Mr L, the father and Child Support Registrar Ms C, the mother JOINED PARTY Ms G Ettinger, Senior Member 26 June 2015 Sydney
[2015] AATA 450
•26 June 2015
[2015] AATA 450
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1295
Re
Mr L, the father
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Ms C, the mother
JOINED PARTY
Tribunal Ms G Ettinger, Senior Member
Date 26 June 2015 Place Sydney The Tribunal affirms the decision of the SSAT.
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Ms G Ettinger, Senior Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).CATCHWORDS
CHILD SUPPORT – shared care of a child by parents who live separated – method of calculation of care – whether to depart from general count of nights the child spends with each to a count of the hours – Tribunal affirms the decision of the SSAT to count nights.
LEGISLATION
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
CASES
Vendrell v Secretary, Department of Social Services and Anor [2014] AATA 22
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Watanabe & Watanabe [2010] FMCAfam 94
Parent A and Child Support Registrar and Anor [2014] AATA 199SECONDARY MATERIALS
The Guide to Social Policy Law - Child Support Guide
REASONS FOR DECISION
Ms G Ettinger, Senior Member
26 June 2015
SUMMARY
Mr L and Ms C are the parents of a son born in 2009. The matter before me is an application for review by Mr L, of a decision of the Social Security Appeals Tribunal, (SSAT), dated 7 February 2014. The SSAT, to whom Ms C, the mother had appealed, set aside the decision of the Child Support Registrar (the Registrar), and held that for the relevant period, commencing 7 August 2013, the care percentage to be used in the child support assessment should be calculated by reference to nights of care of each parent, being 62% for the mother, and 38% for the father.
Both parents appeared at this Tribunal unrepresented. The Registrar was represented by Ms K Martini, a solicitor. Mr L pointed out what he saw as errors in the SSAT decision. I reminded him that this Tribunal hears the matter de novo with any available additional evidence, and makes an independent decision rather than finding fault with the decision of the SSAT.
Mr L was satisfied that the Registrar had used the correct approach in calculating the care the parents gave the child in the relevant period because it had used the hours of care (rather than nights), in its calculations. He indicated that it was more favourable in terms of family assistance payments, and family tax benefit. In support of his argument that the calculation of care by reference to hours was more appropriate, Mr L referred to the Agreement between the parents regarding access and care of the child as documented by the Federal Magistrates Court (as it then was), on 2 October 2012. He submitted that the Agreement referred very specifically to hours of care for each parent.
Mr L also sought to rely on the case of Vendrell v Secretary, Department of Social Services and Anor [2014] AATA 22.
Ms C however, favoured the method of counting nights the child spent with each parent, and made submissions to that effect.
I have found from the evidence that for the relevant period, the care for the child was 62% by the mother, and 38% by the father. I have accepted the calculations on the basis of the nights each parent cares for the child, which for reasons discussed below, is not the inappropriate way, and indeed, I find, the more appropriate way to calculate the care of the child. I accordingly affirmed the decision of the SSAT.
ISSUES BEFORE THE TRIBUNAL
The issue for the Tribunal is to decide the respective care percentages in respect of child support assessments in regard to the child of Mr L and Ms C, and the method of calculation, that is, whether to take into account nights or hours of care.
RELEVANT LEGISLATION
The relevant legislation in this matter is the Child Support (Assessment) Act 1989 (Assessment Act), and the Child Support (Registrations and Collection) Act 1988 (Registration Act). ‘The Guide to Social Policy Law - Child Support Guide’ (the Guide) is also relevant.
Pursuant to sections 49 and 50 of the Assessment Act, the Tribunal can make a determination in relation to the care percentage that a responsible person has, in respect of a child.
Section 49 of the Assessment Act also empowers the Tribunal to determine care with reference to a care arrangement if no pattern of care can be established.
Section 54A(a) of the Assessment Act deals with the calculation of actual care. It provides for the Registrar, and the Tribunal standing in his shoes, to work out actual care during the care period by basing it on the number of nights that the decision maker is satisfied that the child was, or is likely to be, in the care of the person during the care period.
I note also that Chapter 2.2 of the Guide deals with the calculation of care percentages, and as discussed below, from 1 July 2010, the care percentage determination can be made on hours of care over the care period if a determination on nights would be inappropriate.
2.2.1 Basics of Care Care other than in nights
From 1 July 2010, the Registrar can base the care percentage determination on hours of care over the care period if a determination based on nights would be inappropriate. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, this will not always be the case. Although a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, this would not necessarily mean that the nights of care are not the best measure of care that the person provides.
If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, this will also not necessarily mean a calculation based on nights is inappropriate.
Pursuant to section 80A of the Registration Act a carer or liable parent may lodge an objection to a care percentage decision. The Registrar must then decide whether to allow or disallow the objection. It may be revoked pursuant to sections 54F, 54G and 54H of the Assessment Act. If a decision is revoked, a new determination can be made pursuant to section 49 or 50 of the Assessment Act.
BACKGROUND
As already stated above, Mr L and Ms C have a child about whom this matter revolves.
There is in place a detailed written agreement made by the parents, dated 2 October 2012, which has been endorsed as a Consent Order of the Federal Magistrates Court of Australia (as it then was). Mr L argued on the basis of that agreement, that calculating hours is the best way to determine the shared care the parents provide for their child. He stated that calculating care based on hours between the parents would result in a 6% cost difference.
As noted by the SSAT, the operation of a court order changed the care percentages that were in force from 15 January 2013. The SSAT therefore considered, and I agree, that pursuant to the provisions of section 54K of the Assessment Act, it was thus proper to revoke the previous care percentage from 7 August 2013. The SSAT noted that the current arrangement came into effect on 5 July 2013 but was not notified until 7 August 2013.
The Applicant sought to rely on the case of Vendrell v Secretary, Department of Social Services in support of his argument that the care of the child should be calculated on hours, not nights. His particular argument centred around the undisputed fact that he has care of the child from 7:30 am Tuesdays until 5:00 pm on Wednesdays, but has only one night for him counted in his care over that period. I noted that this arrangement was based on the fact Mr L was not working in paid employment, and that if his situation changes, the calculations may also change. It is also based on the mother working Mondays, Thursdays and Fridays.
THE TRIBUNAL’S DELIBERATIONS AND FINDINGS
As indicated above, the issue for the Tribunal to decide is the care percentages, and the method of calculation in respect of child support assessments in regard to Master L, child of Mr L and Ms C for the period commencing 7 August 2013.
I am mindful that pursuant to section 54A of the Assessment Act, care is generally worked out based on the number of nights that the child is likely to be in the care of the person during the care period. I am mindful too that since 1 July 2010, a care determination can also be based on hours of care over the care period if a determination based on nights would be inappropriate. That would depend on the particular circumstances of the case. The legislation does not specify circumstances in which it would be more appropriate to calculate hours rather than nights.
However, the Child Support Guide (the Guide) is available, and provides policy which a decision maker, including this Tribunal, must use if it is not inconsistent with the legislation. The Tribunal must apply lawful government policy unless there are cogent reasons to the contrary. (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). There are no reasons not to apply the Guide in this case. The Guide gives as an example that for parents doing shift work, it can be inappropriate to calculate care by counting nights spent with a parent, and that hours may be more appropriate. However, the issue of shift work does not arise in this case. Further, financial considerations such as the calculation of care by reference to hours rendering payment more favourable in terms of family assistance payments, and family tax benefit as suggested by Mr L, are not relevant to my decision making.
In coming to a decision, I am mindful that pursuant to Parent A and Child Support Registrar and Anor [2014] AATA 199, care is multi-faceted. The Tribunal there indicated as follows at [22]:
For the purposes of the Assessment Act, ‘care’ is multi-faceted. It does not merely refer to the provision of accommodation or financial support for a child, but it carries a broader meaning that may include making arrangements for and decisions about the welfare of a child. In this context, ‘care’ may include looking after, dealing with, providing for, protecting, guiding and supporting a child. The manner and extent to which a person cares for and meets the needs of a child, by providing financial and other support for example, must be considered. This may be more difficult in the case of an older child, …
The Federal Magistrates Court in Watanabe & Watanabe [2010] FMCAfam 94 stated that there are circumstances in which it is appropriate to calculate percentages of care based on hours, and not nights:
[21] The SSAT were alert to the fact that the Act did not bind them to determine the percentage of care based on the number of nights. The SSAT determined (see para.34 of the Reasons):
While it is open to the Tribunal to calculate the percentage of care by some other method, such as hours, the care likely to be provided by the parents in this case is fairly (but not precisely) reflected in the number of nights of care.
[22] The Assessment Act does not prescribe the matters or factors that ought to be taken into account in how to assess the percentage of care. The discretion, though, ought to be exercised within the framework provided by the Act, in particular, the objects of the Act (s.4 of the Assessment Act). I do not though consider that this exercise should become an exercise in mathematical accounting. The nature of the consideration is not capable of precision because the costs of children is not confined to their daily needs nor are those costs uniform across the year (and the Assessment Act recognises that fact).
[23] Whilst the applicant now contends that an assessment based on his arguments about time in care results in the conclusion that the children were with him for more than 14% of the time, that is not something that he argued before the SSAT. I accept that that is not necessarily the end of the consideration in this matter but it is clear that the SSAT was alert to the fact that in the exercise of its discretion, it was not bound to simply rely upon the number of nights the children were in the care of the applicant.
[24] I am also not satisfied, in the exercise of the discretion in the way that it did, that the SSAT were wrong. Whilst they did not set out the particular factors taken into account for determining the matter on the basis of nights, I am satisfied that the reasons do adequately explain the basis for proceeding in that way and the Assessment Act clearly indicates that as an appropriate course in most instances.
The Respondent submitted that the situation in Vendrell where Senior Member Toohey held that calculation of care by the application of hours of care was more appropriate, is quite different from the present one. Ms Martini submitted that in this case, the SSAT’s conclusion that the care percentage be determined by reference to nights was more appropriate, and that the calculations of the SSAT, correct.
I prefer the submissions of the Respondent, and find that the case of Vendrell can be distinguished. The situation in that case was quite different from that in this one. I am satisfied that the default position of calculating care by counting nights is the most appropriate method in this case, and do not find that the Agreement made by the parents in the Federal Magistrates Court alters that.
Accordingly I find that for the care period commencing 7 August 2013, the care arrangements for the child were, as found by the SSAT, 62% by the mother, and 38% by the father, calculated by counting nights, which I find not to be inappropriate in this case.
DECISION
The Tribunal affirms the decision of the SSAT.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member .............................[sgd]...........................................
Associate
26 June 2015
Date of hearing 13 April 2015 Applicant In person Solicitors for the Respondent Department of Human Services Joined Party In person
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