NWYD and Child Support Registrar (Child support second review)

[2024] AATA 1264

NWYD and Child Support Registrar (Child support second review) [2024] AATA 1264 (24 May 2024)

Division:GENERAL DIVISION

File Number(s):      2023/0729

Re:NWYD

APPLICANT

AndChild Support Registrar

RESPONDENT

AndTNRS

OTHER PARTY

DECISION

Tribunal:Senior Member A Poljak

Date:24 May 2024

Place:Sydney

The decision under review is affirmed. 

.....................[SGD]...................................................

Senior Member A Poljak

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.

Catchwords

CHILD SUPPORT – Percentage of care – Care period – What were the parents’ percentages of care for the children during an appropriate period – Available evidence considered – Decision under review affirmed

Legislation

Child Support (Assessment) Act 1989 (Cth)

Secondary Materials

Child Support Guide

REASONS FOR DECISION

Senior Member A Poljak

24 May 2024

1. The applicant (father) and other party (mother) are the separated parents of five children (the children).

2. A child support case was first registered on 2 May 2022 in relation to the children. With effect from 5 April 2022, the administrative assessment of child support for the children reflected that from 10 January 2021 the applicant had 100% care of the children and the other party had 0% (original decision).

3. On 11 May 2022, the other party objected to the decision of 2 May 2022 on the basis of her view that care should be reflected as 50% to each parent. Both the applicant and other party provided further evidence to the Registrar.

4. On 12 July 2022, a delegate of the Registrar disallowed the other party’s objection (objection decision).

5. On 6 December 2022, the Social Services & Child Support Division of the Administrative Appeals Tribunal (SSCSD) set aside the objection decision and substituted it with a decision that from 5 April 2022, the applicant provided 65% care and the other party 35% care in respect of their five children. This is the decision under review in these proceedings.

   Issues

6. The issues to be determined in these proceedings are confined to the question of the care provided for the children by the applicant and the other party. Specifically, what were the parents’ percentages of care for the children during an appropriate period (which would constitute the ‘care period’)?

7. The other party provided evidence before the SSCSD, which is before this Tribunal for consideration. The other party did not appear at hearing to give further evidence despite receiving adequate notice of the hearing date and time. As such, the hearing proceeded in the other party’s absence.

   Consideration

8. The revocation of care percentage determinations is dealt with in Subdivision C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act).

9. The determination of the percentages of care for the children as between the applicant and the other party are governed by sections 49 or 50 of the Assessment Act. The essential difference between the two sections is that section 49 will apply if the Tribunal is satisfied that either party has had, or is likely to have had, no pattern of care during the care period. Where the Tribunal is satisfied that the parties have had, or are likely to have had, a pattern of care for the child, section 50 will apply.

10. If the existing care percentage determination is revoked, it must be determined whether the applicant has had, or is likely to have had, a pattern of care for the children during a care period. The care period is not of any fixed duration but will generally be “a 12-month period from the day on which actual care of a child changed”.

11. By virtue of subsection 54B(1A) of the Assessment Act, any determination of the parties’ percentages of care under sections 49 or 50 would apply from the date of the applicant’s application for administrative assessment under section 25 of the Assessment Act, being 5 April 2022, until such time as the determination was revoked. A a subsequent care percentage determination was made by a delegate of the Registrar with effect from 19 August 2022. That determination is not within the scope of the present review. Accordingly, I consider that the appropriate care period under consideration is between 5 April 2022 to 18 August 2022 (care period).

12. It appears that the other party did not have overnight care of the children during the care period. The issue is whether the applicant provided any other care of the children from that point in time. Care is not defined in the legislation. The level of care provided by a responsible person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances. A person may provide actual care for a child without providing overnight care for that child. They may do so, for example, by providing the child with food, clothing, education, health care, or otherwise providing financially for the child’s care. The Child Support Guide (Guide) at [2.2.1] provides useful guidance for determining whether care exists.

13. The other party gave evidence in the proceedings before the SSCSD. Relevant aspects were summarised from paragraph [12]-[20] as follows:

    [12] [The other party] told the Tribunal that at the time [the applicant] applied for a child support assessment there were no court orders or other written agreements relating to care of the children although court proceedings were in progress. [The other party] said care was determined between the parents, usually by text message, as communication between them was difficult. [The other party] said she had at least 50 per cent care of the children.

    [13] [The other party] explained that after separation she continued living in the family home until signing a lease on her own place on 19 December 2021. [The other party] said she did not relocate to her home until contracting COVID-19 towards the end of January 2022 and needing to isolate. [The other party] said even after she moved, the children did not stay overnight with her as she wanted them to have time to adjust to the new living arrangements. [The other party] said that, instead, she simply continued going to the family home every day to care for the children and this remained the case until interim court orders were handed down with new care arrangements commencing on 19 August 2022.

    [14] [The other party] told the Tribunal her routine did not really change when she moved to her own accommodation. [The other party] said she was working on night shift as a nurse three times a week and also had a second casual job two days a week during school hours. [The other party] explained that her night shifts ended at 7:30 am in the morning and she would usually pick up bread on her way to the family home then drive [child 1] to school. [The other party] said [the applicant] would arrange breakfast and drop the other children at school because he was not working. [The other party] said she would then go to her home and sleep before returning to the family home late in the afternoon. [The other party] said her night shift started at 9:30 pm and she would often stay with the children before going home to get ready for work. She pointed out her home was located only a few minutes from the family home.

    [15] [The other party] said when she was not on night shift she would often spend more time at the family home. [The other party] said, depending on what each of them were doing, she might take the kids to the park, watch TV or cook a meal. [The other party] said the older children were often with friends or at sport and it might be just her and the younger children upstairs at home. She said sometimes [the applicant] might not even know she was there.

    [16] [The other party] said she was between the family home and her home every day. [The other party] said she was still buying food and clothes for the children and involved in their everyday activities even after leaving the family home. [The other party] added that both parents remained contacts for school-related matters but she acknowledged it was [the applicant] who nearly always took the children to sport. [The other party] said she had given the Child Support Agency statements from third-parties in support of the care she was providing as well as text messages which showed she was still co-parenting with [the applicant].

14. Numerous statements were in evidence before the SSCSD and are now before this Tribunal. Relevant statements are from Ms Vanessa [redacted], Ms Gemma [redacted], Ms Glenys [redacted], Ms Tracey [redacted], Mrs Ursula [redacted], and Ms Kari [redacted]. All support the other party’s account that she continues to provide care and financial support for the children.

15. As noted by the SSCSD, there are further notes in evidence provided by the other party to the Child Support Agency on 12 May 2022. The notes include a series of email exchanges between the parents in April and May 2022 relating to sporting activities, school matters, pick-ups, shopping and organising food for the children. The relevant exchanges plainly show the parties communicating about care for the children.

16. The applicant reiterated his evidence before the SSCSD and maintained that the children lived with him full-time in the family home and he had been providing 100 per cent care since at least 10 January 2021 as they live with him in the family home, and he is responsible for their day-to-day care as well as providing for them financially. He accepted that the other party provided some care, but this was limited.

17. The applicant explained at hearing that during the school term, the other party hardly ever took the children to school. He also stated that he took the boys to training and sport on the weekends and took the children away during the school holidays.

18. Before the SSCSD, the applicant explained that he was responsible for getting the children ready for school, preparing the majority of meals, packing school lunches, doing school pick-ups and drop-offs, taking the children to all their extra-curricular activities and supervising homework.

19. As for financial support, the applicant reiterated at hearing that although he wasn’t working, he relied on his workers compensation payout until October 2021. He said he had been in receipt of government benefits and also had to borrow money from his parents. The evidence before the SSCSD is that the applicant reported paying for the mortgage on the family home, all utility costs, food and clothes. The applicant conceded that the other party paid for school fees and some food but little else.

20. The applicant has provided statements from Mr Brett and Ms Tanya [redacted], Mr Anthony and Ms Lisa [redacted], Mr Mark [redacted], Mr Thomas [redacted], Ms Katerina [redacted], Mr Ian [redacted], and Ms It [redacted], Mr Kyle and Ms Eleisa [redacted], and Mr Micah and Ms Amanda [redacted]. The statements support the applicant’s evidence that he is the primary carer and often drops the children at school and takes them to sporting activities.

21. Having considered all of the available evidence, I don’t consider it possible to quantify precisely the level of care provided by each parent during the care period. It is however plain that while the applicant was the primary carer during the care period, the other party also provided care of the children, other than overnight care. Accordingly, I consider the SSCSD’s assessment that other party provided 35 per cent care and the applicant provided 65 per cent care of the children during the care period is an appropriate apportionment of care percentages.

22. The decision under review is affirmed. 

23.     I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.........................[SGD]...............................................

Associate

Dated: 24 May 2024

Date of hearing:

8 March 2024

Applicant:

Self-represented

Other Party:

Solicitor for the Respondent:

No appearance

Mr M Burnham, Sparke Helmore Lawyers