KSDJ and Child Support Registrar (Child support second review)
[2020] AATA 1715
•12 June 2020
KSDJ and Child Support Registrar (Child support second review) [2020] AATA 1715 (12 June 2020)
Division:GENERAL DIVISION
File Number: 2019/0916
Re:KSDJ
APPLICANT
AndChild Support Registrar
RESPONDENT
VWJWAnd
OTHER PARTY
DECISION
Tribunal:Mr S Evans, Member
Date:12 June 2020
Place:Sydney
The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant’s percentage of care was 76% and the Other Party’s percentage of care was 24% from 24 June 2017.
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Mr S Evans, 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 (Cth).
CATCHWORDS
CHILD SUPPORT – percentage of care – actual care – extent of care – parents separated but living in the same house – date of effect – decision set aside and substituted
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) ss 35, 50, 54(A), 54(F)
SECONDARY MATERIALS
Guides to Social Policy Law, Child Support Guide (11 May 2020)
REASONS FOR DECISION
Mr S Evans, Member
12 June 2020
INTRODUCTION
KSDJ is the Applicant in this matter. She seeks a review of a decision made by the Social Services and Child Support Division (“AAT1”) of this Tribunal which affirmed a decision of the Child Support Registrar (“the Registrar”). The Registrar determined on 18 August 2018 that KSDJ had 51% care of her child and the father VWJW had 49% care from 24 June 2017.
KSDJ objects to this decision because she contends the actual percentage of care provided by her was 85% and the other 15% of care was provided by VWJW. KSDJ also submits that the change to the care percentages was in effect backdated “retrospectively” and this has caused her detriment.
ISSUES
The issue for determination by the Tribunal is what is the appropriate percentage of care that should be assigned to KSDJ and VWJW for the 12 month period starting from 24 June 2017 (“the relevant care period”).
LEGISLATION AND POLICY
Percentage of care decisions are provided for in the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).
Part 5 of the Assessment Act provides for the administrative assessment of child support. Section 35 sets out a formula (“Formula 1”) which applies to cases where neither parent has another child support assessment and only the parents provide care for the children. Step 4 in Formula 1 is to work out each parent’s percentage of care for the child in accordance with Subdivision B of Division 4 of Part 5 of the Assessment Act.
In this matter the Registrar revoked the existing care determination under section 54(F) of the Assessment Act which provides that a determination must be revoked if there is a change to the responsible person’s care percentage:
(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).
(2) The revocation of the determination takes effect at the end of:
(a) if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:
(i) in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or
(ii) otherwise—the day before that change of care day; or
(b) if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended—the day on which the interim period ends; or
(c) otherwise—the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.
Subsections 54F(2)(a) and 54F(2)(b) are not applicable since the Registrar was not notified of the care change that occurred on 24 July 2017 within 28 days of that change.
Subsection 50(3) of the Assessment Act provides that any percentage determined under subsection 50(2) must be a percentage that corresponds with the “actual care” of the child that the Registrar is satisfied that the responsible person had during the care period.
Section 54A provides guidance to the decision-maker in working out the actual care and extent of care of a child:
54A 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.
(4) This section does not limit section 50, 51, 52 or 54.
Care is not defined in the Assessment Act, however guidance on determining a percentage of care is provided by the Child Support Guide (“the Guide”) at 2.2.1 Basics of care:
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.
The Guide also provides the following policy guidance regarding “percentage of care” in situations where parents are separated but living under the same roof:
Where parents are separated but living in the same house, the Registrar 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, the Registrar 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.
…
Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves. The Registrar will give weight to statements from both parents and any non-parent carers.
FACTS AND EVIDENCE
The Registrar has provided a timeline of the care arrangements between KSDJ and VWJW who are the separated parents of a five year old child (“the child”).
KSDJ and VWJW separated in March 2016 but continued living together. A child support assessment commenced on 28 May 2016 which recorded KSDJ having 86% care of the child and VWJW having 14% from 14 March 2016 with the date of effect being 28 May 2016.
On 2 March 2017 the existing percentage of care determination was revoked and a new percentage of care determination was made which recorded the care as 100% for KSDJ and 0% for VWJW from 16 February 2017.
On 23 April 2018 VWJW notified the Registrar that he had 50% care of the child as he had been living separated under one roof with KSDJ for the previous three years.
On 27 April 2018 KSDJ advised the Registrar that she and VWJW were separated under one roof but that KSDJ would be moving out soon. KSDJ further advised that she did not agree there was 50/50 care but did not dispute that VWJW had some care of the child.
On 1 May 2018 the Registrar revoked the existing percentage of care determination and a new percentage of care determination was made which recorded the care as 51% to KSDJ and 49% to VWJW from 23 April 2018. On 1 June 2018, KSDJ lodged an objection to the above decision.
On 6 June 2018, KSDJ notified the Registrar that she had 100% care of the child from 4 June 2018 as the father had moved out and they were no longer separated under one roof. On 7 June 2018, VWJW confirmed this care change.
On 7 June 2018, the Registrar revoked the existing percentage of care determination and a new percentage of care determination was made which recorded the care as 100% to KSDJ and 0% to VWJW from 4 June 2018.
On 18 August 2018, the Registrar partly allowed KSDJ’s objection to the 1 May 2018 decision. The objections officer found that the original decision, which revoked the existing percentage of care determination and determined 51% to KSDJ and 49% to VWJW from 23 April 2018, was correct but should be effective from 24 June 2017, as this was when the parents recommenced living together after a period of separation.
The objections officer also found the date of effect of this decision, for the purposes of child support assessment, was 23 April 2018 as the Registrar was not notified of the care change within 28 days.
On 24 June 2017 VWJW moved back in with KSDJ. The Details of the Objection Decision dated 18 August 2018 states the following:[1]
REASONS FOR DECISION
The information [KSDJ] provided in her objection is that since they separated they have been living under the same roof. [KSDJ] has explained the running of the household including the finances and the care of [the child] and considering this information we [the Registrar] are satisfied that the care is 50/50. The information does not show that [KSDJ] is providing a higher level of care than [VWJW].
[the child’s] care was previously recorded as [KSDJ] providing 100% care and [VWJW] providing 0% care from 16 February 2017. This is in contradiction to the information both parties have provided in which they claim they have been separated under the same roof from the date they first separated.
[VWJW] has explained that there was a period in February 2017 when he did move out of the family home… and also explained that he later moved back in 24 June 2017 …
… Considering the information available [the Registrar] are satisfied that at some point [VWJW] did move back into the family home and they were once again separated under the same roof…
Therefore the relevant care period is 24 June 2017 to 23 June 2018.
We determine the relevant 12 month care period is 24 June 2017 to 23 June 2018. We have also determined that from 24 June 2017 [KSDJ] provides 50% care of and [VWJW] provides 50% care of [the child].
Therefore we [the Registrar] are satisfied [KSDJ] provides 50% care and [VWJW] provides 50% care of [the child] from 24 June 2018.
[1] T-documents, T7 at p 85; T51 at p 219.
Evidence of KSDJ
KSDJ told the Tribunal that a lot of time had passed since the relevant period and she was relying on memory to recall many of the details. She said that the backdating of the care percentage meant that she owes a debt to Centrelink for Family Tax Benefit and that this will disadvantage her child.
In terms of the care that was provided, KSDJ says she was breastfeeding the child until she was four years old. She slept in the same bed as the child because she and VWJW were separated but living under the same roof. KSDJ said that she and VWJW led completely separate lives during this time.
VWJW was working full-time including some nights. They had an agreement that KSDJ would take the child to all the doctor’s appointments, swimming lessons and to day care. KSDJ contends that she was caring for the child 100% of the time.
KSDJ maintains that she made most of the major decisions regarding the child. Whilst KSDJ concedes that VWJW had some input into the decisions, he generally agreed with what KSDJ had determined.
During the relevant care period KSDJ would cook for the child and she would also cook for VWJW most of the time. VWJW would care for the child and used to cook for her occasionally, or if VWJW was not home. VWJW would also occasionally bath the child.
KSDJ has provided the Tribunal with some bank statements to say that she was making payments for the child’s childcare. KSDJ was also paying the rent but so was VWJW as they were splitting the rent 50/50. The childcare statement begins from 26 March 2018 but KSDJ says that she was paying for childcare before this date. However, before the Tribunal is a document which says that VWJW was paying $400 a fortnight for childcare and other expenses.[2] KSDJ claims that she does not recall VWJW ever paying for childcare fees on his own.
[2] T-documents, T17 at p 124.
CONSIDERATION
As KSDJ and VWJW were separated and living under one roof during the relevant care period, the Child Support Guide at 2.21 requires the Tribunal to consider the evidence available, noting that 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.
Noting the relative dearth of evidence, what is available does indicate both KSDJ and VWJW were contributing financially to rent, food and childcare.
It would appear that KSDJ was the primary carer and had overall responsibility for the child’s emotional and physical care. She made the decisions about the child and was ultimately responsible for the child’s activities and day to day arrangements. It is acknowledged that VWJW assisted at times, but responsibility sat with KSDJ.
KSDJ says that the care change was made “retrospectively” and she does not understand why that was done.
The AAT1 affirmed the Child Support Registrar’s objection that from 24 June 2017 KSDJ had 51% of the child’s care and VWJW had 49%. The AAT1 also affirmed the decision that the date of effect for that care change was 23 April 2018. The discrepancy for KSDJ occurs because the date of effect for child support purposes was the date that KSDJ notified the Child Support Registrar that the care percentage had changed. Whilst child support changes begin at the time of notification, percentage of care determinations used for other purposes, including Family Tax Benefit, are based on the actual care at the time.
KSDJ states that she had 100% care prior to the reassessment and 100% care after. She told the Tribunal that she makes all the decisions for her daughter and advises VWJW and that he never objects. The care pattern indicates that she was certainly more responsible for the child’s actual care than VWJW.
Balanced against this is the fact that they were living together and a greater share of care was conceded, including emotional support from VWJW, than what KSDJ was contesting.
Furthermore, in circumstances where it appears VWJW was paying for over half the share of rent and other associated costs it is reasonable to expect that his care would be greater than 14% as contended by KSDJ.
Making a determination is complicated by the lack of records but having regard to government policy set out in the Guide in determining percentage of care, I am satisfied that KSDJ has been able to demonstrate the actual care she provided the child was substantially greater than that of VWJW. Weighing all the evidence before the Tribunal I am satisfied that KSDJ’s percentage of care for the child from 24 June 2017 was 76% and VWJW’s percentage of care was 24%.
DECISION
The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant’s percentage of care was 76% and the other party’s percentage of care was 24% from 24 June 2017.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
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Associate
Dated: 12 June 2020
Date of hearing: 13 March 2020 Applicant: By phone Solicitors for the Respondent: Ms E Ulrick, Services Australia
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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Statutory Construction
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Procedural Fairness
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