KSKS and Child Support Registrar (Child support second review)

[2017] AATA 1276

KSKS and Child Support Registrar (Child support second review) [2017] AATA 1276 (15 August 2017)

Division:GENERAL DIVISION

File Number(s):      2016/5273

Re:KSKS

APPLICANT

AndChild Support Registrar

RESPONDENT

AndQKCH

OTHER PARTY

DECISION

Tribunal:Mr D. J. Morris

Date:15 August 2017

Place:Melbourne

The Tribunal affirms the objection officer’s decision of 4 June 2016.

.........................[sgd]...............................................

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 decision – objection officer decided 50 percent care to each parent separated under one roof – evidence of shared care of child – regard to policy when parents living in same residence – 50/50 percent care determined – objection officer decision affirmed

Legislation

Child Support (Assessment) Act 1989 (Cth) ss 49, 50, 54A, 54F, 54G, 54H

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Guide to Social Security Law (Version 1.233 – released 31 May 2017)

REASONS FOR DECISION

Mr D. J. Morris

15 August 2017

BACKGROUND

1. The identity of the Applicant in this matter is not published in accordance with a Direction made by Senior Member Cremean on 3 January 2017 under s 35(2)(aa) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The acronym ‘KSKS’ will be used to refer to the Applicant and the acronym ‘QKCH’ to refer to the Other Party.

2. KSKS applied for review of a decision of the Social Services and Child Support Division of the Tribunal (AAT1) of 18 August 2016 (T2, pp 3-8) which affirmed an objection decision by the Respondent that KSKS and QKCH each had 50 percent care of their minor daughter during the period that they were separated but living under the same roof.

3. The hearing was held on 19 May 2017 by telephone.  KSKS represented herself, QKCH represented himself and the Child Support Registrar (‘the Registrar’) was represented by Ms Lewis.

4. The Respondent tendered a bundle of documents under s 37 of the AAT Act (‘T-documents’) which were admitted into evidence.

5. The matter before the Tribunal was what percentage of care KSKS and QKCH each had for their daughter for the period 16 February 2015 to 6 December 2015 (called in these reasons ‘the care period’).

   What happened?

6. On 16 March 2015 KSKS contacted the Department of Human Services (‘the Department’) to register for a Child Support Assessment with QKCH.  KSKS advised that she and QKCH were separated under one roof and that she had 100 percent care of their daughter from 16 February 2015 (T3, p 9).  It was contended that QKCH agreed that they were separated under one roof and that KSKS had 100 percent care of the child. QKCH later disputed that he had ever agreed to this.

7. On 19 March 2015 the decision was made to accept registration of the child support base and both parents were notified (T4, p 16).

8. On 25 February 2016, QKCH lodged an objection to a decision made on 25 January 2016 to accept KSKS’s Application for Collection and in that objection, which is not before this Tribunal, he advised that on 1 March 2016 he and KSKS were living separated under one roof and QKCH was paying the rent, insurance, groceries and school costs until he moved out of the residence on 6 December 2015 (T5, p 20).

9. There was a file note dated 7 April 2016 (T8, p 101) from an officer of the Department which stated, inter alia:

   I advised [QKCH] that CSA [the Child Support Agency, part of the Department) have his evidence and that CSA would consider his evidence to determine if the AFC arrears were correct.

   …

   [QKCH] stated that CSA accepted the AFC arrears based on incorrect care percentages and stated from 16/03/2015 the care was 50/50 as he and [KSKS] were separated under the same roof.  I advised [QKCH] that CSA will not consider the care percentage with this current objection and that a decision would be made based on his care being 0% as this is what is currently recorded.

   I advised [QKCH] that he is able to object to the decision to re-start the assessment with [KSKS’s] care recorded as 100% from 16/03/2015.  QKCH elected to object to the decision… .

10. KSKS responded to the objection and a Departmental file note of 8 April 2016 (T8, p 104) recorded her confirmation that she and QKCH were separated but living under the one roof from February 2015 until the weekend starting 28 November 2015 when QKCH moved out.  KSKS went on to contend that she was fully responsible for their daughter and QKCH had no caring duties but she did not at that time provide to the Department evidence to prove that she had more than 50 percent care.

    THE LAW

11. The legislation applicable to this matter is the Child Support (Assessment) Act 1989 (Cth) (‘the Assessment Act’). Division 4 of Part 5 of the Assessment Act contains the rules for determining a person’s percentage of care of a child.

12. Sections 49 and 50 of the Assessment Act set out when a determination of percentage of care must be made and in determining a percentage of care, the Child Support Registrar must be satisfied that the person either has no pattern of care, under s 49, or a pattern of care that the Registrar considers to be appropriate having regard to all the circumstances (s 50).

13. If a care determination is revoked, a new care determination needs to be made and the Tribunal must determine the respective percentage of care that, under ss 49(3) and 50(3) of the Assessment Act “corresponds with the actual care of the child” that the Tribunal (standing in the shoes of the Child Support Registrar) “is satisfied that the responsible person has had, or is likely to have, during the care period.”

14. 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.

15. In this matter, it was common ground between the parties that KSKS and QKCH were living in the same house in the care period but separated.  In considering the initial decision, the delegate of the Registrar had regard to the relevant part of the Guide to Social Security Law (‘the Guide’) which discusses how to determine percentage of care when the two parents are living under one roof.  Instruction 2.2.1 of the Guide stated:

    Where parents are separated but living in the same house, the Registrar will determine each parent’s percentage of care based upon the care that is actually occurring for the child.  If the Registrar is not able to determine a care percentage based upon the actual care, the Registrar will generally accept that the parents share the care of their children equally.  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.

16. The Guide is provided to help officers administering the provisions of social security legislation.  It is not a statutory instrument and its provisions do not bind this Tribunal.  However, where it has been used to implement policy and aid in how a provision of the Act is to be exercised, it is logical that the Tribunal takes it into account, especially where the Act is silent on how a percentage of care for a child, or children, should be determined when the separated parents are living with the child in the same residence, as in this case.  In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J stated:

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.

17. The Tribunal respectfully adopts this position in regard to assessing the care of the subject child in the care period by KSKS and QKCH.

    Evidence of KSKS

18. KSKS said that during the care period she was supporting their daughter both financially and emotionally.  She said she was “putting a roof over her head, clothing her, and schooling.”  She told the Tribunal she was doing everything a parent should do for a child, including paying for excursions and materials that their daughter needed at school.

19. She gave evidence that QKCH was not working at this time and he was not in a financial position to support their daughter.  She conceded that QKCH paid the rent for their house during the care period and said that she provided meals each evening “either home cooked or bought”.

20. She conceded that QKCH paid the fee for their daughter’s out of school care once a week in the care period.

    Evidence of QKCH

21. QKCH agreed that during the care period he was not working; he said he was receiving a payment from Workcare because of a workplace injury that he had incurred and he was entitled to a Department of Veterans’ Affairs pension (although he did not say whether he was receiving such a pension at the time).

22. QKCH said that he would help their daughter get ready for school, take her to school and pick her up at the end of the school day.  He said that he would get her school lunch or give her money to buy lunch at the school canteen.

23. QKCH said that “I cooked her meals every night.”  He said he would take their daughter to social events from time to time such as the birthday parties of her school friends.

24. QKCH said he paid rent for the house that they all lived in during the care period and he paid the premium for the insurance policy for their household contents.

25. QKCH agreed that KSKS paid the majority of their daughter’s excursion fees.  He said that each of them had a motor car at the time and took responsibility for their own repayments for their respective car loans.

26. KSKS responded by saying that during the care period QKCH paid the car insurance on her car but that she, at this time, paid the account for his mobile telephone.  KSKS conceded that QKCH was paying for their daughter to buy lunch at school.

27. KSKS told the Tribunal that she took issue with QKCH saying he had never agreed to the original care decision, which was that she had 100 percent of care for their daughter.  She said that if the original decision had been 50/50 percent care, she would not have disagreed with that assessment.

    Consideration

28. The main area of dispute between the parties was in regard to the provision of meals for their daughter during the care period.  KSKS said that she provided meals each night, while QKCH said that he cooked their daughter’s meals each night.  Both of these statements cannot be true, but even if the Tribunal embarked on an exercise to try and allot who did provide the meals, I consider this would be a largely pointless exercise.  The fact is that both agreed that they provided meals during the care period.  It was also separately agreed by both parties that QKCH was providing lunch money during the care period for their daughter at school.

29. KSKS did not disagree that QKCH was taking their daughter to and from school, and QKCH did not disagree with KSKS was funding her excursions and other periodic school costs in the care period.

30. Both parties seemed to have arrangements at this time to share some costs, the example given by KSKS being car insurance and mobile phone accounts.

31. I am satisfied that QKCH was contributing substantially to the care of their child, especially through the uncontested fact that he was paying rent, paying for her after school care once a week, providing lunch money and preparing at least some meals.  I am also satisfied that KSKS was also providing some meals, and paying for excursion and extracurricular fees as they came due.

32. There were before the Tribunal three emails (T13, p 121, 122, 124) from three friends of KSKS which made various statements in support of KSKS.  The Tribunal gave little weight to these documents because the authors, while well-meaning, did not have relevant first-hand knowledge about the workings of the household during the care period.

33. A key concession from the Applicant came at the end of the hearing when she told the Tribunal that, had the original determination been for 50 percent care to each parent, she would not have made an objection.  Her complaint appeared not to be based on how the actual care of their daughter was shared during the care period, but more centred on QKCH’s later objection to the 100 percent /0 percent care determination originally made.

34. The Tribunal finds that the care of the subject child during the period commencing on 16 February 2015 was 50 percent care by KSKS and 50 percent care by QKCH.  The Tribunal notes that the Guide, at 2.2.1, states that “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 the event).” In the absence of any statutory provision in the Assessment Act, the Tribunal determines that the 50/50 care percentage between the parties applies for a twelve month period. AAT1 applied the child support assessment from the date QKCH lodged his objection, 7 April 2016, and the Tribunal affirms that decision (T19, p 172).

    DECISION

35. The Tribunal therefore affirms the objection officer’s decision of 4 June 2016.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Mr D. J. Morris

.....................[sgd]...................................................

Associate

Dated: 15 August 2017

Date(s) of hearing:	19 May 2017
Applicant:	In person
Advocate for the Respondent:	Belinda Lewis
Other Party:	In person