special”.[11]
[11] See, e.g. Re Beadle and Director-General of Social Security (1984) 6 ALD 1, 3 (Toohey J, Member Wilkins and Member Billings); Dranichnikov v Centrelink (2003) 75 ALD 134, 148 (Hill J).
ISSUE FOR THE TRIBUNAL
The issue which falls for my determination is the percentage of care that should be attributed to the Applicant and the Father from 26 May 2015. That involves a consideration of: whether a pattern of care can be found; the appropriate care period; and the percentage of care to be attributed to the Applicant and the Father respectively.
A further issue also arises as to the date from which the care determination should take effect.
I consider those questions below.
CONSIDERATION
Was there a pattern of care?
There is no doubt that there was an agreed pattern of care for the children. At the hearing before me, both the Applicant and the Father confirmed that they agreed on the care arrangements which facilitated their respective work and other commitments; it was an amicable and pragmatic agreement which suited both of them.
The agreed arrangement was that the Father had care of the children from about 5:00 p.m. each Monday until about 7:00 a.m. each Tuesday and again from about 5:00 p.m. each Wednesday until about 7:00 a.m. each Thursday. The Father also had care of the children from about 5:00 p.m. Friday to about 5:00 p.m. Sunday every second week. The children were in the Applicant’s care at all other times.[12] The Applicant and the Father confirmed at the hearing that the agreed arrangements had been complied with fully.
[12] Exhibit 1, T Documents, T 2, page 8, Social Services and Child Support Division decision and reasons for decision dated 30 November 2015, [7].
What is the care period?
As mentioned earlier, the Assessment Act does not provide for a fixed duration for a “care period”; it is described simply as the period the Registrar “considers to be appropriate having regard to all the circumstances”. It therefore falls for me to determine the length of that period, commencing on 26 May 2015 (being the date on which the agreed care arrangements were notified to the Registrar).
In determining that issue, I note that the Guide provides that a care period is generally a 12 month period from the day on which the actual care of the child changed. In the absence of evidence or submissions from the Applicant and the Father as to whether the period should be shorter or longer, I agree with, and accept, the Registrar’s contention that the appropriate care period is 12 months from 26 May 2015.[13]
[13] See Exhibit 2, Registrar’s Statement of Facts, Issues and Contentions dated 9 May 2016, [4.19].
What is the percentage of care to be attributed to the Applicant and the Father respectively?
There being an agreed pattern of care for the children, s 50 of the Assessment Act is the appropriate provision under which the determination of percentage of care is to be made. Under that section, the percentage determined must be a percentage that corresponds with the actual care of the child that the responsible person has had, or is likely to have, during the care period.
The starting point for any such determination is s 54A of the Assessment Act, which provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the child was, or is likely to be, in the care of the person during the period of care. Based on that calculation, the Father under the agreed pattern of care has care of the children six nights out of each fortnight, with the Applicant having care for the balance. That equates to 42.8 percent for the Father and 57.2 percent for the Applicant (or 42 percent/ 58 percent after rounding down, as is required by s 54D[14]).
[14] See Assessment Act, s 54D.
However, as mentioned earlier, it has been held that the Tribunal is not obliged to apply s 54A if it considers it is not appropriate in the circumstances. Similarly, the Guide, while acknowledging that the number of nights a person cares for a child will be the “best measure” of percentage of care, also recognizes that there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements. An alternative methodology that is sometimes applied is to calculate the actual number of hours for which the person has care of the child. It is that method which the Applicant contends provides a fairer reflection of the care provided by each parent in this instance. On that basis, the Applicant says that she has 70 percent of the care of the children, with the Father having 30 percent.
The lawyer for the Registrar helpfully referred me to the decision of the Federal Magistrates Court in Polec and Staker & Anor[15], which sets out a non-exhaustive, workable guide[16], as to the sort of matters that should be taken into account when determining whether, and to what extent, a person has care of a child for the purpose of the Assessment Act. They include:
(a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?
(b)To what extent does the person make arrangements for others to meet the needs of the child?
(c)To what extent does the person pay for the costs of meeting the needs of the child?
(d)To what extent does the person otherwise provide financial support for the child?
(e)To what extent does the child provide for his or her own needs or have those needs met from another source?
(f)To what extent is the child financially independent or financially supported from another source?[17]
[15] [2011] FMCAfam 959 (Hughes FM).
[16] See P v Child Support Registrar [2013] FCA 1312, [107] (Wigney J).
[17] [2011] FMCAfam 959, [56] (Hughes FM).
In support of her contention, the Applicant submitted that while the children stay with the Father every Monday and Wednesday night, she cares for them during those days, with some (limited) support from her parents. In particular, she takes the children to and from school and day care (in the case of the younger son), looks after the younger son when he is not at day care, and helps with the elder son’s homework. She has the associated expense of looking after the children while they are in her care. On the other hand, she estimated that the children would sleep about 75 percent of the time that they were with the Father on those nights. The Applicant said that she was seeking full-time work, but had to put things “on hold”. She said that there was a significant difference in her and the Father’s incomes and that on separation, the Father had stayed in the family home with all the furniture; she left with only personal belongings. The Applicant said that as a result of the change in percentages of care, her Family Tax Benefit had been cut and she now had a debt with Centrelink.
The Applicant also questioned what would happen to the percentage of care if she accepted full time work, especially at the time of school holidays.
The Father gave evidence as to what care he provided when the children were with him. On those afternoons, his mother picks up the children and brings them home; he reimburses her $30.00 per week. He then gives the children dinner and bathes them before they go to bed. He helps with the elder son’s homework. The Father gives both boys breakfast before the Applicant collects them in the morning. On the weekends that he has the boys, the Father said that he provides complete care. He received a back payment for the School Bonus, but had not received any further payment as he elected to receive it annually, in case he incurred a debt.
As to the questions raised by the Applicant about future changes in circumstances, the Father responded that he would be happy to assist further with the care of the boys and that arrangements could be agreed.
Having regard to the factors identified in Polec outlined above, I am not satisfied that the calculation of percentage of care based on nights of care provides an unfair reflection of the care provided by each of the Applicant and the Father. While it is undisputed that the Applicant provides significant care during the daytime on Mondays and Wednesdays, the Father’s role, in providing a safe, familiar and supportive night time environment, is equally important, especially given the tender age of the children. Both parents provide the necessary financial support associated with the care that they provide, be it transport, meals, accommodation or the incidentals of daily living. They each enlist the support of family members, as required. While I note the disparity between the Applicant’s and the Father’s respective financial positions and sympathise with the Applicant, I do not consider that is a relevant factor in addressing the question before me, namely what percentage of care for the children each of the Applicant and the Father has. Similarly, I do not think that the implications for the eligibility for other social service or family assistance benefits is a factor to be taken into account in that context.
Understandably, the Applicant has concerns as to how the present arrangements may affect her in the future, especially if she were to secure full time employment. When those circumstances arise, she and the Father will no doubt reach a new arrangement to facilitate their respective commitments and to ensure that their sons are appropriately cared for. At that stage, a fresh determination of percentage of care may be necessary in respect of a new care period. That does not affect the current considerations.
For those reasons, I am satisfied that the nights in care is a proper reflection of the care arrangements. Therefore, I find that the Applicant has 58 percent care of the children and the Father has 42 percent care.
The date of effect of the care determination
As mentioned earlier, s 87AA of the Registration and Collection Act provides a limitation on the date of effect of an objection which is allowed if the objection was lodged more than 28 days after notice of the original decision was given to the objector. In the present case, the Father was notified of the original decision by letter of 1 June 2015, but he did not lodge an objection until 30 July 2015, outside the 28 day period.
Section 87AA also provides that if the objection is lodged more than 28 days after notification of the original decision, any favourable decision on the objection can only take effect from the day the objection was lodged unless there are “special circumstances that prevented the person from lodging the objection within” that period.
The Father contended that he was new to the child support scheme and was unfamiliar with the decision making process. He was recorded as having contacted the Department on 10 June 2015, querying the assessment, and again on 30 July, when the Department advised him that the nights of care did not equate with the percentage of care recorded for him. He then lodged his objection.
The Father subsequently advised the Objections Officer that when he informed the Department originally that he had six nights of care per fortnight, he was told that was 30 percent care. He did not undertake the calculation himself at the time, and did not realise that the calculation was incorrect.
While I accept the Father’s explanation, I do not consider that his circumstances were sufficiently special or unusual to justify exercising the discretion to extend the objection period in his favour. He had the necessary information available to him and could have readily undertaken the calculation himself. Nor do I think that unfamiliarity with the scheme is sufficient reason to exercise the discretion. I therefore do not consider that the date of effect should be extended. Consequently, I find that the date of effect should be 30 July 2015, being the date of the lodging of the objection.
CONCLUSION
For the reasons outlined above, I am satisfied that the Applicant has 58 percent of care of the children and the Father 42 percent of care. The date of effect of the decision is 30 July 2015, being the date of the lodging of the Father’s objection.
Accordingly, the decisions under review are affirmed.
I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter .......................[Sgd].................................................
Associate
Dated 5 August 2016
Date of hearing 19 July 2016 Applicant In person Solicitors for the Respondent Department of Human Services Other Party In person
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