P and Child Support Registrar M OTHER PARTY
[2014] AATA 229
•17 April 2014
[2014] AATA 229
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3820
Re
P
APPLICANT
And
Child Support Registrar
RESPONDENT
And
M
OTHER PARTY
DECISION
Tribunal Ms J L Redfern, Senior Member
Date 17 April 2014 Place Sydney The decision under review is set aside and substituted with a decision that the existing determination for the percentage of care be revoked as of 8 January 2013 and from that date the applicant’s percentage of care for A is 55% and the second respondent’s percentage of care is 45%.
..........................[SGD]..............................................
Ms J L Redfern, Senior Member
Publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
CATCHWORDS
CHILD SUPPORT – percentage of care – court orders for equal shared parental responsibility - factors relevant to the determination of actual care - child weekly boarder at school - payment of school fees - how care should be apportioned between parents for periods spent at boarding school - determination of new percentages of care in a period – decision set aside
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) ss 4, 5, 35A, 40C, 50, 54A, 54H, 54F, 55C
Child Support (Registration and Collection) Act 1988 (Cth) ss 89, 103VA
CASES
P v Child Support Registrar and M [2012] FCA 1398
P v Child Support Registrar [2013] FCA 1312
The Father and the Child Support Registrar [2012] AATA 39
Confidential v Child Support Registrar and Anor [2013] AATA 426Polec v Staker (2011) 253 FLR 339
SECONDARY MATERIALS
The Child Support Guide
REASONS FOR DECISION
Ms J L Redfern, Senior Member
17 April 2014
BACKGROUND
The applicant and the second respondent are the parents of three children. They are divorced. Two of the children, C and A, attend a private boarding school in Sydney. The applicant seeks review of a decision by the Social Security Appeals Tribunal (SSAT) made on 23 July 2013 to affirm a decision of the Child Support Registrar, the first respondent, not to revoke an existing determination setting the applicant’s percentage of care for his child, A, at 50%. Their oldest child, C, has previously been the subject of a disputed percentage of care determination by the first respondent.
Pursuant to orders made by consent by the Federal Magistrates Court on 6 June 2011 (the consent orders), the applicant and second respondent have equal shared parental responsibility for their children.
It is common ground that A is a weekly boarder at St Joseph’s College and lives with his parents on alternate weekends and during school holidays. Under the orders of the Federal Magistrates Court, the applicant and/or his mother are responsible for payment of boarding, education and tuition fees.
On 8 January 2013, the applicant applied to the first respondent for a variation in the assessment of his percentage of care for A for the purposes of the child support scheme. In making his application, the applicant relied on the financial support provided, or to be provided, to A for boarding, education and tuition fees. The applicant contended that during the period A was living as a boarder care should be attributable solely to him. The first respondent declined to revoke the determination and relied on the approach previously taken by this Tribunal in respect of C, which was to attribute equal care to each parent. The SSAT also adopted this approach and affirmed the decision of the first respondent.
The applicant appealed to the Federal Court in respect of two previous decisions made by this Tribunal about the percentage of care for C. These proceedings are relevant in so far as the Federal Court made findings and observations about the operation of the Child Support (Assessment) Act 1989 (Cth) (the ‘Assessment Act’) in circumstances similar to those applying to A. The Federal Court, constituted by Buchanan J, remitted the first decision to this Tribunal for further determination, which was made on 25 June 2013. The applicant appealed this decision and on 5 December 2013, the Federal Court, constituted by Wigney J, dismissed the appeal.
On or about 8 January 2014 the applicant made a further application for revocation and reassessment of his percentage of care for A. The new application was not the subject of this review and, according to the first respondent, was in the process of being considered at the time of the hearing. This application was said to relate to disputes about custody that had arisen during the Christmas 2013/2014 holidays.
RELEVANT STATUTORY AND POLICY FRAMEWORK
The issues before the Tribunal arise from the operation of provisions of the Assessment Act.
Part 5 of the Assessment Act provides for the assessment of child support and includes formulas used for assessing the annual rate of child support payable by a parent for a child for a day in a child support period (s 35A). The cost to parents of raising children is worked out by reference to a Table in Schedule 1 to the Assessment Act. These costs are to be met by both parents according to each parent’s capacity to meet the costs, which is assessed by reference to the relevant formula set out in Division 2. One of the steps in the formula involves the first respondent working out each parent’s percentage of care for the child for the day in accordance with Subdivision B of Division 4 of Part 5 of the Assessment Act. If a parent’s percentage of care is more than 65% the annual rate of child support payable by the parent will be nil (s 40C).
The key relevant provisions for the purposes of considering this review are sections 50, 54A, and 54F of the Assessment Act. Section 50 provides for the determination of the percentage of care for a child; s 54A sets out how the actual care of a child is to be calculated and s 54F provides for the revocation of a determination. Part VII of the Child Support (Registration and Collection) Act 1988 (Cth) (the ‘Registration and Collection Act’) establishes an internal objection procedure for decisions of the first respondent, including a care percentage decision. An objection decision is subject to merits review by the SSAT under s 89(1) of the Registration and Collection Act. A party who is aggrieved by a decision of the SSAT relating to the party’s percentage of care may apply to this Tribunal for a review (s 103VA of the Registration and Collection Act). There is no dispute the applicant is entitled to commence these proceedings. He has objected to the decision of the first respondent not to revoke the existing care determination for him and has unsuccessfully appealed the objection decision to the SSAT.
Section 50 of the Assessment Act provides as follows:
Determination of percentage of care--responsible person has had etc. a pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child 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; 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) Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.
12. Section 5 of the Assessment Act provides that a “responsible person” for a child means a parent or non-parent carer of the child.
The expression “actual care” is not defined in the Assessment Act but s 54A of the Act provides as follows:
Working out actual care, and extent of care, of a child
(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) This section does not limit section 50, 51, 52 or 54.
As will be noted from s 50(1), the expression “care period” is defined as being a period during which the first respondent is satisfied the responsible person for the child has had, or is likely to have, a pattern of care for the child.
The first respondent made a determination on 18 May 2011 about the applicant’s percentage of care of A and determined that the applicant and the second respondent should each be attributed with 50% care for A. The applicant requested this determination be revoked and a new determination be made attributing a percentage of care of 77% to him to take into account his financial contribution to the fees of A during the periods A spent as a weekly boarder.
The first respondent has discretion under s 54H of the Assessment Act to revoke a determination of a responsible person’s percentage of care and make another assessment if satisfied there has been a change in the percentage of care. Section 54F provides that the first respondent must revoke the determination if also satisfied the responsible person’s cost percentage would change. Section 54F provides as follows:
Determination must be revoked if there is a change to the responsible person's cost percentage
(1) If:
(a) a determination of a responsible person's percentage of care (the existing percentage of care ) for a child has been made under section 49 or 50; and
(b) if section 51 or 52 applied in relation to the responsible person--the interim period for the determination has ended; and
(c) the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and
(d) the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and
(e) section 54G does not apply;
The Registrar must revoke the determination.
Note: The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b.)
(2) The revocation of the determination takes effect at the end of:
(a) if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:
(i) in a case where that change of care day occurs during the interim period for the determination--the day on which the interim period ends; or
(ii) otherwise--the day before that change of care day; or
(b) if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended--the day on which
(c) otherwise--the day before the day on which the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter.
Section 55C of the Assessment Act sets out how the cost percentage for a child is to be assessed and contains a Table which calculates a cost percentage based on the range of the percentage of care determined for a responsible person.
It is common ground that The Child Support Guide (the Guide) is relevant for the purposes of this review. The Guide is an online resource which provides guidance about the administration of the child support scheme. Relevantly, it contains guidance about factors the first respondent will take into account when determining a responsible person’s percentage of care. It is noted that staff are expected to follow the Guide “except where it would result in an anomaly”.
Chapter 2 of the Guide explains how the first respondent will determine care and a responsible person’s percentage of care. Chapter 2.2.1, under the heading “Basics of Care”, provides as follows:
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case.
· To what extent does the person have control of the child, including having overall responsibility for the child and making:
o major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities; and
o arrangements for others to meet the needs of the child.
· 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?
· To what extent does the person pay for the costs of meeting the needs of the child?
· To what extent does the person otherwise provide financial support for the child?
· To what extent does the child provide for his or her own needs or have those needs met from another source?
· To what extent is the child financially independent or financially supported from another source?
Chapter 2.2.1 sets out the first respondent’s approach to calculating the percentage of care, including the approach that may be taken if a calculation based on nights is not considered to be appropriate. The relevant extracts from the Guide, excluding the examples (other than the specific boarding school example) are as follows :
Percentage of Care
The percentage of care is the mechanism in the child support assessment formula takes into account the amount of time a parent or non-parent carer is responsible for providing care for the child.
A parent or non-parent carer's percentage of care for a day in a child support period is the percentage of care that the person is likely to have of the child during the care period.
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 (section 48(2) of the unamended Act, section 54A of the amended Act).
Prior to 1 July 2010, parents and non-parent carers could also agree to a percentage of care to be used in the assessment, if they agreed that the number of nights did not appropriately represent their care.
From 1 July 2010, the Registrar can base the care determination on hours of care over the care period if a determination based on nights would be inappropriate…
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.
Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time.
Example
A person can provide care for a child who is at boarding school, in hospital or in separate accommodation. A person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent, a schoolteacher) does not provide care.
Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well is 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 (section 48(3) of the unamended Act, section 54D of the amended Act). See Chapter 2.4.5 for more information on these percentages in the child support formula.
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…
A person's percentage of care will only be based on hours if the Registrar is satisfied that in the circumstances of the case, the calculation based on hours provides a better measure of care than nights. The Registrar will take into account the information from each parent and/or non-parent carer about the care they provide and why they think nights or hours is the better measure of care…
The Guide was referred to by the parties extensively during the hearing and in their written statement of facts issues and contentions. No party has contended the Guide should not be applied, although it should be noted that the Guide does not provide specific guidance about how “care” should be assessed in a case like this.
PREVIOUS CASES AND RELEVANT AUTHORITIES
As already noted, the applicant previously disputed determinations made by the first respondent of his percentage of care for C. He has consistently contended, both in this case and the cases relating to the care of C, that he is entitled to be regarded as the sole carer during the period his children are boarding at St Joseph’s College.
When the Tribunal first considered this issue in respect of C in The Father and the Child Support Registrar [2012] AATA 39, the Tribunal worked out actual care for C based on nights pursuant to s 54A(1) and decided that the applicant and the second respondent had equal care of C during this period. The applicant appealed this decision. On appeal in P v Child Support Registrar and M [2012] FCA 1398 Buchanan J held that this was impermissible under s 54A(3) of the Assessment Act, which provides that when working out actual care based on the number of nights a child is in care, the child cannot be in the care of more than one person at the same time. While his Honour did not determine the percentage of care and remitted the matter to the Tribunal for further determination, he made the following observations about how this issue could be approached:
33. The Guide to which I referred earlier sets out a number of factors which might generally be taken into account in determining an appropriate percentage of care. Generally speaking, the percentage of care is to be based upon actual care and is generally worked out on the basis of the number of nights that a child is in the care of the person concerned. If it is not possible to determine a percentage of care based upon actual care (or perhaps to the extent to which it is not possible to do so) it may be accepted by a decision-maker that parents share the care of a child equally. That may be a possible approach in the present case to the period spent at St Josephs College, although it is not one, as it appears to me, which has so far been taken in those terms.
34. Alternatively, in an example approach given by The Guide, credit may be given to a person “who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well is [sic] who is meeting the child’s costs, rather than just the accommodation arrangements themselves”. That example is given in connection with a suggestion that “a person can provide care for a child who is at a boarding school, in hospital or in separate accommodation”. An approach like that may support the applicant’s position. It is certainly one upon which he relies.
The Tribunal considered the remittal in Confidential v Child Support Registrar and Anor [2013] AATA 426. Senior Member Bell found that on the proper construction of s 50 and s 54A of the Assessment Act, it was not mandatory or necessary to apply s 54A in all cases when working out actual care. According to Senior Member Bell (at [41]), it would be “nonsensical to make an assessment by reference to nights of care” in relation to the nights of the year when C is at boarding school. The Tribunal then considered what other factors should be considered when determining the percentage of care a responsible person provides to a child. The Tribunal had regard to the decision of the Federal Magistrates Court in Polec v Staker (2011) 253 FLR 339 and accepted that payment of costs by a parent was a factor to be considered in assessing the extent to which a parent provides care. However, the Tribunal was not satisfied on the basis of the evidence that the applicant paid the school fees, although it was accepted he was jointly and severally responsible for their payment with his mother. The Tribunal considered the evidence of the applicant and the second respondent about the arrangements for care and, in particular the nature of the shared parental responsibility for C pursuant to the consent orders covering custody. Having regard to these matters the Tribunal found that it was “neither necessary or appropriate” to attribute specific periods that C spent living at St Joseph’s College to either parent and it was therefore determined that each parent had a percentage of care of 50% as at the effective date of 6 June 2011.
In Polec v Staker Hughes FM (as his honour was then referred) considered an appeal from a decision of the SSAT in respect of the percentage of care for a child who was not living with either parent. Federal Magistrate Hughes considered the legislation and the Guide and attempted to “formulate a workable definition” as follows:
In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, 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 extra curricular 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?
The applicant appealed the decision of Senior Member Bell, which was considered by Wigney J in P v Child Support Registrar [2013] FCA 1312. The appeal was dismissed. One of the grounds argued by the applicant was that it was mandatory to work out actual care in the manner stipulated in s 54A of the Assessment Act. His Honour rejected this contention and in so doing considered the Explanatory Memorandum to the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010. He also noted the limitations of the Guide. The following passages ([62] – [66]) are apposite:
62. This explanation makes it fairly clear that the intention behind s 54A was to provide guidance in determining actual care, but that if the methodology in s 54A, which focuses on nights in care, is not appropriate in the particular circumstances of a case to work out actual care, it is open to the Registrar to employ a different methodology.
63. That is plainly the position here. When Master C was at boarding school he was not staying overnight with either parent. It is difficult to see how s 54A could provide any guidance or assistance in determining actual care in these circumstances.
64. Mr P complains that in construing s 54A the Tribunal impermissibly had regard to a “carefully crafted” extract of the Guide. That appears to be a reference to the fact that the extract set out in paragraph [16] of the Tribunal’s reasons does not include the example given in the Guide when dealing with this topic. The example given in the Guide is as follows: “where parents are separated but are living in the same house, [the Agency] will determine each parents percentage of care based upon the care that is actually occurring for the child.” Mr P submits that this example is distinguishable from the facts and circumstances of this case. Even if that is so, it provides no support for the contention Mr P advances in relation to the construction of s 54A. Nor does it point to any error of law on the part of the Tribunal.
65. The Guide is of limited, if any, real assistance in construing the Act and s 54A specifically. The Guide is not extrinsic material to which regard can properly be had to construe the legislation. It is not akin to an explanatory memorandum or second reading speech to which regard may properly be had to ascertain the legislative intention. Whilst it may be that an administrative decision maker should ordinarily apply policies that are set out in administrative guides (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591) that is different to using an administrative guide to construe legislation.
66. It should be added that some of the content of the Guide is, in any event, unhelpful. Indeed some parts of the Guide might on one view lead a decision maker into error. For example, it is difficult to see how the sentence in the Guide that reads “if [the Agency] is not able to determine a care percentage based upon the actual care [the Agency] will generally accept that the parents share the care of their children equally” comfortably sits with s 50(3) of the Act. Section 50(3) requires the Registrar to attempt to work out “actual care” in every case so as to ensure that the percentage of care corresponds with actual care. It would not appear to permit the Registrar, in difficult cases, to avoid determining actual care and instead simply accept that care is shared equally.
67. Nevertheless, no question of law or error of law is revealed by the Tribunal’s use of the Guide to assist in the construction of ss 50 and 54A of the Act.
The applicant also challenged the finding of shared care on the basis of s 54A(3) of the Assessment Act but this contention was rejected on the basis that if the decision-maker does not apply s 54A to determine actual care, the prohibition in s 54A(3) does not apply. The applicant challenged the findings of the Tribunal about the percentage of care for each parent and, in particular, the findings the applicant did not pay the school fees, the applicant and the second respondent were on equal footing whilst C was at boarding school and that there was compliance with the consent orders made in the Federal Magistrates Court. His Honour held that these findings were open to the Tribunal on the evidence before it. The other grounds of appeal, which were also rejected, related to issues about procedural fairness, the adequacy of reasons and whether the Tribunal took into account irrelevant considerations and failed to give sufficient weight to financial arrangements in accordance with Polec v Staker.
The applicant sought a review to the SSAT of the decision made by the first respondent in respect of his percentage of care for A and contended he should be attributed as the sole carer of A while he was living away from home as a weekly boarder. The SSAT affirmed the objection decision and found that the care percentage had been correctly calculated by the first respondent. It therefore declined to revoke the order. In so finding, the SSAT adopted the reasoning of Senior Member Bell in the case involving the care of C and concluded that “the correct interpretation of the consent orders and facts in the present lead to the same percentage care percentage being applied in respect of [A]”.
CONTENTIONS OF THE PARTIES AND QUESTIONS FOR DETERMINATION
The applicant contends he is, and has been since A commenced boarding school in January 2013, responsible for the payment of all school fees and expenses for the school. He asserts he has in fact paid those fees because he caused them to be paid by his mother and she paid these fees as a loan to him. He borrowed the money for the fees and this is evidenced by the fact this loan has subsequently been repaid to his mother. The Tribunal is not bound by the previous findings in relation to C as this is a different case and the circumstances of A should be considered independently. The Tribunal should nevertheless reject those findings because Senior Member Bell was wrong. Rather than attributing equally shared care for the days that A lives at his boarding school, the Tribunal should attribute the whole of this period to him as sole carer because he pays, or has caused to be paid, accommodation, food and care for A. This is a paramount consideration under the principles set out in Polec v Staker.
According to the applicant, the period that A lives at boarding school represents approximately 55% of the care period. Even if it was determined that care for the remaining days should be shared equally with the second respondent, the applicant’s percentage of care would be 77%. As such, the existing determination, which is based on a 50-50 split, should be revoked and the Tribunal should make a determination, effective from 8 January 2013, that his percentage of care was 77% and the second respondent’s percentage of care 23%. The applicant contends he has care of A for 283 days, being 201 days when A is a border and 82 days when he is not boarding, taking into account that he and the second applicant share care equally when A is not in boarding school.
The first respondent contends there are three possible options for calculating the percentage of care for A. The first option is to utilise s 54A(1) of the Assessment Act by reference to the number of nights A is in the care of each parent, including the attribution of nights spent at the boarding school to either one parent or the other. The second option is to utilise s 54A(1) without attributing nights spent in the boarding school to either parent. The third option, which is the option submitted by the first respondent as the most appropriate, is to determine actual care other than by reference to the number of nights A is in the care of each parent.
It was submitted that the second option is undesirable because if no care was attributed to A while he was in boarding school and the balance was attributed equally between each parent, the percentage of care would be around 20% and neither parent would be an “eligible carer” for the purposes of the child support scheme. Thus, no child support would be payable for A and this outcome would be inconsistent with the principal object of the Assessment Act which is “to ensure that children receive a proper level of financial support from their parents” (s 4(1)). The first respondent submitted that, unless the applicant is able to adduce evidence suggesting the facts with respect to A are different from those relating to C, the Tribunal should follow the reasoning of Senior Member Bell in Confidential v Child Support Registrar and Anor [2013] and determine that each parent’s percentage of care for A has been correctly set at 50%.
The second respondent contended that there should be no change to the percentage of care. There was no evidence that the applicant paid A’s school fees. Any evidence there was a loan for the fees should not be accepted as there was no evidence the applicant could repay a loan. In the absence of any evidence about these matters, the Tribunal should affirm the decision.
Having regard to the relevant provisions of the Assessment Act and the contentions of the parties, the questions for consideration by the Tribunal are:
(a)how should the applicant’s percentage of care for A be assessed for the purposes of the child support scheme and, in particular, what is the impact of A living as a weekly boarder during the school term?
(b)having regard to (a), did the care of A taking place at the relevant time correspond with the applicant’s existing percentage of care as previously determined by the first respondent?
(c)is the payment of fees for the weekly boarding relevant to this question and, if so, how does it impact on the assessment?
(d)would any change in the existing percentage of care also change the applicant’s cost percentage for A?
There is dispute, and this was the subject of a finding by Senior Member Bell in the percentage of care proceedings involving C, about whether the applicant has in fact paid the school fees or whether those fees have been paid by his mother and should therefore not be attributed to him for the purposes of assessing care. No issue was raised by the parties in their contentions about whether, even if the applicant's mother paid the school fees, they should nonetheless be attributed to the applicant for the purposes of determining his percentage of care. As noted by Wigney J in P v Child Support Registrar [2013] (at [112]) this is a matter that may have been relevant to determining the applicant’s percentage of care for C. I have therefore considered this question because it is clearly relevant to the questions of how the applicant’s percentage of care for A should be assessed.
If the answer to (d) is yes, the existing determination must be revoked and there must be a determination of the applicant’s percentage of care which corresponds with the actual care of A that applicant has had, or is likely to have, during the care period. The decision of the SSAT should be set aside. In contrast, if the answer to (b) is yes, the decision of the SSAT should be affirmed.
CONDUCT OF HEARING AND INTERLOCUTORY HEARINGS
This matter was listed for directions hearings on a number of occasions prior to the hearing. One of the directions made was that the applicant file and serve any evidence on which he sought to rely on a nominated date prior to the hearing. The applicant filed and served affidavits from his mother, father, former partner and a friend but did not file and serve any document recording his evidence. He said he had not understood this was required. The applicant had filed and served a lengthy statement of facts issues and contentions outlining his position and the facts asserted by him prior to the hearing but this document did not deal with all evidence the applicant wished to submit. He therefore gave evidence during the hearing and was cross-examined by both the first and second respondents.
Prior to the hearing the applicant requested that the first respondent provide further particulars of how the assessment of his percentage of care should be made in the circumstances of this case. Directions were made for the first respondent to file and serve further particulars outlining the basis on how the first respondent contended the assessment should be made. This document was filed and served by the respondent on 7 February 2014, which was the Friday before the hearing. On that day, the applicant wrote to the Tribunal requesting that the hearing be vacated pending further particulars being provided by the first respondent. He contended the particulars provided were inadequate. The application for an adjournment was considered at the commencement of the hearing. The applicant contended he did not fully appreciate how the assessment of care would be made and wanted to understand how the Tribunal would or was likely to proceed. The first and second respondents opposed the application.
After consideration of the matter and further explanation by the parties about how the review should be approached, I refused the applicant’s request to adjourn the hearing. I was satisfied that there was sufficient information and particulars provided by the first respondent about how it would be contended care for A should be assessed. I further took into account the fact that the issues relating to the care of C, which raised similar issues to those raised in respect of A, had been previously litigated before the Tribunal and the Federal Court on numerous occasions. The contentions filed and served by the first respondent, as expanded by the particulars, clearly outlined the arguments that would be raised. I formed the view that no further particulars could usefully be provided that had not already been served and that there would be no utility in adjourning the hearing.
The applicant sought to rely on sworn evidence from his father and his former partner, F. Both gave evidence about matters that were, according to the first and second respondents, contentions. Neither was available to give evidence on the day. A decision about whether their evidence would be required was deferred until later during the hearing. The first and second respondents objected to the evidence being tendered unless the deponents could be cross-examined. The applicant was offered an opportunity to adjourn the proceedings, part-heard, to a later date to allow these witnesses to give evidence. The applicant declined this proposal and said he wished to proceed, having earlier had his application to adjourn at the commencement of the proceedings rejected. In those circumstances, the applicant said that he did not seek to rely on the sworn evidence of his father and former partner.
The evidence of the applicant's former partner was to the effect that the applicant had dyslexia and she assisted him in preparing written communications for proceedings. This evidence was not controversial. However, her affidavit also included observations on the relationship between the applicant and the second respondent and the second respondent's dealings with her children. These statements were contested by the second respondent. The applicant's father gave evidence about his understanding of the financial dealings between the applicant and the applicant’s mother, AP, but made somewhat inflammatory statements about the second respondent. These affidavits were read by me to assess the objections but, given the applicant did not seek to rely on them, I had no regard to the statements made in the affidavits in conducting this review. In any event, the affidavits were of limited relevance to the issues before me.
Finally, the applicant sought to rely on evidence served by the second respondent in proceedings before the Federal Circuit Court of Australia, apparently relating to the disputed custody issues. The first and second respondent objected to the tender of this document and the applicant did not press its tender.
THE EVIDENCE
The evidence before the Tribunal comprised documents lodged by the first respondent under section 37 of the Administrative Appeals Tribunal Act 1975, a statement from AP, a statement from a friend and business associate of the applicant, SH, a loan agreement between the applicant and SH dated 8 January 2014, bank documents from the applicant’s bank (said to be relevant to the repayment of a loan from AP to the applicant) and correspondence from St Joseph's College about fees. In addition, the applicant and the second respondent gave evidence at the hearing and AP and SH were cross examined on their statements.
There was significant dispute about the care provided by each parent while A was boarding but this dispute largely focused on the nature of the payments made for A’s school fees and whether these should be attributed to the applicant for the purposes of assessment of his percentage of care of A during the period A was boarding. There was also dispute about compliance with the consent orders and there was evidence about recent events following the 2013 Christmas holidays which, according to the second respondent, are the subject of proceedings, or contemplated proceedings, before the Federal Magistrates Court. These alleged changes in circumstances are also the basis for the applicant’s most recent application for variation in his percentage of care.
The applicant and the second respondent have been in dispute about their custody and child support arrangements in respect of their children for a number of years. This is evident from the various proceedings before this Tribunal and the proceedings before the Federal Magistrate Court, which are a matter of public record. Notwithstanding these disputes, which are acrimonious, there was no contest about many of the key facts.
Where there was a factual contest about a matter which is relevant to the questions for determination in the proceedings, I have identified the evidence and made specific findings. I have otherwise adopted the approach of recording the essence of the uncontested matters.
The applicant and the second respondent have three children, now aged 15, 13 and 9 years old. The older children (C and A) attend St Joseph's College, where they are weekly boarders. The youngest child is still in primary school.
The second respondent is employed part-time and lives in Gladesville, which is close to St Joseph's College. The applicant also lives in Gladesville.
On 6 June 2011, the applicant and the second respondent agreed to consent orders in the Federal Magistrates Court. AP was joined as a party to those proceedings. These orders have been in place from the time they were made until the time of the hearing in this matter and, while proceedings have been foreshadowed, there is no evidence that the orders have been revoked or varied. The consent orders cover the custody and care arrangements between the applicant and the second respondent in relation to their children. There has been dispute between the applicant and the second respondent about compliance with these orders over the years but the orders evidence the agreement between them about the custody and care arrangements for their children.
The orders record that the applicant and the second respondent are to have “equal shared parental responsibility” for their three children including but not limited to “the school or schools that each child is to attend”, “the religious instruction and upbringing of each child”, “the medical treatment that each child is to receive” and “the sporting and other activities that the children are to engage in that would occur when the children are to spend time with each of them”. It was further noted that the parent with whom the children are living at the time is to be responsible for the day-to-day decisions concerning the care, welfare and development of the children.
Order 4 records that during the school terms, the children are to live with the applicant each alternate week, from Monday after school to the following Monday until the commencement of school, and to otherwise live with the second respondent. The terms of this order are curious given at the time they were agreed, C was already boarding at St Joseph’s College and it was contemplated A would be boarding from 2013. This is referred to in order 7. There was no explanation for this inconsistency and the applicant submitted this necessarily evidenced non-compliance. In my view this “non-compliance” was immaterial and ultimately not relevant to the key issues in dispute affecting determination of the percentage of care for A. While there is no specific reference to weekends in the consent orders, order 4 includes weekends and it is implicit the children are to spend alternate weekends living with each of the applicant and the second respondent. The orders further provide that the children are to spend one half of the school holidays with each of their parents. It is noted that each parent should have liberal telephone contact with the children when they are in the other’s care.
Relevantly, order 13 provides as follows:
That the Husband and/or the Husband's mother [AP] will be solely responsible for the payment of all and any school fees and expenses at St Joseph's College Hunters Hill and that any such payments will not be claimed by the Husband as a non-agency child-support payments.
Order 14 provides that each of the parents is to use their best endeavours to ensure the children are transported to and from extracurricular activities that they are involved in during the time the children are living with that parent. The orders record that both parents have the obligation to ensure the children are adequately supplied with sporting equipment, uniforms and foot wear, school books and equipment they would require during such times there were living with the other parent. Order 16 provides that each party should notify the other of matters such as the names and addresses of the children's treating doctors and dentists and the dates of parent/teacher functions, sporting carnivals and extracurricular activities. It further noted that each party should notify the other if any of the children become seriously ill, are admitted to hospital or if any medical treatment or allied health care is received by the children whilst living with the other parent.
In January 2013, A commenced at St Joseph's College as a weekly boarder. According to a letter from the school dated 15 January 2014 the boarding fees, which included tuition, were $38,001 per annum. The fees were payable by three instalments.
According to an affidavit sworn by AP and filed in these proceedings, she was present during the hearing in the Federal Magistrates Court and she agreed to loan the applicant money so he could fund the children attending St Joseph's College as weekly boarders. AP said that she never entered into any contractual arrangement with St Joseph's College and there was no loan documentation between her and the applicant in relation to the repayment of the money. The oral agreement between them was based on an understanding the funds would be repaid by the applicant, although AP also noted in her affidavit that the applicant's business was evicted from its premises and as a result the applicant has “suffered financial hardship”. AP stated that the applicant owed her a “substantial of amount of money” and she told the Tribunal she had given the applicant money because he was in “difficult financial circumstances”. In her oral evidence AP sought to resile from the evidence in her affidavit that she agreed to loan the applicant funds for school fees. She said that the loan was not for fees but was given to the applicant “to help him out when he needed it”. AP gave evidence to the effect that if the applicant used the money for fees, she did not know about this and, apart from making some initial payments on his behalf, she was not involved in the payment of fees.
AP also told the Tribunal the loan had been repaid, with interest, on 16 January 2014. A copy of a bank cheque for $120,000 naming AP as the payee and dated 16 January 2014 was tendered without objection. Under cross-examination AP said she had deposited the money in her account and would not be lending the applicant money again as “it has caused too much trouble”.
SH provided an affidavit to the Tribunal, affirmed on 21 January 2014. SH has known the applicant for approximately 14 years when the applicant hired and trained him as an information technology consultant. SH stated in his affidavit that he was “aware of the challenges” the applicant had been facing over the past three years as part of his divorce and had offered to loan the applicant funds so that he could repay a loan to AP to overcome the applicant's “difficulties in convincing the Child Support Registrar that he was in fact paying his sons school fees at St Joseph's College”. SH gave evidence that he and the applicant had entered into a deed of loan dated 8 January 2014 whereby he loaned the applicant $120,000, which was paid to the applicant on or about that date. The Tribunal was provided with a copy of a bank statement recording details of a deposit of $120,000 on 9 January 2014 into the applicant’s account with the ANZ Bank. The deed of loan provides that SH will lend the applicant $120,000, repayable on 8 January 2016, with interest “calculated by using the ATO Benchmark Interest Rate and adding 4%”.
In his evidence to the Tribunal, SH said he was confident the applicant would be able to repay the loan in two years because the applicant has “always been the type of person to succeed at what he does”. SH was asked about what would happen if the applicant did not pay back the money in two years. He responded as follows:
I'm not going to lie to you, I haven't even thought about it because like I said, I know he’ll pay it back. Just so you know, it's not relevant to this – but I've lent other family friends and – family and friends money as well and they've all paid back, so I’m working on the assumption [the applicant] will pay me back, and if I thought he was a bad risk I wouldn't have offered in the first place. It's a different story if he came up to me and said ‘look can you please lend me money?’ He didn't. He just told me what he's going through and I offered him the money, knowing his character.
I accept the evidence of SH. There is no evidence to the contrary and SH gave his evidence in a forthright and open manner.
The applicant gave evidence to the Tribunal. He said that he spoke to A everyday on the telephone and attended at the school most nights. He attends parent-teacher interviews which are generally on the weekend and which he arranges. He attends all of A’s rugby games on the weekend and he is the manager of the team. If there is a problem at school, the teachers call both he and the second respondent but A has not been ill while at the school. In the applicant's opinion, shared care has not been working because he and the second respondent do not communicate. The applicant said he pays A’s fees with his credit card and repays the card from monies loaned to him by AP. He has also used funds from Australian Scholarship Guarantee (ASG).
The second respondent filed a statement of facts issues and contentions in which she stated the following:
I provide care for [A] in all the usual ways when he is living with me, including providing food, clothing, extra curricular and leisure activities. I continue to provide care for [A] during the times he is at boarding school:
· I am listed by the school as a parent who would be contacting case of ill-health or emergency.
· I am involved with the school and with decision-making regarding [A].
· I have regular contact with by telephone while he is at school
· I meet [A] or (sic) lunch regularly during school terms and makes (sic) purchases of food, toiletries and other items while he is at school
· I transport him to and from school on the weekends he spends with me
· I maintain accommodation, at significant costs, near to the school and I keep my home equipped with clothing and equipment for [A] and the other two boys.
The second respondent confirmed her affidavit in her oral evidence. She stated she was not in a financial position to take responsibility for the school or boarding fees at St Joseph's College. The second applicant said that outside boarding school A roughly spends equal time with both parents, leaving aside one-off holidays and a rowing camp he attended. During the time A spent with her, she had day-to-day responsibility for his needs, including financial support. The school contacted both her and the applicant when the children were ill or there was a need for them to be contacted about a particular issue. The consent orders were designed to require her and the applicant to participate in major decisions for the children and in her view, leaving aside payment of the school fees and expenses, there was “zero” difference between her contribution and the contribution of the applicant to the care for A.
I accept the evidence of both the applicant and the second respondent on the key issues in dispute in these proceedings, which are about the pattern of care of A from January 2013 to the time of the new application for variation made in January 2014. There was acrimony between the applicant and the second respondent about a number of issues and this was evident during examination and cross examination. Both raised matters that were not germane to the issues before me and on occasion the applicant was evasive and not responsive or combative in responding to questions. In particular he was sensitive about answering questions on his finances and both he and the second respondent sought to raise issues about the contentious custody dispute that had emerged in the weeks prior to the hearing. Notwithstanding these distractions, their evidence was to the effect that, even though there have been disputes about custody and care and compliance with the orders, the care arrangements for the past year until January 2014 have generally been in accordance with the consent orders.
CONSIDERATION AND FINDINGS
Introduction
To determine the question of whether the existing determination of care for A should be revoked, I must first consider whether the care of A during the relevant care period corresponds with the applicant’s existing percentage of care, as previously determined by the first respondent.
There are three possible options available to me to assess the applicant’s percentage of care for A, being those identified by the first respondent during oral submissions, as particularised earlier in these reasons (at [30]), and in the statement of facts, issues and contentions. Neither party identified, nor am I able to identify, any other suitable options permitted under the legislation and consistent with the policy set out in the Guide for assessing the percentage of care in respect of A.
In his oral submissions, the applicant queried how the Tribunal could assess percentage of care in the absence of more precise guidelines about how this calculation should be undertaken. The applicant further contended that the obligation was on the first respondent to identify the “grounds, relevant considerations, evidence or facts on which it now contends the decision as to percentage of care should be determined” (paragraph 88 of the applicant’s statement of facts, issues and contentions). It was unclear whether the applicant contended an assessment should be made by reference to nights under s 54A(1) but it was clear he contended the period that A was living at the boarding school should be included in the calculation and should be attributed to him. Insofar as there was any consensus between the parties, all appeared to accept that the second option was not a useful or preferred approach to determining percentage of care.
While I accept that I am not bound to follow the findings of Senior Member Bell on the percentage of care for C, I am persuaded by her approach to the question. Senior Member Bell did not make an assessment about actual care for C by reference to nights under s 54A(1) but considered a range of factors. Those factors are the matters identified in the Guide and in Polec v Staker, which apply equally to A. There is no evidence to suggest otherwise. The approach adopted by Senior Member Bell was accepted by Wigney J in P v Child Support Registrar [2013] FCA 1312. Having regard to the circumstances of this case, I am also of the view it is inappropriate to attempt to make an assessment of actual care using the methodology provided by s 54A(1). I have therefore assessed care for A by reference to a range of factors consistent with the Guide and the decision in Polec v Staker but have come to a different conclusion about the relevant percentage of care for A. My reasons follow.
Consideration of how actual care should be assessed
Section 54A(1) provides a methodology for assessing actual care. However, it is clear from the decision of Wigney J that use of the methodology is not mandatory and in a case where the child is at boarding school and not staying overnight with either parent, is of little guidance or assistance (at [57] – [63]). In my view, it is not useful or appropriate to attribute nights to either parent during the period that A is boarding at St Joseph’s College and to do so in the circumstances of this case would be artificial and arbitrary. Neither parent has physical custody of A during these periods yet there is evidence both are involved in his care. The applicant contended that A is entirely in the care of St Joseph’s College when he is boarding, and thereby the applicant, because he pays or is responsible for the school fees. If this is a contention that actual care should be assessed on nights and all nights should be attributed to the applicant while A is in boarding school, I reject it. This contention does not recognise the importance of certain aspects of care for A, other than those relating to his accommodation, food and clothing, and ignores the level of care provided by the second respondent during this time. She sees or speaks to A everyday during the week while he is at school, is involved in parent-teacher meetings and is listed as one of A’s emergency contacts. No major decisions about A’s health care, medical treatment or education could be made during this period without reference to the second respondent.
Having found that s 54A(1) is of no assistance in this case, I must nonetheless make an assessment of actual care for A to determine the issues in dispute.
As noted by previous Tribunals and the Federal Court, “actual care” is not defined in the Assessment Act, other than by reference to s 54A(1). Even though the applicant seeks a precise formulation for assessing care, namely by reference to days, nights or even hours, I have already found this method of calculation is not appropriate given A is living away from home. In the absence of a statutory test, the expression “actual care” should be given its ordinary meaning and will be informed by the Guide and any relevant case law. This was the approach taken by Senior Member Bell in Confidential v Child Support Registrar and Anor [2013] in a similar context. Assessing care when a parent has physical custody of a child, particularly when the parents have agreed to yield care to the other during certain periods, is unarguable. Assessing care when a child is living away from home is more difficult.
In such circumstances, certain responsibilities for care will reside with the third party supervising them. Despite this, the third party does not have responsibility for important life matters affecting the child’s life, such as their education, religion, sporting and extracurricular activities, healthcare, values, emotional support and resilience. For instance, St Joseph’s College may be responsible for how education is delivered to A but decisions on fundamental issues about whether A should be privately or publicly educated, the subjects he should take that best suits his interests and, ultimately, what he will achieve through education are part of the shared parental responsibility of the applicant and the second respondent. This was established by the consent orders to which they both agreed on 6 June 2011. While I accept that shared parental responsibility does not necessarily equate to shared care, the evidence is that the applicant and the second respondent have largely followed the consent orders. This is a relevant consideration when determining actual care. The orders are evidence of the shared obligations of the applicant and second respondent for decision-making and care, with which they both apparently comply most of the time, albeit reluctantly and sometimes imperfectly. As observed by Wigney J at [87], the orders do not discriminate between the applicant and the second respondent in relation to their children’s wellbeing while they are in boarding school.
The evidence is to the effect that once A commenced boarding at St Joseph’s College both parents continued to communicate with him regularly during the week. They are both involved with the school and provide emotional support to A. Their evidence on these matters was not contested. When A is not boarding, he spends alternate weekends and half the holidays with each parent. It was suggested that A has spent additional time with the applicant on occasion but there was no evidence these were other than one-off instances. The applicant submitted in his contentions (paragraphs 68 to 69) that there are three different segments that should be identified for A in the period of care: his time boarding at St Joseph’s College, his time living with the applicant and his time living with the second respondent. He further submitted that the key matter that should determine care for A was the time he spent at boarding school and specifically stated (at 69) that “the remaining two time segments are equally split between the Applicant and the Second Respondent and represents 82 days credited to each parent”. The applicant focussed on the period that A was boarding at St Joseph’s College, being 201 days, both in his contentions and during the hearing.
Making decisions, or having responsibility to make decisions, about important life matters, is relevant to the question of care and this is recognised in the Guide. The Guide refers to the overall responsibility for the child, including making major decisions for the child, meeting the needs of the child or making arrangements for others to meet those needs. Financial support is but one factor in assessing care. The principles established in Polec v Staker are in similar terms to the Guide but focus on meeting needs rather than parental responsibility and decision-making. This may be nothing more than semantics as it could be argued that meeting needs or arranging for others to meet the needs of a child involves decision-making. For instance, in this case the applicant has made arrangements for A’s school fees to be paid but the second respondent has agreed with the applicant to A attending the school as a weekly boarder.
As with the case relating to the care of C, I am satisfied that, but for the question of the payment of fees and the financial support for A while he is a boarder, the applicant and the second respondent are on equal footing on most aspects of care. The only significant departure from that position is the payment of the school fees, which cover the costs of accommodation, food and supervision during the weeks when A is in school.
In Confidential v Child Support Registrar and Anor [2013] Senior Member Bell found that the applicant did not in fact pay the school fees for C and they were paid by AP. Senior Member Bell was not satisfied there was a loan or that there was any likelihood or expectation the money would be repaid. AP gave evidence at the hearing in this matter and, from the account of the evidence given by her at the hearing before Senior Member Bell, it appears her evidence was broadly consistent. Since the hearing before Senior Member Bell, there is evidence the applicant has “repaid” the loan to his mother by entering into another loan with a friend. It is clear from the evidence of SH that this step was taken to “convince” this Tribunal there was a loan.
Having regard to the evidence of AP and the applicant, I am satisfied that AP either paid, or loaned money to the applicant to pay, the school fees for A because the applicant could not afford to do so but wanted his children to attend St Joseph's College as boarders. In giving her evidence, AP was inconsistent and somewhat evasive or unduly combative about this. Despite this, and the fact there was no documented or formalised loan agreement, I accept AP’s evidence that she “loaned” money to the applicant and was hoping at some stage to recover these monies, or part thereof, from him. This was clearly not a commercial arrangement. AP was unlikely to take action against the applicant and, before the moneys were advanced by SH to the applicant in order to repay her, AP must have regarded the prospects of being repaid the money as poor. I nonetheless accept that money was loaned (or given) to the applicant to assist him with his financial difficulties and that AP was more than likely aware the funds would be used to pay the applicant’s debts, including school fees for the children. It is unclear why AP sought to present a different position from that outlined in her affidavit.
In any event, I am of the view that the characterisation of the payment of the fees, namely whether they were paid by the applicant through a loan or a gift from AP or by AP at the request of the applicant (as a gift or loan), is immaterial to the substance of the argument about financial support.
This is not a case where a third party, independent of both parents, has made financial contributions to the care and well-being of A. While there was reference in the earlier proceedings to AP making an “investment” in C, this comment should be understood in context. AP has undoubtedly paid fees or contributed to the payment of fees, either directly or by loan to the applicant, for the benefit of the children (her grandchildren) and to assist the applicant. She is not an independent third party and I am satisfied the fees have been paid, or money loaned, because the applicant requested it. Whether the payment for fees was made by the applicant or whether it was made by AP at his request does not, in my view, make a great deal of difference. This payment represented financial support to A for his accommodation, food and education expenses and was provided at the applicant's request. It is not clear AP would have otherwise paid these fees but for the applicant's request. Relevantly, the Guide and Polec v Staker both recognise that contribution to care may be made by a person making “arrangements for others to meet the needs of the child”. Insofar as AP has paid fees directly or has paid the applicant’s credit card which was used to pay fees, arrangements have been made by the applicant to meet A’s needs.
As such, the payment of these fees is relevant to the question of care and should be given weight as a factor in assessing care, as recognised in Polec v Staker and the Guide. However, this is but one of the factors in assessing care and is not determinative.
As noted by Wigney J (at [107] – [108]), Polec v Staker is not authority for the principle that financial support should be the paramount consideration. It is only a “workable guide” and does not provide a mandatory “exhaustive checklist”. There is no dispute that the second respondent does not contribute to A’s school fees. She said she cannot afford to do so. The applicant is responsible for these fees and he either paid, or caused the fees to be paid, from January 2013. I am therefore not satisfied the percentage of care for the applicant and the second respondent should be assessed as equal during the periods that A is boarding at St Joseph’s College. Nor I am satisfied the significant care role the second respondent maintains while A is boarding should be completely discounted.
Having considered these matters, the largely undisputed evidence of the applicant and the second respondent and the guidance for assessing care set out in the Guide, Polec v Staker and in the decisions of their Honours, Buchanan and Wigney JJ in the Federal Court, I am of the view that the level of care for A as between the applicant and the second respondent when he is boarding is weighed in favour of the applicant but not significantly so. The percentage of care would have been equal but given the applicant has responsibility for the fees (and has caused those fees to be paid), his contribution to the level of care is higher for the purposes of assessing care under the child support scheme during the period A is a boarder.
The difficult question is how this contribution should be measured for the purposes of assessing actual care. One approach is to look at the three different periods in the pattern of care identified by the applicant, apply a percentage to each period, then combine and average the percentages to calculate the overall percentage of care. I am satisfied this is a reasonable approach in the circumstances of this case. It does not require assessment by reference to nights but allows for an overall assessment having regard to a range of matters relevant to A’s care at different times during the care period.
In taking this approach, I have formed the view that during the period A is boarding, the applicant contributes 60% of the care and the second respondent contributes the remaining 40%. This takes into account that all A’s expenses are paid during these periods, either by the applicant or at his request, and the second respondent is not required to provide any financial support. It nonetheless also takes into account that the applicant and the second respondent otherwise provide emotional support and ongoing responsibility for major decisions should they arise during the periods, in equal measure. It does not matter that no such major decisions have arisen for A during the period in question. The evidence is that if they had arisen, both the applicant and the second respondent would have been involved in this decision-making process.
For the balance of the periods, either the applicant or the second respondent is solely responsible for care, and given they share custody equally, their respective percentage of care for A is 50% each. This is not in dispute. When these percentages are combined with those applicable to the period when A is boarding, it produces a result that the applicant would be assessed overall as having actual care of A of 55% and the second respondent 45%. This does not correspond to the existing percentages of care determined by the first respondent. Furthermore, if the existing percentages of care for A were changed to reflect my assessment of actual care of A during the care period, this would affect the respective cost percentages of each of the applicant and the second respondent. Under section 55C of the Assessment Act if there is a percentage of care in the range of more than 52% but less than 65%, the cost percentage will be 51% plus 2% for each percentage point over 53%t. Thus, given my assessment of actual care, the cost percentage for the applicant would also be 55% rather than 50% as currently determined.
Conclusion
Having found that the actual care of A by the applicant for the care period does not correspond with the existing determination and that there would be an impact on the applicant's cost percentage, I am satisfied the existing determination must be revoked, effective from 8 January 2013 (s 54F of the Assessment Act). As provided by s 50, if a percentage of care determination is revoked, the responsible person’s percentage of care for the care period must be determined in accordance with s 50(3).
I therefore set aside the decision under review and substitute a decision that the existing determination for the percentage of care be revoked as of 8 January 2013 and from that date the applicant’s percentage of care for A is 55% and the second respondent’s percentage of care is 45%.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member ..............................[SGD]..........................................
Associate
Dated 17 April 2014
Date of hearing 11 February 2014 Applicant In person Solicitors for the Respondent Australian Government Solicitor Other Party In person
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