KJKB and Child Support Registrar (Child support second review)
[2016] AATA 1019
•13 December 2016
KJKB and Child Support Registrar (Child support second review) [2016] AATA 1019 (13 December 2016)
Division
GENERAL DIVISION
File Number
2015/3795
Re
KJKB
APPLICANT
And
Child Support Registrar
RESPONDENT
And
FLGR
OTHER PARTY
DECISION
Tribunal Deputy President J W Constance
Date 13 December 2016 Place Sydney 1. The decision of the Child Support Registrar made 3 October 2014, allowing the objection of Ms F made 26 June 2014 in relation to the percentage of care of the three sons, is set aside.
2. In substitution it is decided that the objection of Ms F made 26 June 2014 to the decision of the Child Support Registrar in relation to the percentage of care of the three sons, is dismissed.
3. The decision of the Child Support Registrar made 3 October 2014, amending the percentage of care of the daughter to 100% by Ms F, is affirmed.
...............[sgd].........................................................
J W Constance
Deputy PresidentNames 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 – actual care – care period – changes to care arrangement – inconsistent evidence establishing nights of care – decision relating to sons set aside and substituted – decision relating to daughter affirmed
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) ss 49(1)(b)(i), 50, 54F(1), 54H(1), 55C
Child Support (Registration and Collection) Act 1988 (Cth)
SECONDARY MATERIALS
Child Support Guide, version 4.20, 7 November 2016
REASONS FOR DECISION
Deputy President J W Constance
13 December 2016
INTRODUCTION
Mr K (the Applicant) and Ms F (the Other Party) were married to each other. They separated in 2008.
There are four children of the marriage, a son (aged 19), a daughter (aged 17) and two sons aged 15 and 10.
In October 2014 the Registrar decided to change earlier determinations made concerning the percentages of care of each child undertaken by Mr K and Ms F. These determinations were made for the purpose of calculating payments of child support in accordance with the Child Support(Assessment) Act 1989 (Cth). In June 2016 the Social Security Appeals Tribunal affirmed the Registrar’s decisions.
Mr K has applied to this Tribunal to review the decision of the Social Security Appeals Tribunal. For the reasons which follow the decision in respect of the sons will be set aside. The decision in respect of the daughter will be affirmed.
BACKGROUND
Following their separation, the parties were able to reach agreement as to the care arrangements for the children. With some variations, they spent five nights per fortnight with their father. After a time, when Ms F was working and studying and Mr K was required to spend more time travelling for work purposes, changes were made to this arrangement.
On 16 January 2014 the Registrar made percentage of care decisions that Ms F had 61% care of the sons and Mr K had 39%. On 6 February 2014 the Registrar made a decision in respect of the care of their daughter of 78% by Ms F and 22% by Mr K.
On 26 June 2014 Ms F applied to the Registrar for a change in the care determination in respect of each of the four children. At the time she claimed that she was providing increased care for each of them. The Registrar rejected this application.
On 13 August 2014 Ms F lodged an objection to the decision rejecting her application.
On 3 October 2014 the objection was allowed and it was determined that:
·the percentage of care for the three sons was amended to 80% by Ms F and 20% by Mr K;
·the percentage of care for their daughter was amended to 100% by Ms F.
These decisions took effect from 26 June 2014.
On 16 June 2015 the Social Security Appeals Tribunal affirmed the decisions referred to in the preceding paragraph.
Mr K has applied to this Tribunal to review the decision of the Social Security Appeals Tribunal.
LEGISLATION
The relevant Acts are the Child Support (Assessment) Act 1989 (Cth) (‘the Assessment Act’) and the Child Support (Registration and Collection) Act 1988 (Cth) (‘the Registration Act”).
Requirement that an existing care determination be revoked
An existing care determination must be revoked before a new determination can be made: see sections 49(1)(b)(i) and 50(1)(b)(i) of the Assessment Act.
A determination must be revoked if there is a change to a responsible person’s percentage of care that would result in a change to the person’s cost percentage in relation to a child
Section 54F(1) of the Assessment Act provides:
(1) 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)if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and
(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
(e)section 54G does not apply;
the Registrar must revoke the determination.
Note: The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
The Registrar may revoke a determination of a responsible person’s percentage of care if there is a change in the percentage of care that does not result in a change to the relevant cost percentage
Section 54H(1) of the Assessment Act provides:
(1) 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)if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and
(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, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person’s percentage of care for the child, the other percentage would not be the same as the person’s existing percentage of care for the child; and
(e)sections 54F and 54G do not apply;
the Registrar may revoke the determination.
Note: If the Registrar revokes the determination, the Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
A responsible person’s percentage of care must be determined if a person has a “pattern of care” of a child
Section 50 of the Assessment Act provides:
(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; or
(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.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(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.
(4) Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.
ISSUES FOR DETERMINATION
The following issues arise for determination in this application.
(1) Should the care percentage determination made on 16 January 2014 in respect of the sons be revoked?
(2) If the determination in respect of the sons is revoked, what is the percentage of care that each party had during the relevant care period?
(3) Should the care percentage determination made on 6 February 2014 in respect of the daughter be revoked?
(4) If the determination in respect of the daughter is revoked, what is the percentage of care which each party had during the relevant care period?
EVIDENCE
Mr K’s evidence
Following a mediation in December 2013 the parties reverted to an earlier arrangement of the children spending five nights per fortnight with Mr K. By early 2014 these nights were Thursday to Sunday inclusive during one week and Thursday of the following week. On occasions the children spent six nights per fortnight with their father.
During the football season in 2014 a change was made to accommodate the sons’ attending training. Under this arrangement, on a fortnightly basis they spent Friday to Monday nights inclusive and the following Monday night with their father.
From mid-2014 their daughter expressed a wish not to stay at Mr K’s apartment with her brothers and preferred to stay with Ms F who was living close to her school. With Mr K’s agreement, the daughter spent considerably less nights in the care of Mr K. From that time the occasions on which their daughter was in the care of Mr K overnight were “sporadic”. She spent one or two nights per fortnight with him on average. However the sons continued to spend five nights per fortnight with him.
In June 2014 Ms F applied to the Registrar for an order changing the determination of the level of care of the children. In July 2014 the Registrar advised the parties that there would be no change in the determination of the level of care or the rate of payment of child support.
The arrangements for the care of the children continued as set out above until December 2014. Commencing on 23 December 2014 all four children spent the following two weeks in the care of Mr K on holiday. They then spent two weeks with their mother. At the end of this holiday period Mr K and Ms F agreed that they would share the care of the children equally, commencing on 5 February 2015.
On 1 February 2015 the Registrar made a new decision in relation to the pattern of care, effective from 2 February 2015. This decision is not subject to review by the Tribunal.
During the care period Mr K kept a spreadsheet record of the nights the children spent with him.[1] He prepared this spreadsheet from notes made from time to time. He has discarded the original notes.
[1] Exhibit A2.
Evidence of Ms W
Ms W provided a statement dated 6 November 2015[2] and gave evidence.
[2] Exhibit A11.
Ms W and Mr K have been in a relationship since 2009. They maintain daily contact with each other but do not co-habit.
In her statement Ms W said in part:
Throughout my relationship with [Mr K], I have had a first-hand view of the overnight care arrangements that [Mr K] and [Ms F] put in place and I have a clear and intimate knowledge of the time he spends with all of his children. It is in this knowledge that I can confirm he has had overnight care of all four of his children on a five night per fortnight basis at his apartment ……
……
On many occasions I saw the children come and stay with [Mr K] outside of his normal 5 night care routine. I witnessed them all stay with [Mr K] individually and all together at times when he was not supposed to have them. [The eldest son] did this frequently at his own request often contacting [Mr K] with limited notice to come over and stay.
Ms W gave oral evidence that she spoke to the children by telephone most Monday nights when they were at Mr K’s apartment. Sometimes they stayed at her home. At times Mr K borrowed her car to transport the children to and from school and sports training.
Additional witness statements relied upon by Mr K
Mr K relied upon four additional statements by various witnesses.[3]
[3] Exhibits A3 –A6 inclusive.
While these statements confirm that the children were in the care of Mr K from time to time, none of the authors of those statements indicate the basis for his or her opinions as to the detail of the ongoing care arrangements. In the absence of this it appears that each of the statements is based largely on information provided by Mr K and are of little assistance in resolving the issues in dispute in this matter.
Evidence of Ms F
Ms F provided a statement dated 17 December 2015[4] and gave evidence.
[4] Exhibit OP1.
Ms F confirmed that in December 2013 she and Mr K agreed that the four children would spend five nights per fortnight with Mr K. However, according to Ms F, Mr K was “really inconsistent” in his caring for the children and on occasions did not collect them from school as arranged. It was this inconsistency which caused her to apply to the Registrar in June 2014 for a determination as to the care of the children.
Ms F denied that Mr K regularly cared for the boys on a Monday night after they attended football training. She says that she took them to the training, waited for them and took them to her home afterwards. They spent a Monday night with their father “maybe once per month”. Ms F stated that the sons spent on average three nights per fortnight with their father.
Further, Ms F denies that the spreadsheet prepared by Mr K is an accurate record of the nights the children spent with Mr K during the relevant period. She said that she did not maintain detailed records herself but that she was able to identify several dates on which she says the children were in her care, and not that of Mr K. These were:
·1 July 2014 when she expected Mr K would care for the children and she had to make other arrangements for them;
·5 July 2014 when the daughter stayed with her;
·6 March 2014 when Mr K did not care for the children as arranged;[5]
·24-27 July 2014 when the daughter stayed with a relative, not Mr K[6];
·6 October 2014 when the sons spent the day with her[7];
·10 October 2014 when the children took part in a family celebration with her[8].
[5] Exhibit OP1 attachment A.
[6] Exhibit OP1 attachment C.
[7] Exhibit OP1 attachment E.
[8] Exhibit OP1 attachment D.
Ms F claims that there are many more inaccuracies in the spreadsheet produced by Mr K about which she is unable to be precise.
When asked whether there had been periods prior to 2014 during which there were disputes as to the extent of the parties’ care of the children, Ms F replied that “there may have been”. She said that “she could have, and should have, documented” the times the children spent with Mr K during 2014.
The daughter spent very few nights with Mr K between April 2014 and February 2015 other than the holiday in Melbourne in December 2014. The nights spent with Mr K in this period were less than 52.
Statement of Mr M
Mr M provided a statement which is attachment F to Ms F’s statement. He did not give evidence.
Ms F and Mr M met in June 2014 and have lived together since November of that year.
Mr M stated that there were “several days when either [Ms F] or I would go to [the youngest son’s] school in the afternoon on the days of [Mr K’s] care to avoid him being left standing at the school gates.”
Additional witness statements relied upon by Ms F
Ms F provided two further statements in corroboration of her evidence as to the care of the children.[9]
[9] Exhibit R1 pp.172-174.
As with the additional statements relied upon by Mr K, I cannot give this evidence any weight in the absence of evidence as to the basis for it. The statements appear to be based on information provided by Ms F. It is extremely unlikely that the maker of either statement had personal knowledge of the relevant matters referred to.
FINDINGS OF FACT
Clearly there is considerable animosity between Mr K and Ms F. However, it is equally clear that they both have always taken an active role in the care of their children. It is to be noted that the eldest son is now 19 years old and is no longer the subject of care determinations.
The relevant care period
Prior to the determinations in dispute, the determination in respect of the sons was made on 16 January 2014 and the determination in respect of the daughter was made on 6 February 2014. As a further unchallenged determination in respect of each child was made on 1 February 2015 with effect from the following day, the relevant “care period” in respect of the sons is from 16 January 2014 until 1 February 2015 and from 6 February 2014 until 1 February 2015 in respect of the daughter.[10]
[10]“Care period” is not defined in the legislation. The Child Support Guide (at 2.2.1) includes the following:
Care period
A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. 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). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.
Care periods other than 12 months
While a care period would generally be the 12-month period starting from the date the actual care of the child changed, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate. The Registrar will consider the specific circumstances of each case to determine the appropriate care period.
The care of the sons
On the basis of the evidence of Mr K and Ms W I am satisfied that during the relevant care period the care of the sons continued on the basis of the agreement reached by Mr K and Ms F in December 2013, i.e. five nights per fortnight for 48 weeks per year plus 14 nights during the Christmas holidays, being a total of 144 nights per year. This equates to 39% of the care period.
In making this finding I accept the evidence of Ms F that there are some inaccuracies in the records kept by Mr K. However I am satisfied that those which she identified probably were offset by the children staying with their father on alternate nights. The only record of the time the children spent with Mr K is that contained in the spreadsheet, which Mr K says was compiled from contemporaneous records kept by him. On the other hand, Ms F did not keep any similar records despite her being aware that it would have been wise for her to have done so in view of the previous disputes between the parties.
I accept also that there were times when, by reason of work and study commitments the agreed care arrangements were varied to suit the convenience of one or more of the parties. It would be difficult to believe that such variations would not have taken place from time to time.
In this situation I place considerable weight on the only written record of the care given by Mr K. It supports his claim that he cared for the sons on a 5 night per fortnight basis.
The care of the daughter
Mr K agreed that from about the middle of 2014 his care of the daughter was “sporadic” except for the period of two weeks during the school holidays. On the basis of the spreadsheet prepared by Mr K he had the care of his daughter during 13% of the time from 24 June 2015 (being the date of effect of the subject determination) and 2 February 2015 (the date of effect of the subsequent determination).
CONSIDERATION
Issue 1: Should the care percentage determination made on 16 January 2014 in respect of the sons be revoked?
The determination in respect of the sons in force immediately prior to 16 January 2014 was that Ms F had care of them for 61% of the time and Mr K for 39% of the time. I have decided that these care arrangements continued until 1 February 2015, being the end of the relevant care period. On this basis the determination of 16 January 2014 should not be revoked. It follows that the reviewable decision made 3 October 2014 allowing Ms F’s objection and determining a different percentage of care should be set aside and Ms F’s objection dismissed.
Issue 2: If the determination in respect of the sons is revoked, what is the percentage of care which each party had during the relevant care period?
This issue does not arise for determination.
Issue 3: Should the care percentage determination made on 6 February 2014 in respect of the daughter be revoked?
On the basis of my finding that between 24 June 2014 and 1 February 2014 Mr K had care of his daughter for 13% of the time, his cost percentage in respect of her care was nil in accordance with the Table contained in section 55C of the Assessment Act. That section provides that if the percentage of care of a child is “0 to less than 14%”, the cost percentage is “nil”.
The reviewable decision made 3 October 2014 was that Ms F had care of the daughter 100% of the time. However, in accordance with the discretion given by section 54H of the Assessment Act I have decided that it should not be revoked as to do so would not change Mr K’s cost percentage in respect of the relevant period. It is to be noted that the decision that both his percentage of care and his cost percentage were nil came into effect on 24 June 2014.
CONCLUSION
The decision of the Child Support Registrar made 3 October 2014, allowing the objection of Ms F made 26 June 2014 in relation to the percentage of care of the three sons, will be set aside.
In substitution it will be decided that the objection of Ms F made 26 June 2014 to the decision of the Child Support Registrar in relation to the percentage of care of the three sons, will be dismissed.
The decision of the Child Support Registrar made 3 October 2014, amending the percentage of care of the daughter to 100% by Ms F, will be affirmed.
I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. ..............[sgd]..........................................................
Associate
Dated 13 December 2016
Date of hearing 5 May 2016 Date final submissions received 18 July 2016 Applicant In person Solicitors for the Respondent Ms L James; Department of Human Services Other Party In person
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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Statutory Construction
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Remedies
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Procedural Fairness
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