JBRJ and Child Support Registrar (Child support second review)
[2016] AATA 27
•27 January 2016
JBRJ and Child Support Registrar (Child support second review) [2016] AATA 27 (27 January 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2487
Re
JBRJ
APPLICANT
And
Child Support Registrar
RESPONDENT
And
MWMK
OTHER PARTY
DECISION
Tribunal Senior Member McCabe
Date 27 January 2016 Place Brisbane The decision under review is set aside and remitted to the respondent to calculate the percentage of care.
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Senior Member McCabe
It is noted that 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 – percentage of care – amount payable – grandparents provided support – factors relevant to determination of percentage of care – decision set aside and remitted
Legislation
Child Support (Assessment) Act 1989 (Cth)
Cases
P v Child Support Registrar [2013] FCA 1312; (2013) 62 AAR 17
Polec v Staker [2011] FMCAfam 959; (2011) 253 FLR 339
REASONS FOR DECISION
Senior Member McCabe
27 January 2016
When parents separate, one of the parents may be obliged to pay child support to the parent that has care of a child. The Child Support Registrar calculates the amounts that are payable under the Child Support (Assessment) Act 1989 (Cth) (the Act). As part of that process, the Registrar must make a determination as to the pattern (or likely pattern) of care.
This case requires me to review the care arrangements in place in respect of Mark[1] in the period 22 August 2014 - 3 July 2015. Mr JBRJ and Ms MWMK, Mark’s parents, are separated. The question over care arrangements arises because Ms MWMK says her son was effectively living with his paternal grandparents during this period. Ms MWMK says Mr JBRJ should not be regarded as having care of Mark for a significant percentage of that time. If she is right, she would be relieved of the obligation to pay child support in respect of the child.
[1] This is an assumed name for the purposes of these proceedings.
The Child Support Registrar determined Mr JBRJ had 100% care of Mark from 1 November 2013. Ms MWMK informed the Registrar in September 2014 of a change in Mr JBRJ’s care. She said Mark had been living with Mr JBRJ’s parents since 22 August 2014. The Registrar declined to change the determination but Ms MWMK successfully appealed to the Social Security Appeals Tribunal (the SSAT). The SSAT concluded Mr JBJR had 25% care of Mark, while Mr JBRJ’s parents had 75% care of Mark from 22 August 2014.
The basic facts are not in dispute. Mr JBRJ and Ms MWMK had two children together. The couple separated in 2000. Between 2010 and the end of 2012, Mark lived with his mother in Adelaide. Mark’s older sister moved back to Darwin to complete her schooling and live with her father in 2011. It was agreed Mark would move to Darwin at the beginning of 2013. By that time, Mr JBRJ had re-partnered. Mr JBRJ, his partner and Mr JBRJ’s daughter were living together in a comfortable four bedroom home in Palmerston, a Darwin suburb.
Mark was enrolled at a local school when he arrived in 2013. He had a torrid year. He moved to a new school in Casuarina at the commencement of 2014. The Casuarina school was located about 40 minutes away from Mr JBRJ’s home.
Mark did not do well at the new school. He began to exhibit behavioural problems. Mr JBRJ said in his evidence that the boy was running with a bad crowd. Ms MWMK suggested she was aware there was also friction within the JBRJ household: Mark and his father were having an increasingly difficult relationship. Mr JBRJ agreed in a statement dated 19 August 2015 that Mark’s behaviour was disrupting the household. Mr JBRJ said he considered sending Mark back to Adelaide in the middle of the year. But he came up with alternative: Mark would go and stay with Mr JBRJ’s parents at their property outside Howard Springs.
I will refer to Mr JBRJ’s parents as ‘the grandparents’. The grandparents lived on rural acreage just outside of town. The property was described at the hearing. The accommodation was basic. There was no internet connection and no computers. While the bus stop for the school bus was situated about 500 metres from the house, Mark was effectively isolated after hours. The grandparents ran a tight but loving ship, by all accounts. He got on well with his grandparents, and Ms MWMK acknowledged they did an excellent job.
Mr JBRJ said the strategy soon paid dividends. Mark’s behaviour improved, and so did his grades. He was able to get a part-time job, and he has since obtained an apprenticeship.
The grandparents say they did not accept any money from their son in return for looking after their grandson. They apparently regarded it as their duty, and they obviously had a good relationship with the boy. They provided a statement dated 18 August 2015 in which they set out their recollection of the dates when Mark stayed with them. They said he stayed overnight with them on the following periods:
·20 August – 12 September 2014
·26 October 2014 – 31 March 2015 (which included six weeks of school holidays)
·9 April – 26 April 2015.
The statement said Mr JBRJ continued to be the primary contact with Mark’s school, although they attended at least one school meeting with their son and grandson. They continued:
During the period [Mark] stayed with us overnight he continued to go to his Father’s house after school to use his computer for school work, casual job applications and the like and interact with his Family.
We did not pay for any outgoings for [Mark] other than provide food.
Mr JBRJ said his son did not have his own room as such at the grandparents’ residence: the accommodation was very basic, and there was only one room. But Mr JBRJ said Mark had his own space.
Mr JBRJ’s oral and written evidence was consistent with his parent’s account. In his statement of 19 August 2015, he emphasised he still ran around after Mark providing transport, guidance and money. Mr JBRJ said in his oral evidence that he paid for uniforms, school excursions and health insurance. He also supported Mark in seeking work experience opportunities which have since led to an apprenticeship. Mark also stayed with Mr JBRJ and the family in Darwin reasonably regularly.
Ms MWMK’s evidence was of limited assistance. She did not have first-hand knowledge of Mark’s care arrangements.
Mr JBRJ’s evidence is corroborated by the evidence of his parents. I have no reason not to accept the evidence of Mr JBRJ and his parents in the circumstances. But where does that leave us?
Sections 49 and 50 of the Act provide for me to make a “percentage care determination” in relation to a person who is responsible for the child during a particular period. The original care determination was revoked and the SSAT substituted a new determination. I must decide whether that was the correct decision. As a practical matter, I must decide whether Mr JBRJ retained care of Mark throughout the period in question, or whether Mark was in the care of his grandparents for at least part of the time.
What does it mean to have care of a child? The expression is not defined, although s 54A says I may have regard to the number of nights that the child was in the care of an individual. But the Federal Court pointed out in P v Child Support Registrar [2013] FCA 1312; (2013) 62 AAR 17 that other factors might be relevant to my deliberations: at [60] per Wigney J. Those factors are conveniently summarised in the decision of Hughes FM in Polec v Staker [2011] FMCAfam 959; (2011) 253 FLR 339 at [56], where his Honour explained:
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 and the Child Support (Registration and Collection) Act, 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?
Mr JBRJ met some of Mark’s needs, but the most important of these – food and shelter – were provided by the boy’s grandparents at their own expense over long periods. I accept Mr JBRJ paid for many of Mark’s expenses at school and assisted with transport (Mark rode the bus to school, I understand), and I accept Mr JBRJ’s family health insurance extended to Mark. But the grandparents assumed responsibility for the day-to-day supervision of the boy and appeared to have a healthy emotional relationship with him, whereas Mr JBRJ’s relationship appeared to be rockier.
On balance, having regard to the factors referred to in Polec, and taking into account the need to make a practical assessment of who was primarily caring for Mark, I am satisfied the SSAT was correct when it concluded the grandparents had care for Mark during the extended periods where Mark was staying overnight with them.
The SSAT decided the applicant had care of the boy for 25% of the period in question. It may be possible to make a more precise calculation taking into account the figures provided by the grandparents. While I agree with the substance of the SSAT decision, I propose to set the decision aside pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) and remit it to the Registrar for the purposes of calculating the percentage of care based on the figures provided by Mr JBRJ’s parents.
20. I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 27 January 2016
Date of hearing 18 November 2015 Applicant By telephone Advocate for the Respondent
Other Party
Ms C Campbell, Department of Human Services
By telephone
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Appeal
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Jurisdiction
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Remedies
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Procedural Fairness
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