LYNY and Child Support Registrar (Child support)

LYNY and Child Support Registrar (Child support) [2018] AATA 3032 (22 August 2018)
Division:GENERAL DIVISION
File Number: 2017/3937
Re:LYNY
APPLICANT

AndChild Support Registrar
RESPONDENT

AndRQGN
OTHER PARTY

DECISION
Tribunal:Senior Member B J Illingworth
Date:22 August 2018
Place:Adelaide

The decision under review is affirmed.
.................................[Sgd]....................................
Senior Member B J Illingworth
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 sections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.
CATCHWORDS
CHILD SUPPORT – Whether there was a change in the care percentage of the child –Assessment of actual care – Whether changes to care arrangement – The Mother’s evidence preferred – Decision under review affirmed
LEGISLATION
Child Support (Assessment) Act 1989 – ss 49, 50, 54A, 54F
Child Support (Registration and Collection) Act 1988 – ss 96A, 87AA(1)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guides to Social Policy Law – Child Support Guide, version 4.31, 3 April 2018 – Chapter 2.2.1
REASONS FOR DECISION
Senior Member B J Illingworth
22 August 2018
INTRODUCTION

This is a review of a decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) (“AAT1”) dated 31 May 2017, which set aside the original decision of the Respondent and substituted a decision that there was no change to the care percentages used in the child support assessment from 7 November 2016.
BACKGROUND
The Applicant LYNY (“the Father“) and the Other Party RQGN (“the Mother”) are the parents of two children, the elder child (“Child 1”) and the younger child (“Child 2”).
The Department of Human of Services – Child Support (“the Department”) has had a child support assessment in place since 2005 in respect of both children. Since then there had been variations in assessment in relation to Child 1. Child 2 has always resided in the care of the Mother.
The decision the subject of review relates to a carer’s percentage assessment made in respect of Child 1 from 7 November 2016.
It is helpful to provide some of the history of the care arrangements leading up to the AAT1 decision.
The Father, Mother, Child 1 and Child 2 resided together in the South East.
By 2016 the Mother was in a new relationship with a gentleman and Child 1 and Child 2 resided with the Mother and her partner in the South East. The Mother had a 100 percent care arrangement for Child 1.
In 2016 the Mother accepted a new employment position in the Adelaide metropolitan region which commenced on 4 April 2016. The Mother moved to the Adelaide metropolitan region with Child 2. Her partner remained in the South East but their relationship continued.
Child 1 remained in the South East and resided with the Father. From that time the Father was then paying all outgoings in respect to Child 1, including his school fees. It was agreed that the Father then had 100 percent care arrangement for Child 1.
That care arrangement continued until June 2016 when Child 1 and the Father argued. Child 1 came to the Adelaide metropolitan region on 24 and 25 June 2016 and resided with the Mother. He then returned to the South East and boarded with the Mother’s partner. The Mother thereafter paid all outgoings in respect of Child 1, including his school fees.
Relevantly, on 7 September 2016, a decision by the Child Support Agency[1] was made with respect to Child 1’s care percentage namely that from 29 June 2016, the Mother had 100 percent and the Father 0 percent care percentage of Child 1. The Father requested a review of that decision, which was dismissed by a decision dated 22 November 2016.
[1] Exhibit 1, T8 - T11.
A brief change again occurred with respect to the care of Child 1 following an argument that he had with the Mother’s partner. That change is referred to in an email from the Mother to the Department dated 8 November 2016, which relevantly says as follows:
Effective from Monday 7/11/16 [Child 1] will be in FULL financial care of his father, including private school (although I don’t believe this will last) and braces. I will have access to [Child 1] for one weekend per month plus half of school holidays, ie 75 days per year at 21%.[2]
[2] Exhibit 1, T16 p 55 (emphasis in original).
That new arrangement was short‑lived and a few days later Child 1 returned to board with the Mother’s partner. Both the Father and the Mother agreed in evidence before me that the carer arrangement that previously occurred from about 29 June 2016 was then reinstated and continued.
It appears that the Department was not advised of the return to the previous carer arrangement and on 26 November 2016 the Department decided to revoke the care percentage previously granted such that from 7 November 2016 the Father had a care percentage assessment of 30 percent and the Mother a care percentage of 20 percent for Child 1.[3]
[3] Exhibit 1, T20 p 67 and T21, p 69.
The Mother emailed a written objection to the Department on 17 January 2017 at 5:52pm advising of the return to the previous care arrangement. She relevantly said:
… [Child 1] only stayed a few days and then went back to his boarding arrangements.
I would like to confirm that [Child 1] remains 100% under my care and has done so since June (as per the previous determination). He is in a boarding arrangement, just like a child who boards at school away from home. I am 100% responsible for all financial, physical, emotional and education requirements for my two children.
The situation is that I have 100% care of both [Child 1] and [Child 2]. [4]
[4] Exhibit 1, T24, p 77.
On 16 March 2017 an objection officer decided that the Mother’s objection be disallowed[5] and on 27 March 2017 the Mother made an application to the AAT1 for review of the objection officer’s decision.
[5] Exhibit 1, T30, p 97.
The application for review was heard by AAT1 on 31 May 2017 and a decision published that day, setting aside the previous decision and substituting a decision that there was no change in the care percentage used in the child support assessment for Child 1 from 7 November 2016.
The Father now seeks a review before this Tribunal (“AAT2”) of that decision of AAT1 dated 31 May 2017.
For care percentage decisions, provision is made for further merits review by AAT2 pursuant to s 96A(b) of the Child Support (Registration and Collection Act) 1998 (“the Registration Act”).
Given the passage of time that had lapsed from the revocation and substitution of the care percentage assessment made on 26 November 2016, should any change be made to that percentage care assessment it was to take effect from 18 January 2017 pursuant to s 87AA(1) of the Registration Act.
ISSUE FOR DETERMINATION
The issue for the Tribunal in this case is to determine the appropriate percentage of care that the Father and Mother had of Child 1 from 7 November 2016.
THE LAW
The legislation applicable to this matter is the Child Support (Assessment) Act 1989 (“the Assessment Act”) and the Registration Act. Division 4 of Part 5 of the Assessment Act contains the rules for determining a person’s percentage of care of a child.
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 (s 49), or the person has had or is likely to have a pattern of care for the child during the care period having regard to all the circumstances (s 50).
Section 54F of the Assessment Act is concerned with the revocation of a percentage of care where there is a change of a parent’s cost percentage. Specifically, s 54F provides that, if a determination of a parent’s existing percentage of care for a child has been made under s 50, and the Registrar is notified or becomes aware that the care of the child that is actually taking place does not correspond with the parent’s existing percentage of care for the child, the Registrar must revoke the existing care determination.
If a care determination is revoked, a new care determination needs to be made. The Tribunal must determine the respective percentage of care that corresponds with the “actual care” of the child in which 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.
Section 54A of the Assessment Act 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, 53B or 54.
The Guide to Social Security Law (‘the Guide’) provides further guidance on the administration of the provisions of social security legislation including how to determine percentage of care. The Tribunal is not bound by the Guide however the Tribunal should consider the guide in their determination unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Chapter 2.2.1 of the Guide further provides that a care period is generally a 12 month period from the date on which the actual care of a child changed. A care period may commence or end upon a significant change in the actual care of the child.
The Guide sets out a number of considerations to determine the extent to which a person is caring for a child, namely:
×To what extent the person has control of the child, including having overall responsibility for the child and making:
omajor decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities; and
oarrangements for others to meet the needs of the child…
×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.
Percentage of care is also considered with respect 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.[6]
[6] Guides to Social Policy Law – Child Support Guide, version 4.31, 3 April 2018, Chapter 2.2.1.
THE FATHER’S EVIDENCE
Following the Mothers move to the Adelaide metropolitan region, the Father cared for Child 1 for approximately three months. This included paying all outgoings including school fees.
Difficulties occurred between Child 1 and the Father and Child 1 moved out.
Child 1 lived briefly with his aunt and uncle but then moved in with the Mother’s partner. There was period of tension between the Mother’s partner and Child 1, and Child 1 returned to live with the Father, albeit briefly before he then returned to board with the Mother’s partner.
The Father continued to see Child 1 about two to five times a week and would pick him up from the Mother’s partner’s home to join him for an evening meal. The Father would then return Child 1 to the Mother’s partner’s home. The Father’s mother (Child 1’s grandmother) also saw him regularly. Child 1 played soccer and the Father would on occasion pick him up from soccer and take him home to the Mother’s partner’s home.
After Child 1 started to drive and from in around September/October 2017 he has been more independent.
The Mother’s partner moved to the Adelaide metropolitan region about 12 months ago from which time Child 1 has lived with friends in the South East. He did not return to live with the Father.
From the time the Mother moved to the Adelaide metropolitan region she would return to the South East most Fridays to see Child 1 over the weekend. After some time the visits were less frequent and about every two to three weeks she would return to the South East. She continued to do this regularly.
When Child 1 lived with the Father, the Father re‑enrolled Child 1 at his school but in the Father’s name. The Father paid all the school fees and out goings, such as food and general living expenses.
However, when Child 1 returned to board with the Mother’s partner, the Mother paid all outgoings with respect to Child 1.
The Father described himself as having a limited disposable income, particularly after child support payments were automatically deducted from his income, but he would give Child 1 money if he needed it.
After the Mother’s partner moved to the Adelaide metropolitan region the Mother continued to pay all outgoings and made all decisions with respect to Child 1 and his care.
Child 1 was receiving, and continues to receive, a living away from home allowance even while he resides at the home of some friends.
Child 1 has had trouble at school and in particular with his attendance. The Father has attended two meetings with the school to discuss these issues and the Mother attended the second of those meetings.
The Father’s evidence was very general in nature and he was unable to provide much detail in relation to dates or events. He sounded, in some respects, to be unprepared in relation to the hearing before the Tribunal. Nonetheless, I accept that the Father tried his best to assist the Tribunal and was honest and frank in his evidence.
The Father acknowledged however, that since Child 1’s return to live with the Mother or board with the Mother’s partner, the Mother has played the major role in caring for Child 1 and supporting him. The Father said he enjoys a good relationship with Child 1 and they are more like mates.
In his final address to the Tribunal, the Father acknowledged that the Mother had done a “fantastic job” caring for Child 1, that he did not currently support Child 1 financially but he did not agree with the percentage care assessment.
THE MOTHER’S EVIDENCE
The Mother gave clear and detailed evidence in relation to all aspects of Child 1’s care arrangements, supported by calendar records which she maintained meticulously.
The Mother started in her new job on 4 April 2016 and Child 1 remained with the Father for about three months until 28 June 2016. During this time, the Mother agreed that the Father had 100 percent of the care of Child 1.
The Father and Child 1 argued on 23 June 2016 and on 24 and 25 June 2016 Child 1 stayed with the Mother in the Adelaide metropolitan region. He returned to the South East on 26 June 2016 and resided with the Mother’s partner. She described Child 1 as being a boarder. She was not aware of Child 1 spending any time with his aunt and uncle as suggested by the Father.
The Mother said that she was then required to re‑enrol Child 1 at his school under her name. She did not understand why this had become necessary as Child 1 had been previously enrolled in the joint names of the Father and the Mother.
From 26 June 2016 the Mother then paid all outgoings with respect to Child 1, including medical, physio, education, and other daily living expenses. She said she provided psychological support and guidance to Child 1, which I accept.
On 8 November 2016, Child 1 had an argument with the Mother’s partner and returned briefly to live with the Father. This arrangement she confirmed in an email communication to the Department dated 8 November 2016.[7] That change in arrangement was for about one week. She said that Child 1 needed to settle and he did not want to live with the Father but also did not want to come to the Adelaide metropolitan region.
[7] Exhibit 1, T16, p 55.
Child 1 returned to board with the Mother’s partner. There was no change in any arrangement in that short period and the Mother continued to meet all outgoings and provide emotional support to Child 1. She also said that she paid all orthodontic, health, living arrangements and prepared him meals which she brought with her to the South East. She also said that she paid for his other expenses such as telephone, lap top and following a motor vehicle accident, the repair costs to his car.
The Mother says that she pays for the fuel, clothes, and formats and updates his resume for various job applications as required. She also provides meals from time to time to the family with whom Child 1 boards, to assist them with his care arrangement.
In respect to Child 1’s emotional support the Mother said that she contacts him daily and at times has to bolster his self‑confidence and his plans for life, and reinforce his educational needs.
She said that Child 1 was in the Adelaide metropolitan region at the moment having arrived on Monday, 11 June 2018. She had been in contact with his teacher to ensure that he had school work available to him whilst in the Adelaide metropolitan region. He was to return to the South East on 15 June 2018.
The Mother explained Child 1’s plans for the future, which she has discussed with him at length. In the immediate future that includes completing Year 12. He turns 18 years of age in September 2018, and in October he will undertake a sports related trip interstate and then upon his return will move to the Adelaide metropolitan region in or about November 2018.
CONCLUSION
The Father’s evidence was, as I have said, very general and apart from outlining occasions when Child 1 might join him, his partner and their son for dinner, or occasional arrangements to pick up Child 1 after sport, there was insufficient detail to enable any consideration as to what, if any, care percentage could be fairly and properly attributed to the Father.
I found the Father to be an honest and loving parent, but otherwise his evidence did not assist me to any extent in addressing any complaint the Father had with the decision of AAT1.
The Mother was also honest. However, unlike the Father, her evidence was detailed, she provided dates and circumstances of events, but also she satisfied me that she has been providing the financial, emotional care and support to Child 1 including from 7 November 2016.
It is particularly noteworthy that the Father, to his credit, and the Mother both agree that care arrangements for Child 1 post 17 November 2016 was the same as the arrangement that was the subject of a decision of the Department from 29 March 2016 until 7 November 2016; that the Mother had a care percentage of 100 percent and the Father’s care percentage was 0 percent of Child 1.
The decision of AAT1 to set aside the earlier decision and substitute a finding that there had been no change in the care percentage used in child support assessment for Child 1 from 7 November 2016 was the correct decision based on the evidence before me.
THE DECISION

The decision under review is affirmed.

I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

............................[Sgd]........................................
Administrative Assistant - Legal
Dated: 22 August 2018

Date of hearing: 14 June 2018

Applicant: Self-represented via telephone

Advocate for the Respondent: Katherine Whittemore

Other Party: In person

[2018] AATA 3032

22 August 2018

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Date of hearing:	14 June 2018
Applicant:	Self-represented via telephone
Advocate for the Respondent:	Katherine Whittemore
Other Party:	In person