Isley and Simmers (Child support)
[2024] ARTA 420
•16 December 2024
Isley and Simmers (Child support) [2024] ARTA 420 (16 December 2024)
Applicant/s: Ms Isley
Respondent: Child Support Registrar
Other Parties: Mr Simmers
Tribunal Number: 2024/SC028532
Tribunal: Member A Suthers
Place:Sydney
Date:16 December 2024
Decision:The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages for [Children 2-4] of 75% to Ms Isley and 25% to Mr Simmers will not be revoked based on the notification to the Registrar made by Mr Simmers on 5 December 2022. This decision will have effect on and from 6 September 2024.
CATCHWORDS
CHILD SUPPORT – percentage of care – change to pattern of care – parents separated under the one roof – assumption of equal care may not reflect the reality in each case – day-to-day involvement with children – conflicting notifications by each parent – no sufficiently probative evidence of change – decision under review set aside and substituted
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
REASONS FOR DECISION
SUMMARY
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of child support using a formula containing variables such as the parents’ adjusted taxable incomes and their respective percentages of care for their children.
Ms Isley and Mr Simmers are the parents of [Child 1], who is 17 years old, [Child 2], who is 15, [Child 3], who is now 14 and [Child 4], who is 12. A child support case was registered with Services Australia – Child Support (Child Support) in 2021. Ms Isley was recorded as providing 50% care for the children since 2019, with Mr Simmers providing the balance (50%) of care. Since that time, the parties have been separated but residing in the same house.
From 8 June 2022, the level of care recorded was amended to reflect that Ms Isley provided 75% of care for the children, with Mr Simmers providing the balance (25%) of care. That change was based on a notification by Ms Isley on 20 June 2022 to the Family Assistance Office (with transfer of that information to Child Support) and the decision was dated 3 August 2022.
If Mr Simmers disagreed with that assessment of the care percentage, he could have lodged an objection to it. That is the proper way to challenge an assessment of a care percentage that has already been made. Otherwise, that care percentage will be used by Child Support until Child Support is advised, and accepts, that there has been a change to the pattern of care.
Instead, on 5 December 2022, Mr Simmers notified Child Support that a change to the care arrangements for the children had occurred from 9 June 2022. He alleged that he provided 50% of care, and Ms Isley provided 50% on the basis that he and Ms Isley were living under the same roof and he was paying 95% of the costs of the household. On 19 January 2023, an original decision-maker accepted that change and recorded updated percentages of care of 50% to Ms Isley and 50% to Mr Simmers.
The Child Support (Registration and Collection) Act 1988 (R&C Act) provide that the parties to the assessment may lodge an objection to a care percentage decision by Child Support that informs the assessment and for certain persons to be able to seek review of the decision on the objection by application to the Tribunal.
That has occurred here. An objections officer considered an objection lodged by Ms Isley on 20 January 2023, and on 14 March 2023 allowed the objection in part, thereby varying the decision of 19 January 2023. Specifically, the objection decision recorded updated percentages of care of 65% to Ms Isley and 35% to Mr Simmers, effective from 9 June 2022, and noted:
Where parents are separated but living in the same house, we will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, we will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.
…
In fairness to both parties and their contribution to the family home and cost in raising the children, we can acknowledge that 50/50% care does not have to apply in this assessment. In order for [Ms Isley] to not be financially disadvantaged with any family tax benefits, we can provide a percentage of care that will allow her to continue to receive the entitled benefits to assist in supporting the children’s requirements.
On 6 September 2024, Ms Isley lodged an application for review of the objection officer’s decision. That is the application before me. I heard the matter on 15 November 2024. Ms Isley and Mr Simmers appeared by telephone with the assistance of an interpreter.
The Tribunal had the following before it to assist with its decision:
a. Hearing papers comprising documents from Ms Isley and Mr Simmers’ Child Support files (pages 1-390);
b. Oral evidence from Ms Isley and Mr Simmers at the hearing; and
c. Additional documents provided by Ms Isley (pages A1 - A15).
The effect of Ms Isley’s submission is that, notwithstanding the earlier assessment that Mr Simmers had an established ‘pattern of care’ (as described in the Act) by virtue of the assessments commencing on 8 and 9 June 2022, that is not the case.
In brief, the parties’ respective positions are that:
(a) Ms Isley says that she has provided 100% of the care to the children since her separation from Mr Simmers, despite Mr Simmers living in the same house with the children and him paying for the children’s school fees and the mortgage repayments; however
(b) Mr Simmers maintains that whilst he is unable to spend much meaningful time with the children, that is because Ms Isley prevents him from doing so and, in any event, his financial contributions need to be considered.
For the following reasons, I am not persuaded a change to the pattern of care that was assessed by Child Support as 75 % to Ms Isley and 25% to Mr Simmers has occurred (as reflected by the 19 January 2023 decision) and will reverse Child Support’s decision on the objection.
SIMPLIFIED SUMMARY OF THE LAW, RELEVANT POLICY, AND THE ISSUES TO BE DETERMINED
As this is a ‘statement of reasons’ I am required, amongst other things, to explain the reasons for the decision. To do so, it is necessary to set out to an extent the law and relevant policy to be considered.
On 14 October 2024 the Administrative Appeals Tribunal (AAT), to which this application was initially brought, was replaced by the Administrative Review Tribunal (the Tribunal). An application for review by the AAT that was not finalised before 14 October 2024 is taken to be an application for review by the Tribunal, and the Tribunal has the authority to continue and finalise any aspect of the review that was not completed by the AAT: Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
I am satisfied that I have jurisdiction and power to conduct this review due to the combined effect of ss 80A, 87, and item 2 of the table in s 89 of the R&C Act, read with ss 12 & 105 of the Administrative Review Tribunal Act 2024 (ART Act).
In reviewing this decision, I may also have regard to the Child Support Guide published by the Australian Government (the Guide) where relevant. The Guide contains governmental guidelines and statements of policy as to how the legislation is to be applied. Whilst I can be guided by that policy if it is lawful and does not purport to control my decision, I am not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229.
The parties’ respective percentages of care may, and commonly will, be assessed based on the respective nights the children spend in their care (the Act, s 54A and the ‘Child Support Guide’ published by the Australian Government), but that is not mandatory. If a more appropriate basis for assessment of that issue is identified and is based on permissible considerations, it may be used: P v Child Support Registrar [2014] FCAFC 98.
Where, as here, the parties both reside full time with the children in circumstances commonly described as being ‘separated under the one roof’, Child Support’s approach of commencing with an assumption of equal care is pragmatic but may not reflect the reality in each case.
Some assistance as to the factors that may be considered if a ‘nights spent in care’ basis for assessment is not used was provided by the Court in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec) at [56]. The Court gave some non-exhaustive guidance, stating:
In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:
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?
Having regard to the statutory scheme, I respectfully agree that those are all permissible considerations.
In addition, whilst reflecting the court’s findings in Polec, above, the Guide at 2.2.1 also notes that a relevant consideration is the extent to which a person has control of the child, including having overall responsibility for the child and making:
⦁ major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities; and
⦁ arrangements for others to meet the needs of the child (delegated care).
The core issue in this application is whether the ‘pattern of care’ (as described but not defined in the Act) provided by the parents to the children has changed after 8 June 2022 (as recognised by the determination made on 3 August 2022. I am not reviewing or revisiting the decision to allocate the percentages of care as 75% to Ms Isley and 25% to Mr Simmers that was made in that determination.
I am to review all the evidence before me (from whatever source), determine the relevant facts (including by resolving any disputed assertions of the parties that need be determined), and independently decide afresh whether I can be satisfied that a material change of care has occurred. I say ‘material change of care’ because not every minor change to the day-to-day care arrangements of a child represents a change to the overall pattern of care: see the Guide at 2.2.1.
If the pattern of care has changed, the current care percentages determinations may, and in some cases must, be revoked pursuant to ss 54G, 54F and 54H of the Act.
However, it is first necessary to consider whether I can be reasonably satisfied that a change of care occurred.
MS ISLEY’S EVIDENCE
Ms Isley’s oral evidence was similar to that outlined above. She maintains that she cares for the children, on a day to day basis, effectively to the exclusion of Mr Simmers. She also pays for their day to day expenses such as food and extra-curricular activities. She says that Mr Simmers usually spends no time with the children in the morning, and arrives home from work so late at night that he is only able to spend between half and one hour with the children. On weekends, the children are generally undertaking activities outside the home that Mr Simmers is not involved in, such as attending church with her. Ms Isley pays for these expenses from her Centrelink income and the child support she receives.
Ms Isley says that whilst Mr Simmers has been paying the mortgage and expenses on the home, it is in the name of Mr Simmers. Further, whilst Mr Simmers has been paying the children’s private school fees, he recently threatened to back out of that arrangement and only pay one-half of terms 3 and 4 this year but capitulated after being contacted by the school.
There are now provisional apprehended domestic violence orders between Ms Isley and the children, on the one hand, and Mr Simmers on the other.
MR SIMMERS’ EVIDENCE
Mr Simmers’ oral evidence confirms much of Ms Isley’s evidence about his day-to-day involvement with the children over recent years but lays the responsibility for his lack of a relationship with the children at Ms Isley’s feet. He has not eaten a meal together with the children in the house for several years, but occasionally takes them out. His work impacts his available time during the week, but on weekends and holidays he says Ms Isley takes the children out each day, often returning only late at night.
Mr Simmers says that, in addition to the mortgage payments of $780 per week, he pays all other fixed household expenses. Whilst the house is in his name, there are property settlement proceedings on foot between the parties. He also pays the school fees, totalling $12,000 per year, and fixed expenses on a car used by Ms Isley.
Mr Simmers initiated unsuccessful family dispute resolution in respect of his time with the children in December 2022, and has more recently sought parenting orders in the family law proceedings, but not even an interim hearing in respect of that application has occurred. He intends to oppose the apprehended domestic violence proceedings.
Mr Simmers asserts that he provides equal care to the children with Ms Isley.
ASSESSING THE EVIDENCE AS TO A CHANGE OF CARE
The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence: ART Act, s 52. There is no legal onus of proof on a party where no such onus is imported by the referring legislation. However, the Tribunal’s inquisitorial role does not mean that a party can simply present what are said to be facts and leave it to the Tribunal to search out the truth of any and all allegations, in effect shifting the burden of providing the evidence in support of their position to the Tribunal. Rather, the Tribunal’s role is to respond to the case that the party advances: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; at [78].
The position, outlined by the Full Bench of the Federal Court in McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357, is that even where there is no onus of proof in administrative decision making of this nature a party asserting a claim and addressing a relevant statutory provision needs to ensure that sufficient probative evidence is before the decision-maker to support the claim.
If, as is the case here, a party needs to rely on a legislative provision to effect a change to an established position, then the absence of sufficient probative evidence to demonstrate a change of care has occurred will lead to the original notification of change of care not being accepted. That is simply a “common sense approach”: McDonald.
Importantly, the only alleged change in care that I am reviewing is the change from care assessed at 75% to Ms Isley and 25% to Mr Simmers, to 65% to Ms Isley and 35% to Mr Simmers, that was determined by Child Support on 14 March 2023 to have occurred on 9 June 2022.
I do not need to resolve the differences between the parties’ evidence in order to resolve this application, because the ways in which the parties’ evidence differs does not go to this issue. Whilst both parties may disagree with the assessment made by Child Support that Ms Isley provided 75% of care and Mr Simmers provided 25% of care in the care period commencing 8 June 2022, there is no evidence of a change to the way the parties cared for the children after that date.
Put simply, I find there is no probative evidence of a change of care of the nature alleged by Mr Simmers, or of any nature, occurring between 8 June 2022 and the present.
All the evidence points towards a consistent and unchanged pattern of care in that period. Either party could have lodged an objection to the 3 August 2022 assessment and had it considered afresh, but neither did.
Despite Ms Isley’s assertions, I am not satisfied that this is a case where, despite being assessed as having at least regular care under the first determination, Mr Simmers has not had at least regular care. On the principles set out in Polec, above, Mr Simmers’ financial contribution to the mortgage, which houses the children, as well as his contribution to the private school fees and other expenses that benefit the children clearly exceeds the threshold of regular care. Because of that, the terms of s 54G of the Act are not met.
Further, the provisions of ss 54F and 54H of the Act cannot be met, because this is not a case where ‘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’: the Act, ss 54F(1)(a) & s 54H(1)(a). The pattern of care provided by Mr Simmers continues to correspond with that assessed under the existing care percentage.
As a result, I will set aside the decision under review and, in substitution, decide that the care percentages of 75% to Ms Isley and 25% to Mr Simmers will not be revoked based on the notification to Child Support made by Mr Simmers on 5 December 2022. As a consequence, no new care percentages need to be determined.
FROM WHAT DATE WILL MY DECISION APPLY?
However, s 95N of the Act then needs to be considered. Relevantly, it provides that where the application to the Tribunal was made more than 28 days after notice of the objection decision was given, my decision has effect on and from the day the application to the Tribunal was made unless ‘special circumstances’ prevented the application being made within time.
Ms Isley was notified of the objection decision on 14 March 2023. She did not lodge her application to the Tribunal until 6 September 2024.
There was no suggestion or evidence of special circumstances that prevented the application being made within time. I have taken into account that Ms Isley does not speak English as a first language and that says that she read the objection decision and ‘understood it but not fully.’
Where a party receives an official document such as the objection decision in a language that is not written in their first language, they can properly be expected to have that document translated: see, for example, Huang & Ors v Liao (also known as Kurz) & Ors [2022] NSWSC 526 at [13] in respect of court orders.
The letter to Ms Isley attaching the objection decision dated 14 March 2023 stated in the second paragraph:
If you do not agree with this decision
if you think this decision is wrong, you can ask the administrative appeals Tribunal (AAT) to review it. You must do this within 28 days from the date you received this letter. You can contact the AAT by going to their website AAT.gov.au or calling them on 1800 228 333. (Emphasis in original)
I am not satisfied that special circumstances prevented Ms Isley lodging the application for review within 28 days.
The consequence is that the parties’ respective percentages of care for the children who are the subject of the assessment will return to 75% to Ms Isley and 25% to Mr Simmers, with effect on and from 6 September 2024.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages for [Children 2-4] of 75% to Ms Isley and 25% to Mr Simmers will not be revoked based on the notification to the Registrar made by Mr Simmers on 5 December 2022. This decision will have effect on and from 6 September 2024.
| Date(s) of hearing: | Friday, 15 November 2024 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | Self-represented |
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