GYJV and Child Support Registrar (Child support second review)
[2017] AATA 595
•3 May 2017
GYJV and Child Support Registrar (Child support second review) [2017] AATA 595 (3 May 2017)
Division: GENERAL DIVISION
File Number: 2016/3632
Re:GYJV
APPLICANT
AndChild Support Registrar
RESPONDENT
AndMQBK
OTHER PARTY
DECISION
Tribunal:Dr L Bygrave, Member
Date:3 May 2017
Place:Sydney
The decision under review is affirmed.
...............[sgd].......................................................
Dr L Bygrave, Member
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.
CATCHWORDS
SOCIAL SECURITY – child support – percentage of care – existing care percentage attributable – whether existing care percentage determination must be revoked – decision affirmed
LEGISLATION
Child Support (Assessment Act) 1989 ss 5(1); 49; 50; 50(1)(b); 50(2); 54F(1)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Polec & Staker & Anor [2011] FMCAfam 959
SECONDARY MATERIALS
Child Support Guide, Version 4.23 (Released 20 March 2017), cl 2.2.1
REASONS FOR DECISION
Dr L Bygrave, Member
3 May 2017
INTRODUCTION
GYJV and MQBK are the separated parents of their daughter, Child A, who was born in April 1998. This matter relates to a percentage of care assessment for Child A.
Since 18 September 2013, a child support assessment for Child A has been in place regarding the care provided by GYJV and MQBK. In accordance with this assessment, GYJV’s percentage of care of Child A was 0% and MQBK’s percentage of care of Child A was 100% (the existing care percentage determination).
On 6 October 2015, GYJV advised the Child Support Registrar (Registrar) that on 3 September 2015, Child A departed Australia for France to participate in an exchange program. GYJV applied to the Registrar for a new care determination on the basis that the care of Child A had changed, and submitted that care was now shared equally between GYJV and MQBK.
On 2 December 2015, the Registrar decided to change the existing care percentages from 3 September 2015 to the effect that MQBK had a care percentage of 51% and GYJV had a care percentage of 49%. The decision was effective from 6 October 2015. MQBK lodged an objection to this decision on 3 December 2015.
On 5 February 2016, an Objections Officer partially allowed the objection because they were satisfied that from 3 September 2015, MQBK’s care percentage was 30% and GYJV’s care percentage was 20%. The Objections Officer noted that on this basis, neither GYJV nor MQBK was an eligible carer and as such, a terminating event had occurred.
On 11 March 2016, MQBK applied to the Social Security and Child Support Division (SSCSD) of the Administrative Appeals Tribunal for review of the objections officer’s decision.
The SSCSD set aside the decision on 2 June 2016 and substituted a decision not to revoke the existing care percentages from 3 September 2015 on the basis that while there had been a change in the percentage of care, this change did not result in a variation to the parties’ cost percentage and a ground for revocation was not established.
On 13 July 2016, GYJV applied to the General Division of the Administrative Appeal Tribunal for review of the SSCSD decision.
The matter was heard in Sydney on 13 March 2017. GYJV attended the hearing in person and MQBK attended the hearing by telephone.
RELEVANT LEGISLATION AND ISSUES
The administrative assessment of child support is set out in Part 5 of the Child Support (Assessment Act) 1989 (the Act). The following parts of the Act are relevant to this review.
Subdivision B of Division 4 of Part 5 of the Act
The Act provides for the determination of financial support payable by parents for their children.
A determination of the responsible parent’s percentage of care for a child during the care period is made by the Registrar. Percentage of care determinations are made under sections 49 or 50 of the Act, depending on the pattern of care provided by a ‘responsible person’. ‘Responsible person’ for a child is defined in section 5(1) as ‘a parent or non-parent carer’.
Section 50(2) of the Act provides that the Registrar must determine the responsible person’s percentage of care for a child during the care period if, in accordance with subsection 50(1)(b), the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person's percentage of a care for a child that was made under section 49 or this section; and
(ii) is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances. [emphasis in the original]
The ‘care period’ is the period the Registrar considers relevant for its determination of the responsible person’s percentage of care.
Subdivision C of Division 4 of Part 5 of the Act
Section 54F(1) of the Act provides that the Registrar must revoke the existing percentage of care determination if:
(a)a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and
(b)…
(c)the Registrar or the Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and
(d)the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and … [emphasis in the original]
The date of effect of a revocation of an existing percentage of care determination depends upon when the Registrar is notified of the change. Pursuant to section 54F(2), if the Registrar is notified within 28 days, the revocation of the determination takes effect from the day before that change of care; otherwise, the revocation takes effect at the end of the day before the day on which the Registrar is notified. In this matter, that date is 6 October 2015.
The issues for determination by the Tribunal are:
(a)whether the existing care percentage determination must be revoked; and
(b)if so, what are the new percentages of care attributable to GYJV and MQBK in relation to Child A, and from what date should these apply.
Should the existing percentages of care attributable to GYJV and MQBK in relation to Child A be revoked?
In a situation where a child is living away from home, regard should be had to the Child Support Guide (the Guide). The Guide is government policy and must be considered unless there are cogent reasons not to do so.[1]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
Clause 2.2.1 of the Guide states:
Determining whether care exists
An object of the CSA Act is ‘that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings’ (section 4(2)(c)). The CSA Act does not define the term ‘ongoing daily care’, however the Registrar will take into account a number of factors in determining whether a person cares for a child.
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:
· To what extent the person has control of the child, including having overall responsibility for the child and making:
o major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
o arrangements for others to meet the needs of the child (delegated care).
· To what extent the person meets 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.
· To what extent the person pays for the costs of meeting the needs of the child.
· To what extent the person otherwise provides financial support for the child.
· To what extent the child provides for his or her own needs or has those needs met from another source.
· To what extent the child is financially independent or financially supported from another source.
The Guide relevantly notes that financial support is not the sole determinant in determining whether a person cares for a child who lives away from home, and consideration is also given to who has responsibility for making arrangements for and decisions about the child’s welfare.[2]
[2] Child Support Guide, Version 4.23 (Released 20 March 2017), cl 2.2.1.
I also have regard to the decision in Polec & Staker, which held that it is necessary to consider the following factors in determining whether and to what extent a person has care of a child for the purpose of child support legislation:[3]
(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?
[3] Polec & Staker & Anor [2011] FMCAfam 959 at [56].
Both GYJV and MQBK provided extensive documentation to the Tribunal setting out their financial and other support for Child A in the period from September 2015 to August 2016.
The following facts appear to be accepted by both parents:
·GYJV and MQBK each paid half of Child A’s exchange program costs, which totalled $10,400;
·GYJV paid MQBK in accordance with the existing care percentage determination until February 2016;
·from September 2015 to January 2016, MQBK deposited $3,451 into Child A’s bank account and made direct payments totalling $441 on behalf of Child A;[4] and
·from February 2016 to August 2016, GYJV paid Child A an allowance of $200 per fortnight after GYJV ceased making child support payments to MQBK for Child A.[5]
[4] Exhibit T4, p 40.
[5] Exhibits A2 and T115, p 432.
GYJV provided a table of payments he paid to Child Support, MQBK and Child A in the period from August 2015 to August 2016.[6] MQBK told the Tribunal that some of these payments by GYJV comprised back pay for 2014 child support payments, reimbursement for the costs of Child A’s farewell party and a cash Christmas gift for Child A.
[6] Exhibit A2.
At the Tribunal hearing, GYJV and MQBK disputed the actual pattern of care for Child A from September 2015 to August 2016.
GYJV accepted that he had 0% care for Child A prior to September 2015. However, GYJV contended that from 3 September 2015 to August 2016, the day-to-day care for Child A was with her exchange program host family in France rather than with MQBK. He submitted that this was because the host family provided Child A with accommodation, meals at home, transport to school and some activities. GYJV stated that in accordance with the exchange program guidelines, his contact with Child A was limited to her phoning him fortnightly but they had regular contact via messaging, texts, emails and face-time and he was available ‘whenever Child A needed him’. GYJV further submitted he paid over $4,000 directly to Child A after he was no longer required to pay child support to MQBK.[7]
[7] Exhibit A1.
MQBK provided extensive evidence to the Tribunal that she:
·organised the placement of Child A with the host family;
·liaised with the host family prior to Child A’s departure;
·organised and paid for Child A’s visas;
·purchased appropriate clothing and luggage for Child A; and
·arranged and made payments into a travel card for Child A’s use while in France.
The Tribunal is satisfied that these arrangements occurred prior to the departure of Child A to France and so were consistent with MQBK’s existing percentage of care.
At the Tribunal hearing, MQBK submitted that she continued to provide a pattern of care to Child A while Child A was on exchange in France between September 2015 and August 2016 that corresponded to her existing care percentage of 100%. MQBQ provided evidence about the level of financial, emotional and practical support she gave to Child A. MQBK stated that she spoke to Child A regularly, with the frequency depending on the level of emotional support Child A required. She noted that this contact was daily during periods when Child A was settling in, unwell or having difficulties with a member of her host family; however, at times when Child A was feeling more settled, their phone contact was several times per week. MQBK deposited money into Child A’s travel account to cover clothing, food, travel, school, extra-curricular activities, medical, phone, entertainment and gifts costs between 31 August 2015 and 26 January 2016. MQBK also submitted that she continued to maintain costs associated with keeping a room for Child A in the family home while Child A was in France.
CONSIDERATION
Having regard to the factors set out in the Guide and Polec & Staker, I am satisfied that Child A remained financially and emotionally reliant on her parents during her participation in an exchange program in France from September 2015 to August 2016. Although the exchange program host family provided accommodation and some meals, the costs of Child A’s clothing, additional food, schooling, transport and extra-curricular activities including sport were required to be met by her parents.
I am also satisfied that, although MQBK did not have the same daily contact and care of Child A when Child A was in France as she did while Child A was in Australia, MQBK continued to be responsible for providing Child A with emotional, financial and practical support during the period from September 2015 to August 2016.
I am therefore satisfied that there was no basis to change the care percentages that applied for Child A from 3 September 2015.
DECISION
The decision under review is affirmed.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
.......................[sgd].................................................
Associate
Dated: 3 May 2017
Date of hearing: 13 March 2017 Applicant: In person Solicitors for the Respondent: Sparke Helmore Lawyers Other Party: By phone
Key Legal Topics
Areas of Law
-
Family Law
-
Administrative Law
Legal Concepts
-
Statutory Construction
-
Judicial Review
-
Procedural Fairness
-
Appeal
0