Naismith and Naismith (Child support)

[2021] AATA 1693

Naismith and Naismith (Child support) [2021] AATA 1693 (19 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC020344

APPLICANT:  Mr Naismith

OTHER PARTIES:  Child Support Registrar

Ms Naismith

TRIBUNAL:Member J Thomson

DECISION DATE:  19 April 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – parents living under the same roof – extent of care provided by each parent – shared care determination not appropriate – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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.

REASONS FOR DECISION

BACKGROUND

1. Mr Naismith and Ms Naismith are the parents of [Child 1], born 2002, and recorded as being in the 100% care of Ms Naismith, and the 0% care of Mr Naismith.

2. Mr Naismith seeks review of an objection decision made by the Child Support Agency (the CSA) on 19 November 2020. This decision disallowed his objection to an earlier decision made by the CSA on 9 June 2020 to accept an application made by Ms Naismith on 22 May 2020 for an administrative assessment of child support for [Child 1], recording the care percentages for [Child 1] at the time of her application as 100% to Ms Naismith and 0% to Mr Naismith, with effect from 30 April 2019.

3. The Tribunal heard the matter on 9 March 2021. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the CSA (Exhibit 1).

4. The Tribunal allowed the parties to submit further material, post hearing, in support of their respective submissions at the hearing. Ms Naismith’s further submissions received by the Tribunal on 15 March 2021, have been admitted into evidence and marked Exhibit B. A copy of these submissions was provided to Mr Naismith for his consideration and comment. On 17 March 2021, Mr Naismith provided his response and supporting material, admitted into evidence and marked Exhibit A. The Tribunal did not consider it necessary to send copies of this material to Ms Naismith for further comment.

5. The issues which arise in this case appear in the Reasons set out below.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing, and the documentation contained in Exhibits 1, A and B.

2. The statutory provisions relevant to this review are contained in Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the CSA makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate, and when such a divergence occurs, a parent can notify the CSA and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?

3. This case involves a situation where both parents are separated but living under the same roof with [Child 1], the child in the assessment, who was approaching his 19th birthday, and the parents’ 23-year-old daughter, no longer a child in the assessment.

4. According to the CSA documentation contained in Exhibit 1, the parents were married on [date] August 2001, and separated on [date] April 2019, but have continued to live under the same roof since that date.

5. By email, sent by Mr Naismith to Ms Naismith dated 30 April 2019, a copy of which was before the Tribunal at page 24 of the CSA papers, Exhibit 1, Mr Naismith acknowledged the parents agreed to the terms of their separation, including, relevantly, Mr Naismith’s notification that, as he was in the process of starting his own [business] and was supporting himself on his credit card facilities, he would not have the financial capacity to meet the full cost of the family’s electricity, gas and Telstra bills, which he suggested be split between the parents.

6. In his evidence to the Tribunal, he identified [Company 1], a company of which he was the sole director and shareholder, as the entity through which he intended conducting his [business].

7. There was evidence before the Tribunal that Mr Naismith left Australia to travel to [Country 1] from [November] 2019 to February 2020. Upon his return to Australia, he resumed residence with the Family and commenced developing his [business], [Company 1].

8. On 22 May 2020, Ms Naismith applied to the CSA for an administrative assessment of child support for [Child 1], informing the CSA in her application that she was providing care for [Child 1] 7 nights per week, equating to a care percentage of 100%.

9. The CSA documentation records a number of unsuccessful attempts to contact Mr Naismith to discuss Ms Naismith’s assessment application. The CSA also sent him a letter dated 29 May 2020 inviting him to contact the CSA to discuss the application and submit evidence regarding the level of care he was providing for [Child 1], to which he did not respond.

10. On 9 June 2020, the CSA made its decision to accept Ms Naismith’s child support assessment application with effect from 22 May 2020. The CSA’s documentation records the extension of the child support period beyond [Child 1]’s 18th birthday in May 2020, until 2 December 2020, to allow him to complete his final grade 12 year at [College 1], [Victoria].

11. The evidence at hearing suggests Ms Naismith is employed as a qualified [Occupation 1]. The CSA documentation at page 123 of Exhibit 1 reflects Mr Naismith’s 2018/19 income for child support purposes from the date of acceptance of Ms Naismith’s assessment application on 22 June 2020 as $9,075 per annum, and Ms Naismith’s 2018/19 income at $100,790. 

12. The CSA documentation contains a file note of a telephone conversation between Mr Naismith and a CSA officer on 11 June 2020, in the course of which Mr Naismith registered his objection to the decision of 2 June 2020 to accept Ms Naismith’s assessment application, recording her 100% care percentage with respect to [Child 1]. This file note also records Mr Naismith informing the CSA officer that he was not currently employed, and that he had applied for jobseeker payments. He also informed the CSA officer that he had pre-paid the mortgage payments on the family home and was funding his own living expenses from his credit card facility.

13. During the course of the hearing, both parents gave conflicting evidence of their respective contributions to the mortgage payments on the family home and various household utilities, including the [electricity] and gas accounts, [Child 1]’s [College 1] school fees, and the household food and other daily living necessities, including the [internet] and landline bills, and [Child 1]’s [mobile] phone accounts. Both parties provided receipts evidencing their financial contributions to these expenses.

14. The Tribunal will address the parents’ evidence as to their funding of these expenses as follows.

15. Both parents acknowledged that they had contributed various amounts toward their joint [mortgage] repayments on the family home and to [Child 1]’s [College 1] school fees and other education related expenses. Mr Naismith gave evidence that he contributed his share of the mortgage payments via his [Everyday] bank account which he funded through [another bank] account he had established, and Ms Naismith gave evidence that she contributed her share via a salary sacrifice arrangement with her employer. In that regard, she gave evidence that, until recently, she had committed an additional $200 above her required share of the [mortgage] payments of approximately $611 per fortnight. Her evidence at the hearing suggests she is continuing to pay $611 per fortnight from her salary via direct debit to [mortgage] in reduction of the mortgage debt on the former family home.

16. Ms Naismith also gave evidence that she is currently meeting the insurance premiums on the family home.

17. Both parents acknowledged and agreed that as at 24 December 2019, the [mortgage] account had been paid in advance by approximately $40,000 and was in credit up until February 2020. It was also acknowledged and agreed that the last payment made by Mr Naismith was an amount of $3,000 on 24 December 2019.

18. During his absence overseas between [November] 2019 to February 2020, the [gas] and electricity accounts which were conducted in Mr Naismith’s name alone and for which he said he had been responsible for paying, had fallen into arrears, and the gas and electricity services were disconnected. Ms Naismith gave evidence that for a period, until she was able to establish new accounts with [the gas and electricity company] and have the electricity and gas services restored, she and the children were without those services.

19. The evidence at the hearing suggests Ms Naismith has been responsible for the payment of [the] accounts since establishing the accounts in her name, notwithstanding Mr Naismith’s protestations at the hearing that she refuses to provide him with those accounts for payment by him. His evidence suggests he does not have the financial capacity to meet these expenses.

20. In due course, [the gas and electricity company]  made formal demand on Mr Naismith for payment of the outstanding gas and electricity accounts.

21. Ms Naismith gave evidence that because Mr Naismith did not make any provision for the financial support of the family while he was in [Country 1], she applied to the CSA for an administrative assessment of child support on 22 May 2020.

22. It was accepted by Ms Naismith that following his return to Australia in February 2020, Mr Naismith had attended to the payment of the outstanding [gas] and electricity accounts, including the formal demand by [the company’s] debt collection [agency], amounting to approximately $1,415. She also acknowledged his payment of the outstanding second and third instalments of the local authority [City] Council rates for the July 2019 to June 2020 in the amount of $1,413.19, leaving her responsible for the payment of the first and fourth instalments totalling $1,056.25. Ms Naismith provided evidence at page 105 of Exhibit 1 of her having paid those rates instalments.

23. Mr Naismith gave evidence of his installation of solar panels on the roof of the family home to assist in the reduction of the electricity costs. He gave evidence he attended to the installation of the solar panels himself in April 2020 at a cost of approximately $5,580 and provided copies of receipts for his outlays for the components of the solar panel system he installed at the family home.

24. The evidence of the parties regarding their contributions to [Child 1]’s [College 1] school fees and other education expenses was to the following effect.

25. Mr Naismith’s evidence was that because he had lost his job, presumably at some point in or about November 2019, he did not have sufficient funds from which to contribute to [Child 1]’s school fees and expenses in that year. However, upon presentation by Ms Naismith of [Child 1]’s [College 1] Fee Statement for August 2020, dated 11 August 2020 (see Exhibit 1 page 51), Mr Naismith said he paid the outstanding balance reflected in that Fee Statement of $3,171.50 on 21 August 2020, the receipt of which is recorded at page 52 of Exhibit 1.

26. In written submissions to the Tribunal provided by Ms Naismith post hearing, she states that she paid [Child 1]’s 2020 [College 1] Fee Statement at page 83 of Exhibit 1 amounting to $7,456.50 and the cost of his school-books amounting to $742.47, a total of $8,198. In addition, Ms Naismith provided evidence of her payment of the $150.00 balance of the fees appearing on the Fee Statement at page 52 of Exhibit 1, and the cost of his school uniforms and laptop computer for [Child 1]’s ‘home-schooling’ during the Victorian State COVID-19 lockdown in early 2020.

27. The evidence regarding the provision of the family’s food requirements was also conflicting. Mr Naismith contended that he bought meat and fruit for the family, and although he said he prepared his own meals, using the food he purchased, he contended the food he bought was made available to Ms Naismith and the children for their consumption, but usually left to rot.

28. Ms Naismith contended that she purchased the food for herself and the children and that she and her daughter prepared the family meals. She asserted that Mr Naismith purchased his own food and prepared his own meals. She provided a print-out of her grocery shopping expenditure at pages 92 to 95 of Exhibit 1, evidencing the cost to her of providing food for herself and the children.

29. In cases such as this, where the parents are separated, but living under the same roof with the child, the subject of the child support assessment, it is difficult to determine with precision the actual percentage of care being provided by each parent. This invites a close examination of the nature and extent of the actual care being provided for the child by each parent.

30. In response to questioning by the Tribunal as to his general level of commitment and support for [Child 1], Mr Naismith acknowledged that he has not contributed to the cost of the child’s school uniforms or books since May 2020. He also acknowledged that he does not drive [Child 1] to functions nor does he take him to medical and dental appointments, and that generally, his relationship with [Child 1] has broken down.

31. In the case of Polec & Staker & Anor (SSAT APPEAL) [2011] FMCAfam 959, Hughes FM expressed the view that, in determining whether and to what extent a person has care of a child for the purpose of the Act it is necessary to consider the following:

    (a)  to 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 extracurricular activities?

    (b)  To what extent does the person make arrangements for others to meet the needs of the child?

    (c)   To what extent does the person pay for the costs of meeting the needs of the child?

    (d)  To what extent does the person otherwise provide financial support for the child?

    (e)  To what extent does the child provide for his or her own needs or have those needs met from another source?

    (f)    To what extent is the child financially independent or financially supported from another source.

32. Applying the above considerations, the Tribunal finds the evidence on balance is that, whilst Mr Naismith has contributed to some extent to the costs of [Child 1]’s school fees and other education expenses, and has also provided improvements to the family home in the form of solar power facilities, and paid for [Child 1]’s mobile phone charges, The Tribunal finds these are payments and benefits of an incidental/sporadic nature which most parents provide. The Tribunal is not satisfied Mr Naismith has demonstrated that he has provided any level of care for [Child 1] consistent with the care considerations identified by Hughes FM in Polec’s case referred to above since at least 19 November 2019.

33. The Tribunal finds that, consistent with the considerations set out in Polec’s case above, Ms Naismith has provided the accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities for [Child 1] since at least 19 November 2019, when Mr Naismith left Australia to travel to [Country 1].

34. The Tribunal therefore finds that the level of care provided by Ms Naismith for [Child 1] equates to 100% care, and Mr Naismith’s level of care for [Child 1] equates to 0% from 30 April 2020 with effect from the date of Ms Naismith’s child support assessment application on 22 May 2020.

35. As the Tribunal has reached the same conclusion as the objections officer in the decision under review, the Tribunal affirms that decision.

DECISION

The decision under review is affirmed.