Ms CM, The Mother and Child Support Registrar (Child support second review)
[2015] AATA 520
•16 July 2015
Ms CM, The Mother and Child Support Registrar (Child support second review) [2015] AATA 520 (16 July 2015)
Division GENERAL DIVISION File Number(s)
2014/4423
Re
Ms CM, The Mother
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Mr M, The Father
OTHER PARTY
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 16 July 2015
Place Sydney The Tribunal sets aside the decision under review, and in substitution finds that Ms CM has 67% care for the children from 26 December 2013 for the care period, and Mr M, 33%.
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Ms G Ettinger, Senior MemberIt 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 children by parents who lived separated under one roof during the care period – method of calculation – Tribunal sets aside the decision of the SSAT, and in substitution finds different percentages of care
LEGISLATION
Child Support (Assessment) Act 1989 ss 49, 50, 51, 52, 54, 54A
Child Support (Registration and Collection) Act 1988 s 80
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Parent A and Child Support Registrar and Anor [2014] AATA 199
Polec & Staker & Anor [2011] FMCAfam 959SECONDARY MATERIALS
The Guide to Social Policy Law- Child Support Guide
REASONS FOR DECISION
Ms G Ettinger, Senior Member
16 July 2015
Ms CM and Mr M are the parents of two children, born in 1999 and 2001. The matter before me is an appeal by Ms CM, from a decision of the Social Security Appeals Tribunal, (SSAT), dated 24 July 2014. The SSAT, to whom Ms CM, the mother, had appealed the decision of the Child Support Registrar (the Registrar), affirmed that decision, and held that for the relevant care period commencing 26 December 2013, the date of the mother’s application for a child support assessment, the percentage of care to be used in the child support assessment should be 50% for the mother, and 50% for the father.
Ms CM did not agree with the decision of the SSAT, and applied to this Tribunal for a review of that decision. She appeared before me representing herself. The Tribunal had sent listing notices to Mr M, and followed up with telephone calls and emails. Mr M requested to appear by telephone, which the Tribunal refused, requiring him to appear in person. Following that exchange with Tribunal staff members, Mr M did not return telephone calls or reply to emails, and did not appear at the hearing. The Registrar, was represented by Ms L James, Senior Government Lawyer.
I have found from the evidence that for the relevant period, the care for the children was 67% for the mother, and 33% for the father. I have calculated that on the basis of the evidence before me regarding the care each parent provides for the children, and the financial contribution of each to the upkeep of the house and the children.
Reasons for my decision are discussed in the paragraphs below.
ISSUES BEFORE THE TRIBUNAL
The issue for the Tribunal is the respective care percentages in respect of child support assessments in regard to the two children of the marriage of Ms CM and Mr M, for the care period commencing 26 December 2013, and the method of calculation.
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 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.
Subsection 54A(4) makes it clear that section 54A does not limit the manner in which actual care can be determined under sections 50, 51, 52 or 54 of the Assessment Act. Thus a decision maker may decide actual care on a different basis to that provided for by section 54A, including hours of care if appropriate.
Chapter 2.2 of the Guide deals with calculation of care percentages. Chapter 2.2.1 of the Guide states that the Registrar may also determine actual care by reference to the number of hours of care over a care period.
In cases where parents are separated, but living under the same roof, part 2.2.1 of the Guide sets out the approach that the Registrar is to take. It states as follows:
Where parents are separated but are 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.
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 AND EVIDENCE
As already stated above, Ms CM and Mr M have two children about whom the care by each parent revolves. Ms CM told me that before 2011 when she was working in paid employment which ceased in that year, the care of the children was shared by her and Mr M. Mr M’s evidence as provided in the section 37 documents was that he worked from home, and provided the majority of the care during the period when Ms CM was working fulltime. Ms CM described Mr M’s work teaching music and repairing instruments. Ms CM told me that following her redundancy in 2011, the redundancy payment was depleted by July 2012, and that Mr M did not support her financially.
I note that the relevant start date for the care period is 26 December 2013 when Ms CM lodged an application for a child support assessment. She indicated that the couple had been having relationship difficulties, and separated on 6 September 2013. She told me that they were living separated under the same roof. Mr M was sleeping, and had his workshop repairing instruments in the downstairs part of the house, and was using the kitchen and bathroom in the main upstairs part of the house. She described him as often drunk and aggressive, locking her out of the laundry downstairs, taking her car, and damaging her computer.
Mr M moved out in September 2014. That date would trigger another determination event. I am however here, dealing with the care period commencing 26 December 2013.
Ms CM confirmed that the parents have no court order in place, and no parenting plan. At the hearing she told me however, that they currently have a matter before the Family Court of Australia with regard to a property settlement.
By way of background, I have noted from the section 37 documents and the Respondent’s Statement of Facts and Contentions that on 2 January 2014, during the application for assessment process, Ms CM notified the Registrar, that the care for the children was 98% by her, and 2% by Mr M, but during further discussion, she conceded the care to be 83% to her and 17% to Mr M from 6 September 2013.
Notes provided by the Registrar of a telephone interview with Mr M on 2 January 2014, recorded that he disputed the level of care alleged by Ms CM. He considered the financial contributions to the care of the children was 90% to him and 10% to her. He also claimed that the physical and emotional care of the children was 50% to each parent. He advised that he cooks, cleans, washes clothes and transports the children 50% of the time.
On 22 January 2014 Ms CM reported that she and Mr M maintain a 50% each financial split, and that she provides 100% of the physical and emotional care of the children. She acknowledged that Mr M pays the mortgage and utilities, but that she buys household food, clothes, sporting support and other items. She advised that she would provide further evidence as to the care provided to the children. By 11 September 2014, Ms CM was writing emails to Mr M with regard to earlier correspondence in August 2014 regarding non-payment of energy bills for the household. She referred in her email to a disconnection notice received because Mr M had not paid the bills (Exhibit A3).
On 31 January 2014 Ms CM provided a statement of parental responsibilities which provided evidence dating from the 2011 calendar year. She stated that Mr M paid the mortgage and utilities, but that she paid for food and groceries, medical and dental bills, clothing, haircuts and school expenses, entertainment and holidays, phones and laptops and miscellaneous items. She also described how she saw the division of labour as to cooking, cleaning, laundry, transport, homework, general child care and supervision. She stated: I believe that I’m being conservative in my claim that I provide a minimum of 85% care for the boys.
On 11 February 2014 the Registrar made a determination based on the evidence provided by both parents that the care of the children was 67% by the mother, and 33% by the father. The Registrar based this on Ms CM providing 85% care as to physical support, and 50% of the financial support for the children. The Registrar held that Mr M was providing 15% of the physical support, and 50% of the financial support for the children. The emotional support was held to be difficult to measure, and was disregarded for purposes of the calculation. The Registrar issued a notice of the decision to each parent in relation to the percentage of care decision, and accepted that the care period commenced on 26 December 2013.
The Registrar date stamped Mr M’s objection to the Original Determination on 20 February 2014. Mr M provided evidence as to the care he provided for the children which, not surprisingly, was at odds with that of Ms CM.
On 15 April 2014, an objections officer allowed the objection, and determined that as the parents were living under the same roof, and on the evidence provided, the care of the children was equally shared at 50% to each parent.
On 29 April 2014 Ms CM applied to the SSAT for review of the objection decision. Both parents provided further material regarding their respective roles in the care of their children. On 24 July 2014 the SSAT affirmed the decision under review, holding that the care percentage to be used in the child support assessment should be 50% for the mother, and 50% for the father. Ms CM then applied to this Tribunal for a review of the decision of the decision of the SSAT.
On or about 10 March 2015 Ms CM provided additional material to this Tribunal which has been taken into evidence and given Exhibit numbers, consisting of:
·a further statement/explanatory statement;
·statutory declarations made by Ms M;
·referee statements by Ms HS, Mr JO’B, Mr CB, a nephew, Ms JB, an older sister of the Applicant, Mr JB, her brother, and Ms JB, the Applicant’s mother.
·email correspondence between Ms CM and Mr M;
·extracts from an affidavit sworn by Ms CM on 29 October 2014;
·a statement provided to the local police station;
·a letter from a school which the children attend dated 10 February 2015; and
·a letter from Ms CM’s family doctor dated 12 February 2015.
THE TRIBUNAL’S DELIBERATIONS AND FINDINGS
As indicated above, the issue for the Tribunal to decide is the care percentages in respect of child support assessments in regard to the two children of Ms CM and Mr M for the care period commencing 26 December 2013.
Ms CM gave oral evidence at the hearing before me, and provided documents as indicated above. Mr M did not give evidence at the hearing or provide any further documents than those which were before the SSAT. I have included consideration of his evidence which is in the section 37 documents before me, in coming to a decision.
I am mindful that pursuant to section 54A of the Assessment Act, care is generally worked out based on the number of nights that children are likely to be in the care of a person during the care period. I am mindful too, that in this situation, only one parent can have care of a child at a particular time. 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. The legislation does not specify circumstances in which it would be more appropriate to calculate hours rather than nights. That would depend on the particular circumstances of the case, including the case of persons who work on shift work. In my view that situation does not arise in this case.
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.
I noted that in cases where parents are separated, but living under the same roof as in the case of Ms CM and Mr M at the relevant time, part 2.2.1 of the Guide sets out the approach that the Registrar, and hence, the Tribunal, is to take. It states as follows:
Where parents are separated but are 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.
I am mindful that pursuant to Re 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, where the child is to some degree independent and provides for their own needs to a significant extent. That is so in the present case – during the period I must consider, C was over 16, in part-time employment, providing for some of her needs and exerting her independence from her mother, who had cared for her exclusively over preceding years.
The oft quoted case of Polec & Staker & Anor [2011] FMCAfam 959 provides certain indicia for consideration when deciding to what extent a person has care of a child for purposes of the Assessment Act and the Child Support Act. I have taken those into account.
I have noted also that the referees provided Statutory Declarations, and spoke very highly of Ms CM, as one would expect. Three of the six were family members whose views are generally given less weight than persons deposing at arm’s length. Further, several had no first hand knowledge of what was going on, and simply reported what Ms CM told them about Mr M.
·Ms HS noted that Ms CM was present with her son at rugby training, games and social situations in relation to the game.
·Mr JO’B, hairdresser to Ms CM and the boys deposed that he had been her hairdresser for eight years, and that she brought the boys for haircuts and paid for them.
·Mr CB, Ms CM’s nephew, who moved to Sydney from England and New Zealand in 2013, deposed that he had been with Ms CM and the boys on various occasions and observed her generosity with paying for him when he took the boys on outings. He was aware of the difficulties Ms CM had in accessing her laundry because it was located on the lower floor of the house where Mr M resided.
·Ms JB, Ms CM’s sister, reported what her sister had told her, which was that following the redundancy in 2011, Ms CM had taken on the main care giving role for the children, and that the tasks of parenting fell to her due to difficulties in communicating with Mr M.
·Mr JB, Ms CM’s brother noted that Ms CM was the primary care giver for the children. He reported hearing from Ms CM that Mr M mainly stayed in the lower level of the house after the couple separated, and that he was often absent or incapacitated from alcohol.
In coming to a decision, I accept Ms CM’s evidence that in the care period, whilst living separated under one roof with Mr M, she provided far more care for the children in terms of household duties, driving them to school, washing, outings, paying for food, and being company for them at meal times, and watching television. I also accept Ms CM’s evidence that Mr M was out of the house many nights during the care period. I accept the evidence which led to the decision regarding care made by the Registrar on 11 February 2014.
I acknowledge that Mr M did not join into activities with the children in the upstairs area of the house due to an Apprehended Domestic Violence Order (ADVO) which was in place from 4 January 2014 to 16 May 2014. I accept the evidence which indicates that he telephoned the children from his quarters downstairs during some evenings when he was at home. I also accept that that Mr M paid the mortgage and energy bills during the care period until approximately August 2014.
The evidence of the parents is in conflict with regard to the care provided to the children. I have preferred the evidence of Ms CM as noted above.
Accordingly I find that for the care period commencing on 26 December 2013, the care arrangements the children of Ms CM and Mr M, were 67% for Ms CM, and 33% for Mr M.
DECISION
The Tribunal sets aside the decision under review, and in substitution finds that the mother has 67% care for the children from 26 December 2013 for the care period, and the father 33%.
I certify that the preceding 39 (thirty - nine) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member .............................[sgd]...........................................
Associate
Dated 16 July 2015
Date(s) of hearing 16 April 2015 Applicant In person Solicitors for the Respondent Department of Human Services Other Party No appearance
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