MQMV and Child Support Registrar (Child support second review)
[2020] AATA 980
•24 April 2020
MQMV and Child Support Registrar (Child support second review) [2020] AATA 980 (24 April 2020)
Division:GENERAL DIVISION
File Number(s): 2017/7060
Re:MQMV
APPLICANT
AndChild Support Registrar
RESPONDENT
AndQDXX
OTHER PARTY
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:24 April 2020
Place:Sydney
The decision under review is affirmed.
..........................[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 (Cth).
CATCHWORDS
CHILD SUPPORT – percentage of care – actual care – delegated care – care period – cost percentages – revocation of percentage of care determination – decision under review affirmed
LEGISLATION
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Tribunals Amalgamation Act 2015 (Cth)CASES
Child Support Registrar v MVMQ [2019] FCA 1171.
Malcolm v Malcolm [2012] SSATACSA 1 at [26].
P v Child Support Registrar [2013] FCA 1312
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
Re MQMV and Child Support Registrar (Child Support Second Review) [2018] AATA 2924
VXQB and Child Support Registrar (Child support second review) [2020] AATA 697SECONDARY MATERIALS
Dennis Pearce: Administrative Appeals Tribunal (LexisNexis, Butterworth, 4th edition, 2015)
Child Support Guide
REASONS FOR DECISION
Chris Puplick AM, Senior Member
24 April 2020
This is an application by MQMV (the Applicant) seeking a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) which, on 2 November 2017, affirmed a decision by the Child Support Registrar (the Respondent) not to vary the percentage of care which the Applicant had in relation to a child, hereafter referred to as Child C2 (born September 2000).
The Other Party to these proceedings is the Applicant’s former wife, QDXX.
The order sought by the Applicant is stated, by him as follows:
“That I had 100% care of [C2] as submitted in the evidence to the Tribunal for the period from the 29/3/2017 to 1/5/2017.
Filing Fee costs.
Nominal cost’s (sic) for this matter including preparation of documents and postage.”[1]
[1] Applicant’s Submission dated 31 January 2020 page 6.
The latter part of this application may be dismissed immediately; the Tribunal has no general power to award costs or anything similar to applicants.[2]
[2] There are some very limited specific instances where costs may be awarded, however none relate to the social security legislation. See Dennis Pearce: Administrative Appeals Tribunal (LexisNexis, Butterworth, 4th edition, 2015) at 18.1
The Facts
MQMV and QDXX are the separated parents of two children: C1 and C2.
On 21 December 2012, Orders were made in the Federal Magistrates Court, under the provisions of the Family Law Act 1975 which provided, inter alia, that:
(a)Child C2 “shall live with the mother”;
(b)Child C1 “shall live with the father”;
(c)Child C2 “shall spend time with the father” according to an attached schedule.[3]
[3] Section 37 Tribunal Documents (T Documents) at [142]-[143].
By further Orders of the Court dated 6 February 2013 parenting arrangements were determined. Child C1 was to remain with the father and Child C2 with the mother. In addition, it was ordered that, inter alia:
(a)Child C2 was to spend time with the father and brother each alternate weekend from 5:00 pm Friday to 5:00 pm Sunday;
(b)“the children shall spend time with the other parent as otherwise agreed between the parties”;
(c)“the children spend time with each other and each parent for alternate weeks during school holidays as agreed between the parties failing agreement with the father for the first half of the first term school holidays and then alternating thereafter”.[4]
[4] T Documents at [150].
Following some sort of incident, Child C2 came before the Children’s Court where he was granted bail on the following conditions:
(a)“not to enter the property or grounds of [the property located next door to QDXX’s then place of residence]”;
(b)“to reside at [the home of MQMV] from 29/3/2017”.
These bail conditions were varied on 5 June 2017 to confirm that C2 was to reside at his grandparent’s home.[5]
[5] Order of Children’s Court, Other Party Submission OP7.
A Child Support Assessment was determined on 26 October 2015 which, in relation to Child C2 set the mother’s care percentage at 78% and her cost percentage at 76% while the father’s care percentage was 22% and his care percentage 24%.[6]
[6] Under the Child Support (Assessment) Act 1989. T Documents at [175]-[177].
At the same time the income level of both parties was assessed, and it was determined that neither party was required to pay the other party anything in terms of child support.[7]
[7] Ibid at [176].
The period in dispute
It is agreed that the following arrangements were in place in relation to Child C2 between 29 March 2017 and 1 May 2017:
·From the night of 29 March 2017 until the morning of 8 April 2017 Child C2 resided with his father;
·From the morning of 8 April 2017 to the morning of 19 April 2017, by agreement of the father and mother, Child C2 resided with his maternal grandparents;
·From the morning of 19 April 2017 to the morning of 1 May 2017 Child C2 resumed residing with his father;
·On the morning of 1 May 2017 Child C2 left residing with his father and returned to reside with his grandparents.
There is a degree of confusion about where Child C2 resided on the night of 1 May 2017. In his initial statement to the Tribunal, the Applicant stated that C2 was with him that night however, at the hearing it was agreed by the parties that C2 left his father’s home on the night of 30 April and resided elsewhere on the night of 1 May. C2’s court appearance was on 1 May 2017 and the AAT1 states he returned to stay at his grandparent’s house on 2 May 2017.[8] It appears the date of 1 May 2017 is correct.[9] However, the discrepancy in this instance is not material.
[8] T Documents at [9] Tribunal decision at paragraph [18].
[9] Applicant’s Submissions at [G], letter from C2’s grandmother dated 5 June 2017.
The Respondent has confirmed that during the period from 1 January 2017 to 30 June 2017 no child support payments were made to the father and no child support payments were collected from the mother for distribution to the father.[10]
[10] Respondent’s email dated 8 April 2020 at Tribunal Evidence R1.
The Application
On 30 March 2017 the Applicant contacted the Department to state that he had 100% care of Child C2 commencing 29 March 2017. On 2 May 2017 the Department determined that there had been no change in care arrangements for the purposes of the Child Support (Assessment) Act 1989 (the Act). On 3 May 2017 the Applicant objected to that decision which was disallowed by the Respondent on 7 July 2017.
On 26 July 2017 the Applicant applied to the AAT1 for a review of the objection disallowance and that Tribunal affirmed the Respondent’s decision on 2 November 2017.
On 28 November 2017 the Applicant sought a review of the AAT1 decision in this Tribunal where the matter was heard on 7 April 2020.
Given the conditions and limitations imposed on the Tribunal by the Covid-19 pandemic, in terms of securing the health and welfare of all parties before it, all parties were heard by telephone.
The Tribunal notes that between the date of the AAT1 hearing and this hearing, a challenge was raised by the Respondent as to the Tribunal’s jurisdiction in the matter. The Tribunal determined that it had such jurisdiction[11] and this determination was upheld on appeal to the Federal Court.[12]
[11] Re MQMV and Child Support Registrar (Child Support Second Review) [2018] AATA 2924.
[12] Child Support Registrar v MVMQ [2019] FCA 1171.
The Issue
As the facts stated above, the whereabouts of Child C2 in the relevant period are not in dispute; the matter becomes one of determining whether or not the Applicant had 100% care of Child C2 between 29 March 2017 and 1 May 2017. More specifically, the issue is: during the period between the nights of 8 to 18 April 2017, when C2 was a resident with his grandparents, whether or not his father still had 100% care of him.
The question of what constitutes “care” is open to interpretation; the term is not defined in the relevant legislation. Under these circumstances it is necessary to seek guidance from the provisions of the Child Support Guide (the Guide) and any judicial authority.
The Guide is published to assist decision-makers and although it does not have the force of statute law, decision-makers are obliged to have regard to its contents. At 2.2.1 of the Guide it states:
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:
o major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
o 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.
In Polec[13], Federal Magistrate Hughes stated:
[13] Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959.
53. Given the lack of a relevant statutory definition of “care” of a child, all parties requested that the Court provided some guidance in relation to the matters that should be taken into account in considering whether and to what extent the first respondent continued to provide care for the child the subject of these proceedings.
54. Counsel for the second respondent submitted that a more helpful version of “the Guide” than the current version is that which existed on 23 January 2008 and which explicitly addresses the issue of determining ongoing daily care for a child. The relevant portion is as follows:
oOngoing daily care
oThere are a number of factors that should be considered in determining whether a person is providing “ongoing daily care”. Some of those factors, which are provided for guidance only, are:
oLiving arrangements - where is the child residing and who is making decisions about where the child is residing;
oDaily physical needs - how are the daily needs being met for the child and who is meeting the costs of those needs;
oSocial and other activities - who is responsible for making decisions about the child’s daily activities and who is meeting the costs of those activities;
oRepresentations to others - who takes responsibility for liaising with others about the child’s daily care and how does this occur.
……..
56. In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:
oTo what extent does the person meet 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?
oTo what extent does the person make arrangements for others to meet the needs of the child?
oTo what extent does the person pay for the costs of meeting the needs of the child?
oTo what extent does the person otherwise provide financial support for the child?
oTo what extent does the child provide for his or her own needs or have those needs met from another source?
oTo what extent is the child financially independent or financially supported from another source?
57. An analysis of the evidence in relation to these considerations should assist the Tribunal in determining whether or not there has been a child support terminating event or a change in the percentage of care for the child provided by the first respondent.
In P v Child Support Registrar,[14] Wigney J stated:
[107] In my opinion, however, para [56] of Polec should be approached on the basis that it is no more than what Hughes FM intended it to be; namely a workable guide to assist decision-makers in determining the extent of care. It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand. “Care” is not defined in the Act. The extent of care that is provided is a question of fact. It will depend on the facts and circumstances of the particular case. The meaning of care in any given case should not be constrained by a set list of questions or considerations. Failure to have regard to one of the matters referred to in Polec may or may not invalidate a decision depending on the particular facts and circumstances of the case. On the other hand, in some cases a decision-maker might fall into error by ignoring facts or circumstances that are not in the list in Polec.
[14] [2013] FCA 1312.
In Malcolm v Malcolm the then Social Security Appeals Tribunal[15] stated:
“The issue of ‘care’ is a broader concept than face-to-face responsibility, as it encompasses notions of legal parental responsibility (which continues even when the child is with other people, such as teachers, supervision, decision-making and even costs.”[16]
[15] The Social Security Appeals Tribunal was incorporated into the Administrative Appeals Tribunal by the Tribunals Amalgamation Act 2015.
[16] Malcolm v Malcolm [2012] SSATACSA 1 at [26].
As best as can be ascertained from the very limited evidence before the Tribunal with regard to actual expenditures, it appears that in the two periods from 29 March to 7 April 2017 and from 19 April to 1 May 2017, the Applicant was effectively taking care of C2. It appears that he provided the child’s meals and supervised his other needs.
However, in her evidence to the AAT1, QDXX stated that “she was still paying for [C2’s] medical costs, school fees and lunches…. (the Applicant’s) only additional cost was providing dinner.”[17]
[17] T Documents at [8] AAT 1 decision paragraph [15]. Other Party letter of 26 April 2017 at Tribunal Evidence OP2.
However, in the period between 8 April and 18 April 2017 the same cannot be said.
C2 was residing with his grandparents and apparently his mother was also residing there (the Applicant says, irrelevantly, that this was unknown to him). Under these circumstances it appears that either the grandparents or the mother were providing the necessary support for C2; the Applicant was not involved in either financial expense for the child in this period nor did he have supervision, control, management of or decision-making in relation to the child’s activities.
It would ordinarily have been the case that because the school holidays were from 8 April to 25 April 2017, C2 would have been staying with his father for half of that time as per the parenting arrangements made by the Court.[18] In the event, C2 spent a little more time with his father than would have been expected due to his mother moving house during this period.
[18] T Documents at [8] AAT 1 decision paragraph [14].
The Applicant appears to be under the impression that because C2 was bailed “to reside” at his home, this means that he had full legal responsibility and care for the child until such time as that bail was varied or discharged. This is not a correct understanding of either the child support legislation or the Bail Act 2013 (NSW).
Care, for the purposes of child support legislation, is that as defined in the Child Support (Assessment) Act and cannot be imported from other sources.
Discussion
The period in question is no more than ten days and so the question arises as to whether, under the Act, this constitutes what is called a “one-off block of 100% care.”[19] Section 2.2.2 of the Guide states:
Where a parent or carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (sections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, either carer may request a new care percentage determination.
The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.
Example: Jason and Anita have 1 child, Robyn. Robyn usually lives with Jason 100% of the time. Jason needs to go to hospital for 3 weeks for an operation, and may require a further period of intensive rehabilitation where he will not be able to care for Robyn. Anita will look after Robyn during this time. The Registrar makes a one-off block of 100% care decision. When Robyn returns to Jason's care, Jason contacts DHS and the Registrar makes a new care decision based on the ongoing care of each parent.
[19] sections 49(1)(a) and 50(1)(a) of the Act.
The Guide makes it clear that such re-determinations related to one-off blocks of 100% of care will generally not be made where the period in question is less than 4 weeks in length.
It is perhaps not helpful that the basis upon which the Applicant’s claim for a recalculation of the care percentage was denied by the Respondent was that, “we have not been able to make a clear determination of the pattern of care”[20] for the period in question. Such a statement is perhaps, understandable on the basis that exact information about the expenses incurred by both parties in the relevant period was not before the decision-maker at that time, nor is it before the Tribunal now.[21]
[20] T Documents at [244].
[21] See for example VXQB and Child Support Registrar (Child support second review) [2020] AATA 697 at [57].
The 4 week general rule is an understandable provision given that what would be entailed for any such shorter term redetermination would (as in this instance) be:
(a)Revocation of an existing determination of care percentage;
(b)The recalculation of a new percentage for the short period;
(c)Because there can only be one determination in place at any one time, that new determination would then itself have to be the subject of an application for the restoration of the previous determination, or the making of another new determination (itself an appealable decision).
However, legal complexity or administrative inconvenience is never a sufficient basis, in and of itself, to deny an applicant the right to succeed on the merits of their case.
The problem facing the Applicant is that the merits of his claim are weak.
There is no evidence the Applicant has incurred significant additional expenses as a result of the temporary disruption of the normal pattern of care provided for C2.
Taking all the elements of the Guide and the “check list” in Polec together, the Applicant has not established that he had “care” of C2 for the period when C2 was residing with his grandparents. The mere fact that C2 was bailed “to reside” at the Applicant’s address for a limited period of time, does not translate into the establishment of entitlements under the Act. There must be a meaningful contribution on the part of the claimant; none has been shown.
In any event, in accordance with the provisions of the Guide and in what would accord with common sense and good administrative practice, the period in question is far too short a period to justify the necessary redeterminations which would be required to be made.
The Tribunal agrees with the finding of the AAT1 that:
“Given the very short period of extra care (the Applicant) provided, and the fact that (the Other Party) still provided some care during this extra period, the tribunal did not think it was appropriate to determine that there had been a ‘one-off block of care’. The likely pattern of care as at 29 March 2017 was not known.”[22]
[22] T Documents at [110] AAT 1 Decision paragraph [21].
No evidence has been presented to this Tribunal that would cause it to come to any different conclusion.
DECISION
The decision under review is affirmed.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.................................[sgd].......................................
Associate
Dated: 24 April 2020
Date(s) of hearing: 7 April 2020 Applicant: In person Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers Other Party: In person
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