Polec & Staker & Anor (SSAT Appeal)
[2011] FMCAfam 959
•9 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POLEC & STAKER & ANOR (SSAT APPEAL) | [2011] FMCAfam 959 |
| CHILD SUPPORT – SSAT APPEAL – Child undertaking apprenticeship and not living with either parent – meaning of “care of the child” – appeal allowed. |
| Child Support (Registration and Collection) Act 1988, ss.35, 36 Child Support (Assessment) Act 1989, ss.12, 74, 75 |
| Appellant: | MR POLEC |
| First Respondent: | MS STAKER |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 9305 of 2010 |
| Judgment of: | Hughes FM |
| Hearing date: | 13 April 2011 |
| Date of Last Submission: | 13 April 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 9 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Smith |
| Solicitors for the Applicant: | Maddens Lawyers |
| Counsel for the first Respondent: | Nil |
| Solicitors for the first Respondent: | Nil |
| Counsel for the second Respondent: | Mr Boughton |
| Solicitors for the second Respondent: | Australian Government Solicitors |
ORDERS
The appeal from the decision of the Social Security Appeals Tribunal of 17 August 2010 is upheld.
The decision of the Social Security Appeals Tribunal of 17 August 2010 is set aside and the matter remitted for rehearing.
IT IS NOTED that publication of this judgment under the pseudonym Polec & Staker & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9305 of 2010
| MR POLEC |
Appellant
And
| MS STAKER |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
This is an appeal from a decision of the Social Security Appeals Tribunal (SSAT) made on 17 August 2010.
The appellant and the first respondent are parents of [X], born [in] 1992. The appellant is the parent liable to pay child support pursuant to an administrative assessment of child support. The first respondent is the parent entitled to child support.
Until 6 December 2009, [X] lived with his mother in [omitted], Victoria. On that day he moved to [P] to undertake some work experience with a view to obtaining an apprenticeship. He commenced an apprenticeship in January 2010. The appellant argued that the child’s move to [P] constituted either a child support terminating event (which would end his liability to pay child support) or a significant reduction in the percentage of care provided by the first respondent (which would result in a reduction in the amount of child support payable by him). The first and second respondents argued that there had been no change to the ongoing care of the child by the first respondent within the meaning of the Child Support Assessment Act 1989.
Background
A child support assessment was first issued in relation to the child on 24 March 1998. From 4 July 2009, by consent, the particulars of the assessment indicated that the first respondent provided 100 per cent of the care of the child and the appellant zero per cent.
On 27 January 2010 the appellant contacted the Child Support Agency to advise that the child was no longer living with the first respondent and was boarding with a third party in [P].
On 8 February 2010 the Child Support Registrar decided that the change to [X]’s living arrangements did not require a change to the child support assessment on the basis that the first respondent was still providing care for the child.
On 13 March 2010 the appellant objected to that decision.
The objection was disallowed on 12 May 2010.
On 26 May 2010 the appellant lodged an application in the SSAT for a review of the decision.
On 17 August 2010 the SSAT affirmed the decision under review.
On 6 October 2010 the appellant lodged his appeal in this Court from the decision of the SSAT.
The SSAT decision of 17 August 2010
After setting out the history, the Tribunal identified the issue to be determined as being whether the particulars of the child support assessment ought to have been amended as a result of a change in the first respondent’s care of the child when the child left her home in December 2009.
In the hearing before the Tribunal, it was common ground that the child relocated to [P] in the first week of December 2009. He initially lived with some family friends, the [B]s, until about Easter 2010. He then stayed with his paternal grandfather for eight days before moving to live with his maternal grandmother at [omitted]. The first respondent said the child had been living with his grandmother since the end of June 2010. The appellant told the Tribunal the child had been living with his grandmother “for the past three months” which suggests from about May 2010 but nothing turns on that difference. At the time of the Tribunal hearing in August 2010, the child remained living with his maternal grandmother.
The appellant told the Tribunal that the only financial support he provided for the child was in accordance with the child support assessment. In terms of emotional support, he told the Tribunal that, since the child left his mother’s home in December 2009, he had spoken with the child by telephone two or three times each week and visited him four times.
The first respondent told the Tribunal she had almost daily telephone contact with the child and visited him every three or four weeks.
In terms of financial support, the first respondent told the Tribunal that she made a payment to the B family of either $500 or $550 in December 2009 and a second payment of $220 towards the end of January 2010. She said she did not know whether or not the child also paid money to the B family from his wages.
The first respondent told the Tribunal that the child’s maternal grandmother does not charge the child for any rent or board, nor does she require him to contribute to the payment of any utilities. The child buys his own food, although the first respondent provides him with meat and some cooked meals when she visits.
The first respondent also told the Tribunal that she deposited $130 each week into a bank account for the child. However, the account is in her sole name and the child is not a signatory to it. She said the child asked her to do this as a means of enforced saving by him rather than giving him money directly. At the time of the Tribunal hearing, the first respondent had not made any withdrawals from the account on behalf of the child. One inference which might be drawn from this evidence is that the child’s wages were sufficient to enable him to meet his own everyday expenses.
The first respondent said she had paid the child’s ambulance subscription. Although the date and the amount are not specified in the decision, it appears from bank statements before the Tribunal that the amount was $75 paid on 1 April 2010. On 4 June 2010 she also paid $320 for the child’s TAFE fees and textbooks.
On one reading of the decision it seems that, besides these payments, the first respondent provided no direct financial support of the child. However, the documents provided by the Tribunal include five pages of bank statements upon which the first respondent relied to establish that she provide ongoing financial support for the child. The bank statements relate to the period 30 November 2009 to 26 March 2010. Most of the transactions are blacked out, leaving only those which are said by her to relate to the support of the child. Each transaction has a handwritten annotation indicating what the payments were for. They include things such as work boots, clothing, tools, sporting expenses and car insurance. A handwritten note at the bottom of the first page of the statement reads as follows:
Some examples of payments of items for [X]. Unfortunately I don’t always use a card to pay.
The first respondent also relied upon an e-mail from Ms B which was dated 6 May 2010. The substance of it reads as follows:
[X] is currently living with our family in [omitted] whilst undertaking his apprenticeship as a [omitted]. During this time his mother, Ms Staker, has been supporting him financially and emotionally. She contributes $130 per week for food, purchases other items he needs and assist him with any other financial needs he may have. [X] speaks with his mother most days and she has day to day decision making in relation to his welfare.
The appellant pointed out that the child left the home of the [B]s in May 2010. He also challenged the evidence of the bank statements, saying that, without the relevant receipts, there was nothing to support the handwritten notes that the purchases were for the child.
Findings of fact by the Tribunal
The only findings of fact made by the Tribunal were those which were agreed between the parties. The Tribunal accepted, firstly, that the child left his mother’s home in December 2009 in order to undertake an apprenticeship which commenced in January 2010; secondly, that the child has lived with various friends and family members since that time; and, thirdly, that both parents have continued to provide the child with ongoing emotional support through regular telephone contact and visits. [1]
[1] SSAT decision 17 August 2010, paragraph 23
The Tribunal declined to make any finding in relation to the contested evidence about financial support of the child. It said the following about the extracts from the bank statements and the e-mail from Ms B:
On the matter of bank statement extracts and an e-mail from Ms B which have been provided by Ms Staker in support of a submission that she continues to provide financial support for [X], the probity of which is contested by Mr Polec, the Tribunal declined to make any such findings.
Application of the law by the SSAT
The Tribunal’s consideration of the relevant law and its application to the facts is set out at paragraphs 25 to 37 of the decision.
The Tribunal firstly identified the relevant provisions as being sections 35 and 36 of the Child Support (Registration and Collection) Act 1988. This is incorrect. Section 35 does not apply to a liability arising under a child support assessment[2] and section 36 is only relevant in particular circumstances, none of which arose in this case.
[2] S.35(3) Child Support (Registration and Collection) Act 1988
Counsel for the appellant correctly identified section 74 and 75 of the Child Support (Assessment) Act 1989 as the relevant provisions:
SECTION 74 - REGISTRAR TO GIVE EFFECT TO HAPPENING OF CHILD SUPPORT TERMINATING EVENTS ETC.
74(1) [Registrar to take immediate action] If:
(a) child support is payable for a child; and
(b) the Registrar is notified of, or otherwise becomes aware of:
(i) the happening of a child support terminating event in relation to the child, a liable parent, or a carer entitled to child support, or all 3; or
(ii) the happening of an event or change of circumstances that affects the annual rate at which the child support is payable under this Act;
the Registrar must immediately take such action as is necessary to take account of the happening of the event or change of circumstances (whether by amending any administrative assessment or otherwise).
74(2) [Registrar may take such action as considered appropriate] Nothing in subsection (1) is to be taken to prevent the Registrar from taking such action as the Registrar considers appropriate to take account of the likely happening of an event or change of circumstances of which the Registrar is notified or otherwise becomes aware (whether by amending any administrative assessment or otherwise).
Section 75 empowers the Registrar to amend any relevant administrative assessment if the change of circumstances would change the person’s costs percentage for the child.
In conducting a merits review of the decision by the Registrar, it was necessary for the Tribunal to consider whether or not there had been either a child support terminating event or an event or change of circumstances that would affect the annual rate of child support.
Section 12 of the Child Support (Assessment) Act 1989 defines a child support terminating event. That provision was correctly identified by the Tribunal, notwithstanding its incorrect starting point at section 35 of the Child Support (Registration and Collection) Act 1988, rather than section 74 of the Child Support (Assessment) Act 1989.
The relevant part of section 12 is contained at subsection 2AA which is as follows:
12(2AA) [Where no eligible carers] A child support terminating event happens in relation to a child if:
(a) both of the parents of the child are not eligible carers of the child; and
(b) there are no non parent carers entitled to be paid child support in relation to the child.
An “eligible carer” is defined in the Child Support (Assessment) Act1989 as being “a person who has at least shared care of the child”.[3]
[3] Section 7B
A person having “shared care” of a child is defined in the Child Support (Assessment) Act 1989 as having between 35% and 65% care of the child.[4]
[4] Section 5(3)
Neither the Assessment Act nor the Registration and Collection Act defines “care of the child”.
In the absence of a definition of “care of the child”, the Tribunal looked to “The Guide”, an on-line resource published by the Child Support Agency to assist people to understand the law in relation to child support and its application in accordance with government policy. The Guide is updated from time to time. The Tribunal set out the relevant part of the current version of the Guide, emphasising certain parts by underlining, as follows:
Percentage of Care
The percentage of care is the mechanism in the child support assessment formula that 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, CSA can base the care determination on hours of care over the care period if a determination based on nights would be appropriate. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.
Where parents are separated by living in the same house, CSA will generally accept that the parents share the care of their children equally. CSA will determine that each parent has a care percentage of 50% unless either parent is able to show that this is not the case.
Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time. For 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 babysitter, 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 as who is meeting the child’s costs, rather than just the accommodation arrangements themselves. CSA will give weight to statements from both parents and any non-parent carers. [Tribunal’s emphasis]
In this case it was necessary to determine whether or not the care arrangements for the child had changed as a result of him leaving his mother’s home. At paragraph 34 of the decision, the Tribunal noted that the percentage of care of a child by a particular person will usually be worked out by reference to the number of nights in a person’s care but in limited circumstances were a child is not living with that person, “consideration must be given to responsibility and the making of arrangements for the child’s welfare as well as the meeting of the child’s costs”. However there is nothing in the reasons for decision to indicate the Tribunal gave any consideration to those factors in this case. Rather, the Tribunal simply stated its conclusion at paragraphs 35 to 37 as follows:
35. In applying the facts of this case to the policy as extracted above, the Tribunal is not satisfied that as a consequence of [X]’s relocation to [P] in December 2009 to undertake an apprenticeship in 2010, that the level of his mother’s care of him changed or ceased to be at least shared care (per section 7B of the Assessment Act), such that she was not an eligible carer (per subsection 12(2AA) of the Assessment Act). As the Tribunal is not satisfied that [X]’s move away from his mother’s home in December 2009 and his commencement of an apprenticeship in January 2010 falls within any of the criteria set out in relevant section 12 subsections extracted above, it cannot be concluded that a terminating event, and thus an affecting event, has occurred.
36. This means that in the absence of an affecting event operating by force of law or a terminating event (as defined in section 4 of the Registration and Collection Act), there is no basis upon which the particulars of the Register may be varied pursuant to section 36 of the Registration and Collection Act.
37. Whilst the Tribunal is sympathetic to Mr Polec’s rationally argued submission that [X]’s changed circumstances are supportive of a conclusion that he is now living independently, and thus no longer in Ms Staker’s care for child support purposes, the legislative scheme does not characterise care as referable alone to overnight presence in a parent’s home, nor does the legislative scheme otherwise provide for the ceasing of a maintenance liability prior to a child reaching 18 years of age. However, it is open to Mr Polec to discuss with the Child Support Agency or his legal representative the making a change of assessment application based on [X]'s commencement of an apprenticeship in January 2010.
The Tribunal then affirmed the decision of the objections officer under review.
Grounds of appeal
Grounds 1 and 2 of the Notice of Appeal allege the Tribunal erred in law by applying sections 35 and 36 of the Child Support (Registration and Collection) Act 1988 and failed to apply sections 74 and 75 of the Child Support (Assessment) Act 1989. Although this was conceded by the second respondent, it was argued that the error had no bearing on the ultimate conclusion and ought not, therefore, require the matter to the remitted for re-hearing. I agree. The Tribunal said that it was required by virtue of sections 35 and 36 of the Child Support (Registration and Collection) Act 1988 to consider whether the undisputed fact that the child was no longer living with his mother and had commenced an apprenticeship constituted a terminating event or operated by force of law to vary or affect the appellant’s liability to pay child support. The application of sections 74 and 75 of the Child Support (Assessment) Act 1989 would have required the same consideration.
Ground 3 alleged the Tribunal erred in law by adopting an inadequate definition of “care” of the child.
In support of this ground, the appellant argued that a child support terminating event had occurred because, as a result of the child moving to [P], neither parent was an “eligible carer” within the meaning of the legislation. As the only definition of eligible carer in the legislation refers to the percentage of care provided by a person for the child, it was necessary for the Tribunal to determine what was meant by “care” of the child.
Counsel for the appellant submitted that, in the absence of a statutory definition of “care”, the principles of statutory interpretation require the words of the Act to be construed having regard to the purpose or objects of the Act. I agree.
Section 4 of the Child Support (Assessment) Act 1989 sets out the objects of the Act as follows:
4(1) [Principal object] The principle object of this Act is to ensure that children receive a proper level of financial support from their parents.
4(2) [Particular objects] Particular objects of this Act include ensuring:
(a) that the level of financial support to be provided by parents for their children is determined according to the capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
(b) that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and
(c) that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
(d) that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
(e) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
The objects are clearly directed to ensuring that a person with the ongoing daily care of a child should receive adequate financial support from the parents of the child according to the capacity of each of the parents to provide that support.
In the absence of a legislative definition of “care” of the child, the Tribunal was entitled to have regard to the Guide published by the Child Support Agency. However the Tribunal did not adequately consider the matters set out in the Guide and, in particular, “who has responsibility for making arrangements for and decisions about the child’s welfare as well as who is meeting the child’s costs”.
The only finding of fact made by the Tribunal is that both parents have continued to provide ongoing emotional support for the child.
The emotional support of the child is only one small aspect of the overall care for the child. The appellant told the Tribunal that he expected to provide the child with lifelong emotional support but that does not mean he is a carer of the child for the purpose of the legislation. The Tribunal did not discuss who has responsibility for making arrangements or decisions about the child’s welfare. It may be that, apart from the initial arrangements for the child to board with the [B]s, the child has been making his own decisions about where he lives and is wholly or substantially caring for himself.
The most obvious matter to be considered in the circumstances of this case in which the child was living with neither parent was who is meeting the child’s costs. There was limited discussion by the Tribunal of the financial arrangements for the child and no findings were made. The evidence of the second respondent that none of the money she had been putting aside in a separate account for the child had in fact been used for his benefit would logically weigh in favour of a finding that the child is wholly or substantially self supporting. Such a finding might have been moderated by the evidence of the second respondent that she was continuing to make ad hoc payments for particular items for the child. What was required was an analysis of the evidence which did not occur.
In circumstances where the child for whom the second respondent had previously had 100 per cent care had moved from her home and was employed as an apprentice on a full-time basis, it was not sufficient for the Tribunal to simply decline to make any findings on disputed facts and then conclude that it could not be satisfied there had been a relevant change in the level of care provided. Even if no findings could be made on the disputed facts, the agreed facts established, at least on a prima facie basis, that there had been a major change in the care arrangements for the child. There was no consideration by the Tribunal of what that meant for the purpose of the Act, even though the appellant argued the move represented a terminating event or at least a significant reduction in the level of care provided by the first respondent. The Tribunal’s finding that there had been no change to the care arrangements cannot be supported on the evidence before it. Ground 3 is, therefore, is established.
Grounds 4 to 6 were acknowledged by counsel for the appellant to really be subsets of ground three, namely the adoption by the Tribunal of an inadequate definition of “care” of the child.
Ground 4 alleged the Tribunal failed to consider the child’s income. This ground is made out as there is no reference in the decision at all to the child’s income. It is not apparent from the decision whether or not any evidence about the child’s income was provided. It is, however, a highly relevant consideration in determining whether or not the first respondent was financially supporting the child which, in turn, is relevant to a consideration of whether she continued to be an eligible carer within the meaning of the legislation.
Ground 5 alleged the Tribunal failed to take into account that the mother is no longer financially contributing to the child. This ground, as it is phrased, is not made out as it assumes as a fact that the first respondent was not financially contributing to the support of the child. There was evidence from the first respondent that she was providing at least ongoing but ad hoc financial assistance to him.
Ground 6 alleged the Tribunal failed to consider the extent to which any third party had care of the child. This ground is made out.
The Tribunal did not address the issue which was relevant to a consideration of whether or not the first respondent remained an eligible carer of the child.
Ground 7 alleged that the Tribunal provided inadequate reasons for decision. This ground is made out. It is not possible to discern from the reasons provided why, in light of the agreed facts, the Tribunal found there had been no relevant change to the care arrangements for the child.
The proceedings will be remitted to the SSAT for rehearing.
Definition of “care” of a child
Given the lack of a relevant statutory definition of “care” of a child, all parties requested that the Court provided some guidance in relation to the matters that should be taken into account in considering whether and to what extent the first respondent continued to provide care for the child the subject of these proceedings.
Counsel for the second respondent submitted that a more helpful version of “the Guide” than the current version is that which existed on 23 January 2008 and which explicitly addresses the issue of determining ongoing daily care for a child. The relevant portion is as follows:
Ongoing daily care
There are a number of factors that should be considered in determining whether a person is providing “ongoing daily care”. Some of those factors, which are provided for guidance only, are:
· Living arrangements - where is the child residing and who is making decisions about where the child is residing;
· Daily physical needs - how are the daily needs being met for the child and who is meeting the costs of those needs;
· Social and other activities - who is responsible for making decisions about the child’s daily activities and who is meeting the costs of those activities;
· Representations to others - who takes responsibility for liaising with others about the child’s daily care and how does this occur.
The appellant agreed that the 2008 version of the Guide is more helpful than the current version. I have taken both versions into account in attempting to formulate a workable definition.
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?
An analysis of the evidence in relation to these considerations should assist the Tribunal in determining whether or not there has been a child support terminating event or a change in the percentage of care for the child provided by the first respondent.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Hughes FM
Date: 9 September 2011
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