KFSV and Child Support Registrar (Child support second review)

KFSV and Child Support Registrar (Child support second review) [2019] AATA 2427 (6 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6869
Re:KFSV
APPLICANT

AndChild Support Registrar
RESPONDENT

AndQWKK
OTHER PARTY

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:06 August 2019
Place:Sydney

The decision under review is set aside and in substitution the Tribunal determines that the Applicant had 100% care of the Child from 1 September 2017 and that a recalculation of child support assessment for the period from 13 April 2018 to 21 May 2018 should be made accordingly.
...........................[sgd].............................................
Chris Puplick AM, Senior 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
CHILD SUPPORT – percentage of care – Federal Circuit Court consent orders – parenting agreement – child care arrangements – meaning of "actual care" – decision under review set aside
LEGISLATION
Child Support (Assessment Act) 1989 (Cth)
SECONDARY MATERIALS
The Child Support Guide
REASONS FOR DECISION
Chris Puplick AM, Senior Member
06 August 2019

This matter involves a dispute between KFSV and QWKK in respect to the percentage of care each parent had of their daughter in the period 1 September 2017 to 20 May 2018. The percentage of care registered is taken into consideration when calculating child support owed by one parent to another.
It should be noted that this is a dispute between the two parties – the parents – and that the formal Respondent, the Child Support Registrar takes no position as to the outcome of these proceedings.
BACKGROUND INFORMATION
Ms KFSV (the Applicant) and QWKK are the parents of a child who was born in September 2016. The parties themselves were never formally married but their relationship was one of some 4 or 5 years standing.
The parties separated on 1 September 2017 but continued to live under the same roof until the partner departed on 21 May 2018 in accordance with Consent Orders made by the Federal Circuit Court.[1]
[1] Attached to Applicant’s Submission at [37].
On 13 April 2018 the Applicant applied for a child support assessment to be registered on the basis that while the couple were still residing under the one roof she, and she alone had 100% care of the child and that the father made no financial contributions to the child’s support. This application was accepted by the Department (the Respondent) on 16 May 2018) awarding the 100% care determination from 27 September 2017 with effect from 13 April 2018.
The father objected to this determination on 13 June 2018 claiming that he and the mother shared care for the child 50/50 from her date of birth until 21 May 2018 when he moved out.
The Respondent made several unsuccessful attempts to contact the Applicant to discuss the father’s claims. There is evidence before the Tribunal of letters and telephone messages sent by the Respondent to the address recorded by the Applicant but the Registrar received no response.[2]
[2] Section 37 Tribunal Documents related to contacts initiated on 15 June 2018, 4 July 2018, 2 August 2018 and 10 August 2018 at [16], [19], [81-85] respectively.
On 10 August 2018 an Objections Officer on behalf of the Registrar made a decision to disallow the father’s claim, primarily on the basis that he had failed to provide any evidence of his financial contribution to the care of the child.[3]
[3] Ibid at [88]-[91].
On 21 August 2018 the father appealed this decision to the Social Services and Child Support Division of this Tribunal (AAT1) at which time he supplied some evidence in support of his 50/50 claim.
On 23 October 2018 the AAT1 upheld that father’s claim, setting aside the original 100% determination and deciding that each of the parents had a 50% share of care from 1 September 2017 until 21 May 2018. This affected the child support assessment from 13 April 2018 to 21 May 2018.
This determination was not accepted by the Applicant and on 28 November 2018 she lodged an appeal with this Tribunal for a review of the AAT1 decision. In her application she claimed, inter alia, that had been unaware of the AAT1 proceedings and did not receive any notification related to it.
The AAT1 in its determination made it clear that copies of all relevant documentation had been sent to both parties and that the father had attended the Tribunal hearings in person.[4]
[4] Section 37 Tribunal Documents at [5].
The appeal was heard by the Tribunal on 30 July 2019 at which stage the Applicant appeared, as did the representative of the Child Support Registrar. On this occasion the father provided further written submissions but declined to appear stating that this was, “as I have to work and have taken too much time off” through Family Court and Tribunal processes.[5]
[5] Email to Tribunal dated 18 July 2019.
LEGISLATIVE FRAMEWORK
It is not necessary to set out in any great detail the relevant legislative provisions. The calculations of percentage of care in such circumstances as this are set out in Part 5 of the Child Support (Assessment Act) 1989 (the Act). Section 35 of the Act applies where neither parent has another child support assessment and only the parents provide care for the children in question. That being the case in this instance, an assessment of each parent’s percentage of care is then determined under Subdivision B of Division 4 of Part 5 of the Act.
Thereafter section 50 of the Act provides:
Determination of percentage of care--responsible person has had etc. a pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child 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 ………..
Subsection 50(3) goes on to provide that an assessment must be made of the actual care provided for a child:
(3) The percentage determined under subsection (2) 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 care period.
Section 54A goes on to define the meaning of “actual care” in the following terms:
Working out actual care, and extent of care, of a child
(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.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.
It is agreed that the “care period” in this case is the period from 1 September 2017 until 21 May 2018, that is the period beginning with the couple’s separation while still living under one roof until the day on which the father left the shared family home.
Matters to be taken into consideration in making such assessments are set out in the Child Support Guide which, at section 2.2.1 provides
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:
·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).
·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.
EVIDENCE OF THE PARTIES
The Applicant
The Applicant has lodged a number of documents including a Submission dated 18 April 2019, copies of several bills, statements, receipts and bank statements together with a copy of the Court Order of 30 April 2018.
From these the Applicant contends that, from the date of the Court Order she had 100% care of the child and was thus entitled to 100% of any child support arrangements.
She argues that the period in dispute is from 13 April to 21 May 2018 and that, as a result, any payments made by the father or any bills paid by him which pre-date 13 April 2018 cannot be considered as any form of support regardless of when they were actually paid. For example where the father claims to have paid an account for Babify (nappy) services on 16 April 2018, this was a reimbursement for her having paid an account on 5 April 2018 and hence falls outside the period under consideration.
Similarly she claims that payment made by the father in relation to home insurance or Medicare costs cannot be attributed directly as constituting support of the child.
The Applicant disputes the finding of AAT1 on these claims and further asserts that she was denied the opportunity to participate in the AAT1 proceedings as a result of not being properly notified that they were on foot.[6]
[6] Applicant’s Submission 18 April 2018.
On this point, the Tribunal is satisfied from the documentation provided that the Applicant was properly notified of the Tribunal’s proceedings and that electronic communications sent to her were in fact neither opened nor read by her.[7]
[7] Section 37 Tribunal Documents at [64].
The Applicant works for the Macquarie Group and evidence before the Tribunal establishes that she has always been in higher paid positions than the Other Party.[8] He works in two jobs, described by the Applicant as “full-time logistics position and some sort of part time casual employment.”
[8] Ibid at [92].
The Applicant states that her partner has never paid any of the “big bills” such as rent or mortgage payments and the bank statements tendered by both parties supports this assertion. The Applicant, in her oral evidence, claimed that the father only started making some payments on matters such as Medibank or insurance policies after their separation and then only on advice from his solicitors. Again, this assertion appears to be supported by the documentary evidence at least as far as the start of payments can be ascertained.
The current arrangement are that the child is in the full time care of the Applicant and that the father has her for a period of 1.5 hours each Tuesday and 2.0 hours each Thursday and Sunday. The child does not spend any nights with her father.
The Father
The father has submitted documentation by way of a statement of 3 June 2019 together with bank statements and copies of a letter from a Law Firm (being a copy of the Court Order of 30 Aril 2018); a copy of the Parenting Agreement of 30 November 2017 and copies of email correspondence between the parties together with screen shots of mobile telephone messages.
The Other Party asserts that he paid several bills in the period 23 April 2018 to 7 May 2018 which total $4358.58 covering items such as utility bills and home loan repayments. In addition, he paid some $192.86 towards costs associated with purchase of milk formula, Babify nappies and child-related items from Chemist Warehouse.[9]
[9] Father’s Submission dated 3 June 2019.
DISPUTE OVER CHILD CARE ARRANGEMENTS
There is evidence in the Other Party’s submission that the parties were in disagreement about the appropriate arrangements to be made for the provision of child care /day care services for the child. The Applicant made arrangements for the child to be placed in day care at a facility which was more convenient for her in terms of drop-off and pick-up arrangements while the father contends that this was a more expensive facility and that a less expensive facility was available – for which he was happy to contribute to payments and which was a reasonable alternative.
The Applicant made arrangements to place the child in a child care centre within the precinct she works whereas the father proposed a centre in Parramatta nearer to where he apparently now lives. The Parramatta option would obviously have been much more difficult for the Applicant given that the child resides permanently with her in their home in Drummoyne.
In their respective Submissions the Applicant states that when the child was not in care, that care was provided by her parents who she had brought from overseas, for this purpose, at her own expense. Moreover her parents’ visas having expired she needed to make changes in the arrangements (at higher costs) to accommodate this. The Other Party counters that he too brought his parents to Australia, at his own expense, for a similar purpose and that the Applicant knew that her parents’ visas were of limited duration and failed to plan accordingly. While there may be some validity in the Father’s latter point, it should be noted that his mother was only in Australia as a part-time carer for the child for approximately one month in September 2017.
DISPUTE OVER PARENTING AGREEMENT
The Father provided a copy of the Parenting Agreement of 30 November 2017 which provides, inter alia, that where “there is a parenting decision or topic to be discussed, they will provide the other parent with a proposal (to) include as many details as possible about the proposal…” (Section 4).
He goes on to provide evidence that a number of decisions made by the Applicant about the child’s care and management were made unilaterally by her without him being consulted or given the opportunity to participate in the decision-making process. A close reading of both the email correspondence between the parties and the screen shots of their mobile telephone discussions tend to support this assertion by the father, especially in relation to decisions about the appropriate child care placement and costs.
The Applicant does not effectively dispute that she makes the decisions about the child’s arrangements and welfare. She told the Tribunal in her oral evidence that, “I have to go ahead with decisions” because she has full-time responsibility for the child and the Father has never been in a position to do so himself.
DISPUTE OVER CONSENT ORDER
The Consent Order of 30 April 2018 provides that “within 21 days the party do all acts and things and sign all document necessary so as to effect a sale of the property” in which the parties had been living. It appears that this has not been done and the Other Party complains that the Applicant continues to live in the property and that, moreover, her parents also reside there. The Father also identifies a further investment property which is also available for sale if the parties so agree.
In her evidence the Applicant told the Tribunal that, contrary to the Father’s assertions, the reason that the property had not been offered for sale was that, after the appointment of an agent (by the Applicant as per the agreement), the agent had advised that some work should be done to improve the appearance of the unit prior to it being offered for sale and that even once this had been done it would be “ambitious” to expect the property to sell for $1.2 million. The agreement of the parties in the Consent Order was that the sale price was to be “no less than $1.4 million”. (Item 2.3).[10]
[10] Attached to Applicant’s Submission at [37].
DISCUSSION
Disputes such as this often place the Tribunal in a position of having to decide matters in the light of what the AAT1 described as “slim”[11] evidence from either party while each makes allegations of bad faith in relation to the other. The Tribunal does not intend to involve itself in discussion, let alone adjudication of these competing personal claims.
[11] Section 37 Tribunal Documents at [6].
It is also unfortunate that at the AAT1 hearing the Applicant was not present and at this hearing the Other Party was not present so that neither Tribunal has been in the position of being able to discuss issues with and hear from both parties at the same time and place.
Although the parties were separated on 1 September 2017 but remained under the same roof until 21 May 2018, the application for child support was only made by the Applicant on 13 April 2018 and hence any care percentage decision can only have effect from that date. This means that the whole dispute is over payments and entitlements dating from 13 April 2018 to 21 May 2018, a period of 38 days.
The Tribunal was advised by the Respondent that the sum in dispute were the original 100% determination have remained in place during the care period was $678.74, being arrears of $432.07 and further overpayment of $246.67.[12]
[12] Email advice from Respondent to Tribunal dated 1 August 2019.
The evidence before the Tribunal establishes quite clearly that the Applicant has been the principal provider of care for the child. There is little or nothing that establishes that the Father has made any significant financial contribution to the welfare of the child and that his level of emotional and physical support (at 5.5 hours per week) is minimal.
The Father’s claims against the Applicant in relation to her management of the child in terms of decision-making or her compliance with the Parenting Agreement or the Court Order are without foundation.
Any consideration of all of the factors identified in section 2.2.1 of the Child Support Guide (see above) leads to a conclusion that all of those are satisfied by the Applicant and that the child’s Father discharges none of the responsibilities and undertakes or has undertaken none of the financial support arrangements outlined.
DECISION
The decision under review is set aside and in substitution the Tribunal determines that the Applicant had 100% care of the Child from 1 September 2017 and that a recalculation of child support assessment for the period from 13 April 2018 to 21 May 2018 should be made accordingly.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...........................[sgd].............................................
Associate
Dated: 6 August 2019

Date(s) of hearing: 30 July 2019

Applicant: In person

Solicitors for the Respondent: Ms T Hibberd, Department of Human Services

Other Party: No appearance

[2019] AATA 2427

6 August 2019

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	30 July 2019
Applicant:	In person
Solicitors for the Respondent:	Ms T Hibberd, Department of Human Services
Other Party:	No appearance