NMDC and Child Support Registrar (Child support second review)
[2017] AATA 139
•31 January 2017
NMDC and Child Support Registrar (Child support second review) [2017] AATA 139 (31 January 2017)
Division
GENERAL DIVISION
File Number
2015/2877
Re
NMDC
APPLICANT
And
Child Support Registrar
RESPONDENT
And
BVHB
OTHER PARTY
DECISION
Tribunal Regina Perton, Member
Date 31 January 2017 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
Names used in all published decision are pseudonyms. Any reference appearing in 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.
CHILD SUPPORT – percentage of care- whether calculation should be based on nights of care or hours of care.
Legislation
Child Support (Assessment) Act 1989 ss 50, 54A, 54BCases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Secondary Materials
Child Support Guide, version 4.21
REASONS FOR DECISION
Regina Perton, Member
31 January 2017
NMDC (the father) and his former partner, BVHB (the mother), are parents of a child born in May 2012. There have been, and remain, a number of disputes between them in relation to the time their child will spend with each parent and the amount of child support to be paid. The percentage of care impacts on whether one parent is required to pay child support to the other and, if so, how much.
On 20 March 2013 the mother registered a child support liability with the Child Support Registrar requiring the father to pay child support. At that time, the child was recorded as being cared for 90 per cent of his time by his mother and 10 per cent by the father.
On 2 June 2014 family law orders were made by consent covering property and parenting matters. There were differing care arrangements specified whilst the child was less than three years old and then changes specified after his third birthday. There was also agreement that the parents attend a specified mediator to decide on care arrangements that would be put in place for the child after his fourth birthday.
On 13 June 2014 the Child Support Agency noted that the father had stated that there was a change of care for the child, namely that he had 28 per cent care and the mother 72 per cent. The father stated in his submission to the Tribunal that this was the result of a misunderstanding by the agency’s officer of his response to a question posed by the officer. The mother disagreed that there had been a change and referred to arrangements set out in the court orders agreed to less than two weeks earlier whereby the child spent one night per fortnight (on a Saturday) with his father and during the day every Monday and alternate Sunday. The father confirmed that arrangement.
Following the discussion with the parents, the Child Support Agency made a decision on 13 June 2014 to change the percentage of care to 93 per cent for the mother and 7 per cent to the father effective from 2 June 2014.
On 31 October 2014 the records of the Child Support Agency indicate that the father notified it of a change of care for the child. The father stated that he has care equivalent to 14 per cent when court ordered care is calculated on an hourly basis from 9am Saturday until 5pm Sunday each alternate weekend, and from 9am to 5pm every Monday.
On 7 November 2014 the mother advised the Child Support Agency that she disagreed with the father’s suggestion that the percentage of care should be based on the hours that he spent time with their son rather than nights of care. Then, and now, she did not dispute that the care was taking place in accordance with the court orders.
On 20 November 2014 a delegate decided to vary the child support assessment for the period 3 October 2014 to 31 December 2015 in relation to amounts due. The Tribunal does not have jurisdiction to deal with disputes over the amounts to be paid by either parent to the other.
On 1 December 2014 the Child Support Agency informed the father that his application to change the care percentage registered on 31 October 2014 was not valid because there had been no change in the child’s care arrangement. The father was advised that he should have objected to the care decision made on 13 June 2014 rather than made an application to change the care percentage.
On 12 December 2014 the father lodged a fresh application to change the percentage of care advising he had 14 per cent care of his son. On 10 January 2015 the Child Support Agency refused the application because there had not been any change in the arrangements for care of the child.
On 19 January 2015 the father lodged an objection to the care decision made on 13 June 2014 submitting that he provides regular care of the child and the percentage of care should be based on the hours he spends with him. The mother provided a submission as to why the care should be based on nights rather than hours, including the cost of taking care of the child.
On 20 March 2015 an objections officer (i.e. review officer) of the Child Support Agency decided to change the care percentage to 14 per cent for the father and 86 per cent for the mother with the effective date of the change being 31 October 2014.
The mother lodged an application for review with the then Social Security Appeals Tribunal (now the Social Security and Child Support Division of the Administrative Appeals Tribunal). On 14 May 2015 the SSAT, following a hearing at which both parents provided submissions, set aside the objections officer’s decision and substituted a decision that as from 2 June 2014, the father had 7 per cent of care of the child and the mother 93 per cent.
On 12 June 2015 the father lodged an application with this Tribunal.
The issues before the Tribunal are whether the care pattern for the child should be calculated according to the nights in care or the hours in care and the resultant percentages of care for each parent in the relevant care period, from 2 June 2014 until the child’s third birthday when the care arrangements changed.
RELEVANT LEGISLATION
Part 5 of the Child Support (Assessment) Act 1989 (the Act) sets out how child support is to be assessed based on the percentages of care by each parent as well as other aspects. This division of the Tribunal only has legislative authority to determine the percentage of care. It is not charged with calculating the actual amount to be paid (if any) by one parent to the other.
Section 50 of the Act sets out how each parent’s percentage of care is to be determined based on the pattern of care the parent has had, or is likely to have, during a care period:
(1)This section applies if:
(a)…; or
(b)the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and
(ii) is satisfied that the responsible person 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.
(2)The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4)…
Section 54A of the Act provides a guide as to how the actual care, and extent of care, of the child is to be calculated:
(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)…
Section 54B of the Act provides that a determination of a parent’s percentage of care continues to apply on and from the application day until it is revoked by a later determination. The date on which the revocation takes effect depends on the date that the Registrar becomes aware of the change (ss 54F – 54J).
The Agency has prepared policy guidelines to assist with determinations under the Act. Decision-makers should generally apply policy such as the guidelines, unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). The Tribunal is satisfied that the guidelines should be followed in this matter.
The guidelines at 2.2.1 provide additional guidance beyond the statute relating to calculations of percentage of care. The text below is taken from the current version of the guidelines, version 4.21, but previous guidelines in existence at earlier stages of the dispute endorsed a similar approach:
Percentage of care
The percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child.
…
Care will generally be 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 (CSA Act section 54A).
…
Consideration is given 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. The Registrar will give weight to statements from both parents and any non-parent carers.
A parent or non-parent carer's percentage of care for a child will be used to determine the parent's or non-parent carer's cost percentage for the child. The percentage of care will be rounded to a whole percentage (CSA Act section 54D)…
Care other than in nights
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.
In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.
Example: M and F have one child A. M works night shifts and so can only provide care for A during the daytime. M cares for A for 45 hours per week while F cares for A every night. A percentage of care based on nights would not properly reflect the parents' care arrangements for A and the Registrar would therefore determine the percentages of care based on the hours that each parent provides care for A.
Example: M and F have one child, A. M has 98% care of A and F has 2% care based on the number of nights care over a 12-month care period. During the 12‑month care period, A stays 7 Saturday nights (from 4pm Saturday to 12 noon on Sunday) with F and the rest of the nights with M. F works night shifts and takes care of A every weekday from 8am until M returns from work at 6pm. This occurs for 40 weeks over 12 months. F requests that his care percentage be calculated using hourly care.
Even where 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, it may still be more appropriate to use nights of care as 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, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.
…
WHAT WAS THE PERCENTAGE OF CARE IN THE RELEVANT PERIOD?
The relevant care period as per s 50 that the Tribunal is considering in this matter is from 2 June 2014 until 24 May 2015 when arrangements changed following the child’s third birthday. In this matter, unlike many in this jurisdiction, there is no dispute as to when each parent spent time with the child. The evidence from both parents is that the consent court orders were followed. The pattern of care that was followed was that in the court order.
The father, in his submission to the Tribunal received on 24 November 2015 and in oral evidence, included considerable detail of his negative experiences in dealing with the Child Support Agency in relation to this dispute and related matters over which the Tribunal does not have jurisdiction. He expressed his unhappiness at conflicting advice from the Child Support Agency as to how to have the method of assessment changed from nights to hours. He also provided arguments as to why hours rather than days was the appropriate way to calculate percentages of his care for the child while the child was with him during the day.
The father was unhappy with the SSAT considering the expenses he incurred in caring for the child compared to those of the mother.
In his submission under the heading of Costs and extent of care, the father stated:
5.19 …[the father] contends that he had total control of …[the child], including having overall responsibility for him and making major decisions relating to who he spends time with and his health, education, discipline, recreational and/or social activities, and arrangements for others to meet his needs when …[the child] was in his care.
5.20 …[the father] contends that he meets the total needs of …[the child] by providing him with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities when he was in his care.
5.21 …[the father] contends that …[the mother] does not share clothing or other items that may benefit…[the child]. He comes to … [the father] with an empty bag save for the ‘communication book’ that rarely includes any meaningful entries about his time in …[the mother’s] care.
5.22 …[the father] contends that he otherwise provides financial support for …[the child] through indirect means such as child support as indicated by the assessment, but also through direct means such as clothes, food, toys, and regular contributions to …[the child’s] savings.
5.23 …[the father] contends that during the care period he was working a 38 week [sic] (full-time) over four days to enable him to spend each Monday with …[the child] and was traveling hundreds of kilometres to remain in employment that enabled him to work these flexible hours.
5.24 …[the mother] regularly asserts in the record that …[the father] has no costs associated with his care of …[the child]. …[the father] contends that this is not the case, and that in fact it has been …[the mother] that has consistently attempted to mislead decision-makers about her capacity to contribute towards the costs of caring for …[the child]….
…
5.26 …[the father] contends that he is very happy to pay his fair share of costs to support his son…
The father sets out a cost table for the care period including child support payments of $9,038.31 for the period 10 June 2014 to 21 May 2015; child care from January to May 2015 of $945.25; travel from a Melbourne bayside suburb to the child care facility in inner Melbourne and between the bayside suburb to the mother’s home in inner Melbourne of $1729.00 based on the ATO rate of $0.76 per km for a 2.3 litre car; $998.00 in contributions to a savings account in the child’s name; an estimate of $1275.00 in food and medicine at the rate of $25.00 per week for 51 weeks; an estimate of clothing and nappies/laundry of $1275.00 at the rate of $25.00 per week for 51 weeks; an estimate of $1020.00 for swimming lessons at $24 each week of the applicable term combined with entertainment totalling $1020.00 and $16,280.56 being the total cost for the father to work in a regional city in a role that enables him to have contact with his son on Mondays. He also calculated that the cost of his travel of 282 km each week for 51 weeks at $10,930.00.
The mother provided a submission on 30 November 2015 as to why the method of calculation should be nights in care. She too, was unhappy with aspects of how this dispute was handled by the Child Support Agency and set out why in the submission. In relation to the method of calculation of care, she states:
…
2.9 The original CSA decision of 2 June 2014 and the SSAT’s decision to calculate the percentage of care based on nights of care remains both consistent with the relevant CSA legislation and policy that nights is the best measure of care and it remains appropriate and fair having regard to all the circumstances. Nothing in the Applicant’s Statement warrants a departure from this measure of calculating care or establishes costs to warrant a regular care determination.
3. Relevant Law and Policy
3.1 In accordance with the relevant legislation, the Child Support (Assessment) Act 1989 (the Act) and its supporting Policy, the Child Support Guide (the Guide), ‘nights of care’ is the best measure for calculating care for ….[the child] during 2 June 2014 until 24 May 2015.
3.2 “Nights” under the Act and Guide means “actual nights” and the Applicant’s attempt to ascribe an equivalency to nights for his day time care is not valid or appropriate in the circumstances.
3.3 The Act and Guide both provide that, in determining care, consideration should be applied to the following (but not limited to):
3.3.1 the extent to which a parent meets the needs of the child (including but not limited to accommodation, clothing, food, childcare, healthcare, emotional support, supervision, transport and extra curricula activities);
3.3.2 which parent has responsibility for making arrangements for, and decisions about, the child’s welfare, and who is meeting the child’s costs;
3.3.3 to ensure the percentage of care reflects the percentage of costs each parent meets directly through the care of the child;
3.4 I submit that costs have become a major issue in the current proceedings, however the Applicant’s claim for expenses are only incurred as incidentals during the period that …[the child] spends with the Applicant.
3.5 For the relevant period, from 2 June 2014 until 20 November 2015, as the primary carer I incur direct expenses for … [the child]:
3.5.1 accommodation,
3.5.2 clothing,
3.5.3 food,
3.5.4 childcare,
3.5.5 healthcare,
3.5.6. emotional support,
3.5.7 supervision,
3.5.8 transport; and
3.5.9 extra curricula activities.
3.6 This includes the direct infrastructure expenses of providing an additional room at home for …[the child] to provide his own bedroom, bedroom furniture, books, toys and other costs for his benefit and enjoyment.
3.7 I solely paid all the childcare fees for …[the child] including on Mondays in which …[the child] was spending time with the Applicant from 13 June 2014 until 20 November 2014.
…
The mother then goes on to describe a dispute that occurred in relation to the childcare centre which had been the handover venue on Monday mornings. The Tribunal does not believe it necessary to provide the details with each parent having a different perception of how and why it arose.
The submission continues:
3.13 The Guide specifically provides that nights are deemed the best measure of care and any departure should only be considered in circumstances where nights is deemed inappropriate, such as when a parent works night shifts but has significant day time care of a child or children.
3.14 The Applicant’s actual care of …[the child] in terms of nights during the period 2 June 2014 until 24 May 2015 was 26 nights or one night per fortnight. This is significantly less than the nights used in the CSA formula that are equivalent to regular care, being between 52 and 127 nights per annum or up to 4 nights per fortnight.
3.15 I submit the reasons nights are the best measure of care for …[the child] during the care period and remain the most appropriate are as follows:
3.15.1 The young age of … [the child] , being aged 2 years during the care period;
3.15.2 A younger child’s needs are more significant at night time than during the day, such as increased settling and comfort, nappy changes, feeding and bottles, increased healthcare due to colds or fever which are significantly worse at night;
3.15.3 Each Monday, being the day in question that the Applicant seeks to rely on for an hours of care determination, I would generally be up with …[the child] between 5am and 5.30am. I provided breakfast and nappies and clothes. I would attend to brushing of his teeth and travel to changeover point at 9am. From 5pm I would collect …[the child] from childcare, travel home, make …[the child’s] dinner, attend to his bath and reading stories and play time and tend to him through the night. His bedtime was between 7.30 and 8pm.
3.15.4 From 2 June 2014 I paid for the majority of all the childcare costs including on Mondays…
13.15.5 The costs of entertainment during the day for a young child are of little magnitude due to long day-time sleeping patterns (for Thomas between 2-3 hours) and the limited food intake and minimal activities compared to older children.
3.15.6 I directly incur all the relevant infrastructure costs for …[the child’s] care. I provide accommodation with a separate bedroom for …[the child]. I own the car that I use to facilitate …[the child’s] travel including for changeovers. As the Applicant admits he does not directly incur costs for accommodating …[the child] and uses his parent’s home at the times he spends nights with …[the child]. The Applicant admits that …[the child] does not have his own room…He also claims he incurs direct costs for transport, however he drives his parents vehicle to transport …[the child] to and from his parents.
…
The mother goes on to challenge statements made about her by the father which are not recorded in these Reasons for Decision as well as addressing his criticisms of how the dispute has been handled by the Child Support Agency and the SSAT. It is clear from the submissions and evidence of both parties that the relationship between the parents is hostile and shows little sign of abating.
This has been a difficult case for the Tribunal to grapple with. Both parents presented strong submissions as to whether nights in care or hours in care was the appropriate method of calculation of percentage of care. However, in the end, the Tribunal is required to make a decision one way or the other. The advocate for the respondent did not advance a view as to what the preferable decision is, remaining neutral.
Section 54A of the legislation, as well as the guidelines, envisage that the nights in care will be the primary focus in determining the care percentage. The examples given in the guidelines as to where a departure is warranted are different to the circumstances in this matter. However, that is not to say that the examples in the guidelines are the only circumstances in which departure from the method of calculating the nights may be appropriate. It is admirable that the father had organised his employment in such a way that he was able to spend Mondays during the day with his two year old son. The mother’s submissions about the care she undertakes before and after the father spends Monday with their son are strong, as are her contentions about the costs incurred.
The Tribunal is of the view that the circumstances in this matter do not warrant a departure from the preferred method of calculation of percentage of care. The Tribunal finds that nights of care is the appropriate manner of calculation in this matter.
The Tribunal concurs with the percentage of care determined by the SSAT and the original decision maker, namely 93 per cent by the mother and 7 per cent by the father. The Tribunal notes that different arrangements have been in place since the child’s third birthday which may well have changed the percentages of care.
DECISION
The Tribunal affirms the decision under review.
36. I certify that the preceding 35 (thirty‑five) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
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Associate
Dated 31 January 2017
Date of hearing 20 January 2016 Applicant In person Advocate for the Respondent Department of Human Services, Mr T Noonan Other party By telephone
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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