PYYM and Child Support Registrar (Child support second review)

[2018] AATA 4670

PYYM and Child Support Registrar (Child support second review) [2018] AATA 4670 (19 December 2018)

Division:GENERAL DIVISION

File Number(s):      2018/2622

Re:PYYM

APPLICANT

AndChild Support Registrar

RESPONDENT

AndPLWQ

OTHER PARTY

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:19 December 2018

Place:Sydney

The Tribunal sets aside the decision of Social Services and Child Support Division and substitutes it with the finding that the percentage of care for Child MA is determined to have been, from 20 May 2016, at the rate of 20% for PYYM and 80% for PLWQ.

The effective date of such a determination is from 13 April 2017.

...........................[sgd].............................................

Chris Puplick AM, Senior Member

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.

Catchwords

CHILD SUPPORT – percentage of care –– actual care – care period – irregular care arrangement – non parent carer – delegated care – inconsistent evidence establishing nights of care –decision under review set aside and substituted

Legislation

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

CASES

Shi and Migration Agents Registration Authority [2008] HCA 31

SECONDARY MATERIALS

Child Support Guide, version 4.36, 5 November 2018

REASONS FOR DECISION

Chris Puplick AM, Senior Member

19 December 2018

1. The matter before the Tribunal relates to the calculation of the percentage of care for Child MA which should be accorded to his father PYYM (the Applicant) under the provisions of the Child Support (Assessment) Act 1989 (the Act).

   BACKGROUND

   (a)PYYM and PLWQ are respectively the father and mother of Child MA who was born in 2006 and is now 12 years of age. In evidence PYYM stated that the couple started to live together towards the end of 2005 or early in 2006 about six months before the birth of Child MA. They finally separated when Child MA was about three years of age.

   (b)On 6 June 2006 the Child Support Agency made a determination that PYYM was to start paying child support to PLWQ.[1] Payments were to be made directly from the father to the mother. This payment level was varied in August 2015.[2] At some stage (unspecified in the documentation but asserted to be in mid-2017) payment arrangements were varied so that payments are now made via the Child Support Registrar.

   (c)From the time of Child MA’s birth until May 2016 his mother (PLWQ) was assessed under the Act as having 100% care for him.

   (d)On 20 May 2016 PYYM notified the Child Support Registrar (the Registrar) that he was providing 104 nights support for Child MA each year and that he had been doing so since the couple’s separation.[3] This claim was disputed by the mother.[4]

   (e)As a result of investigations by the Registrar a decision was made, on 23 June 2016, not to vary the percentage of care assigned between the parents.[5]

   (f)On 13 April 2017 PYYM lodged an objection claiming that he had care of Child MA for two nights per weekend (Friday and Saturday), equivalent to 28% of care and providing documents in support of this claim.[6] Again, these claims were disputed by the mother.[7]

   (g)After further assessment by the Registrar, on 15 June 2017, an objections officer made a decision to set aside the original decision of June 2016 and instead award PYYM 14% of the care of Child MA, such a decision to be taken as having effect from 13 April 2017.[8] This had the effect, inter alia, of reducing the child support payment calculated and payable by PYYM to PLWQ. [Percentage claims are calculated with reference to a Table set out in Part 2.2.1 of the Department’s Child Support Guide and is based on the number of nights in a year for which the individual has control and support of the child.]

   (h)PYYM was not satisfied with the decision of the objections officer and appealed that determination to the Social Services and Child Support Division of this Tribunal (AAT1).

   (i)On December 14, 2017 the AAT1 set aside the decision of the objections officer and determined that PYYM was not entitled to any change in the child care percentage (being 0%) as established in May 2016.[9]

   (j)On 11 May 2018 PYYM lodged an appeal against the decision of the AAT1 with this Tribunal.

   [1] Section 37 - T Documents at [107]. The Tribunal is not required to reconcile apparently contradictory evidence that child support payments commenced in June 2006 (one month after the birth of Child MA) with PYYM’s sworn evidence that the couple separated in June 2009 when the child was three years of age.

   [2] Ibid at [110]-[111].

   [3] Ibid at [120]-[121].

   [4] Ibid at [122].

   [5] Ibid at [131].

   [6] Ibid at [155].

   [7] Ibid at [168]-[216].

   [8] Ibid at [96]-[100].

   [9] Ibid at [6]-[9].

   THE ISSUE

2. What percentage of care, if any, did PYYM have in relation to Child AM from 20 May 2016 for the following twelve months?

   RELATIONSHIP BETWEEN THE PARTIES

3. It is clear that the relationship between the parties is fraught with PWLQ claiming that she has concerns in relation to her ex-husband’s “verbally abusive and harassing” behaviour.[10] She states that it is for this reason that she does not consent to participate in the current Tribunal hearing. The couple no longer appear to communicate and arrangements are such that they do not meet whenever Child MA is being dropped off or collected.

   [10] PLWQ email to Tribunal of 28 November 2018, included in Other Party Documents at Tab [2].

4. At present PYYM seeks to make arrangements for care of Child MA by direct communication with the child, an arrangement which, not surprisingly, he finds unsatisfactory.

5. PLWQ further states that PYYM makes no serious contribution to costs associated with Child MA’s upbringing including medical costs, clothing and other expenses and that he is often behind with statutory child care payments.

6. The Tribunal does not agree with this claim and accepts evidence that PYYM has made ongoing financial contribution to Child MA’s welfare and expenses, including purchase of items such as a bike, IPad, mobile phone, clothing and more recently expensive dental care. Current child care payments are made through the Registrar.

7. Further, PLWQ asserts that the sleeping conditions for Child MA while in the care of his father are both inadequate and inappropriate. PYYM acknowledges they are less than satisfactory and is attempting to address this issue. 

8. However, these are not generally, matters for the Tribunal to consider specifically.

9. PLWQ also states that she is willing to facilitate greater access for PYYM to Child MA provided that this is arranged on a more consistent basis.[11] PYYM contests the bona fides of this offer given current difficulties in communication between the parties.

   [11] Idem.

   THE PERIOD IN QUESTION

10. PYYM made his claim for a variation in the child care percentage on 20 May 2016 and the Tribunal is required to make a finding as to the percentage of care provided by PYYM from that date and in the subsequent 12 month period

    PYYM’S CLAIMS

11. PYYM claims that, during the relevant period he had, for the purposes of the Act, care for Child MA every Friday night and Saturday night.

12. He claims that on most (allegedly 70%) Friday nights, Child MA stays with PYYM’s mother. His mother has supplied documentary evidence in support of this claim.[12] The Applicant told the Tribunal that he not only initiated this arrangement but that he contributes the sum of $40 to his mother for each night that she had care of Child MA.

    [12] Ibid at [164].

13. There is documentary evidence, albeit unsworn, before the Tribunal, not only from PYYM’s mother and brother but also from congregants at PYYM’s mother’s church, supporting these claims and they are not seriously called into question by any evidence provided by PLWQ.

14. PLWQ asserts that she makes the specific arrangements with Child MA’s grandmother, which is to be expected as she determines the times when she will drop the child to the grandmother’s house. The Tribunal accepts, however, that this is an arrangement initiated and supported by PYYM.

15. In addition there is a statement from PYYM’s new partner (Ms VA) that she also provides care for Child MA at their shared home if PYYM is unexpectedly required to work on nights when Child MA would normally be with him.[13]

    [13] Ibid at [221].

16. PYYM has supplied the Tribunal with numerous photographs showing him and his son together in various places and undertaking a variety of activities.

17. PLWQ has disputed the authenticity of some of these photographs by reference to issues of where they were taken, by whom and under what circumstances in terms of whether they were while Child MA was in PYYM’s care of whether they might have been in joint family circumstances[14].

    [14] Email to Tribunal dated 14 December 2018.

18. This matter was tested in sworn evidence at the Tribunal hearing and the Tribunal accepts that the overwhelming majority of the 58 images are as described by PYYM and should be treated accordingly.[15]

    [15] Email (with attachments) to Tribunal dated 12 December 2018.

    PLWQ’S COUNTER-CLAIM

19. PLWQ has provided written evidence to both the Registrar and to the Tribunal, but declined to participate in the Tribunal’s current hearing, as is her right.

20. PLWQ does not dispute that his father has care of their son on many occasions but she asserts that these arrangements are not consistent. In various emails to the Tribunal[16] she asserts:

    ·“I give (PYYM) every opportunity to see (MA) and he requests more days but cannot stick to one day, the past few weeks have been super irregular with (MA) stating that he prefer I make arrangements with (PYMM’s) mother as before, so as to avoid (PYYM) missed days or not showing up.” (2 July 2018)

    ·“(PYYM) had access to (MA) and originally chose to have (MA) Saturday evenings 1 night per week, all information previously provided still stands and it has not been consistent. I cancelled the Friday arrangements with (PYYM’s mother) and since (MA) has gone 2-3 times., and I’ve requested that he be picked up instead of me dropping him off, however I did pick up (MA) on a Monday morning as (PYYM’s mother) stated she was to (sic) tired to drop (MA) off. I have only just realised in this moment that this would be evidence that (MA) stays 3 nights but this is not true.” (29 August 2018)

    ·“I state again for the last time. (PYYM) has inconsistent care of (MA) since ending my previous arrangement with (PYYM’s mother) for those Fridays (MA) has not stayed with (PYYM’s mother). I have dropped (MA) on irregular Fridays when his cousins are there. (PYYM) sometimes picks (MA) up and sometimes he doesn’t. Since the last hearing as I said (MA) has not stayed over with (PYYM’s mother) consistently, (PYYM) requested more time but since then on 2 occasions I drove (MA) to Suburb “P” and no one was home. Most recent this past weekend (PYYM/Ms VA) did not show up to pick (MA) up. (PYYM) then picked (MA) up for 1.5-2 hrs on Tuesday.” (12 September 2018)

    ·“There is no set care plan between (PYYM) and I except he sees (MA) on sat and have him overnight. This happens inconsistently still as (PYYM) has missed weeks and also has advised that he has work over the weekend. (PYYM’s mother) had been overseas for sometime ….. Since the child support hearings and (PYYM) claiming days that I was responsible for (MA) as his own, when he didn’t even have (MA), I then decided to stop dropping (MA) and then (MA) magically did not see (PYYM’s mother) or family, so this was clearly not (PYYM’s) arrangement. …. This weekend (MA) went on a Friday to see his cousins and was meant to be dropped home, but ended up being dropped to the great grandparents in Rockdale. Without my consent…. (PYYM) picked (MA) up at 6pm on Monday from Rockdale. He then didn’t advise when (MA) was coming home and (MA) expressed that he wanted to come home, but was kept at (PYYM’s) until approx. 6-7pm wed.” (28 November 2018)

    ·“Dropped (MA) to church in Suburb “M” Sunday 9^th dec as (PYYM’s mother) Requested because the cousins and family were celebrating. (MA) was dropped home that evening. (MA) has expressed again that he doesn’t enjoy sleeping at (PYYM’s) house. Previous weekend (MA) did not stay with (PYYM) nor (PYYM’s mother)., (PYYM) has not had (MA) overnight since 27^th nov. Overnight stays are inconsistent. …. Happy as said to make consistent arrangements provided (PYYM) sticks to it. It’s all so inconsistent, surrounding (PYYM’s) care of (MA). But definitely I’ve not requested help from (PYYM’s mother) for (MA) and (MA) strictly goes occasionally” when his cousins are over, via my arrangement. I understand (PYYM) has stated (PYYM’s mother) cares for (MA) in place of him, but (MA) is 100% in my care and if (PYYM) is not available (MA) stays with me, unless he wishes to visit (PYYM’s mother) or the cousins.” (12 December 2018).

    [16] Emails to the Tribunal included in Other Party Documents at Tab [2].

21. It must be noted that most of the material supplied by PLWQ relates to contemporary arrangements rather than to the relevant period (May 2016 – April 2017) which is of concern to the Tribunal.

    EVIDENCE BEFORE THE TRIBUNAL

22. It was unfortunate that PLWQ declined to appear before the Tribunal, either in person or by telephone, however the Tribunal understands her reluctance to do so. It has had the benefit of her written submissions and was able to test a number of her claims and assertions by direct questions put to PYYM.

23. PYYM gave sworn evidence and answered questions from both the representative of the Registrar and from the Tribunal. The Tribunal found him to be a truthful and credible witness.

    A KEY MATTER AT ISSUE

24. PYYM states that his mother started to provide (delegated) care for Child MA from late 2015 and so this pattern of care was in place as at 20 May 2016. PLWQ disputes this and states that such arrangements did not commence until perhaps the early part of 2017.  The Tribunal does not accept this assertion by PLWQ since there is independent evidence that this arrangement was in place at least by October 2016. There is no definitive way to resolve this contradiction. The written testimony of PYYM’s mother is at best ambiguous referring only to an arrangement in “the years between 2015-2016,”[17] and statements from his brother and new partner fail to clarify the matter one way or another. However the Tribunal is persuaded that the Friday night arrangements were in place at least from October 2016 and may well have been in place much earlier.

    [17] Applicant’s Submission at Tab [1].

    FINDINGS

25. The current state of arrangements between the parties is both unsatisfactory and fluid and there are several matters of ongoing contention. However that is a matter for resolution other than before this Tribunal.

26. The Tribunal’s responsibility is to find, on the evidence before it at the date of the hearing,[18] what percentage of care PYYM had for Child MA in the 12 month period following his lodgement of claim on 20 May 2016.

    [18] Shi and Migration Agents Registration Authority [2008] HCA 31 at [37].

27. Care provided by a “non-parent carer”[19] and by a “parent carer” may be accumulated to the credit of the parent concerned where it is they who have made the arrangements for the care of the child in question.  This is referred to as “delegated care.”

    [19] The term used in the Child Support Guide at 2.2.1, relevantly under the heading “Care period”.

28. The basis for this is set out in the Child Support Guide which, at 2.2.1 under the heading ”Determining whether care exists” states, inter alia:

    “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 the person has control of the child, including having overall responsibility for the child and making:

    * major decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities, and

    * arrangements for others to meet the needs of the child (delegated care).”[20] (emphasis added)

    [20] A similar reference to “delegated care” may be found in Family Assistance Guide 2.1.1.60 Change of Care of an FTB Child

29. In that respect the Tribunal finds that:

    (a)Child MA was in the care of his maternal grandmother for approximately 35  nights during the relevant period, this being part of a regular arrangement arranged  by PYYM and hence, as “delegated care”, counting as part of his percentage of care;

    (b)Child MA was in the direct care of PYYM for at least 35 night during the relevant period, these being the Saturdays associated with the preceding Friday nights when Child MA was in the (delegated) care of his grandmother;

    (c)There is some corroborative evidence to support a finding that there were additional nights when Child MA was in the direct care of PYYM.

30. The above calculation is based on accepting that Child MA commenced his regular stays with his grandmother on or before 20 May 2016.

31. Were the Tribunal to find that this arrangement did not commence until October 2016, then it would come to the conclusion that the time spent with the grandmother would be in the order of 28 (rather than 35) nights but this would not necessarily affect the calculation that PYYM had direct care for the child for at least 35 additional nights.

32. In either event, the Tribunal finds that PYYM had care, as defined by the Act, for Child MA for in excess of the 51 nights which is prescribed as the minimum threshold to establish “regular care” under the table set out in section 2.2.1 of the Child Support Guide.

33. Section 54A(1) of the Act requires calculation of the actual number of nights when it can be satisfactorily established that the child in question was in the care of the relevant parent.

34. The more generous interpretation of the evidence (i.e. that the Friday night arrangements commenced in or prior to May 2016) would yield a percentage calculation in the order of 20-21%. The more conservative interpretation (i.e. the Friday arrangements commenced in or about October 2016) would yield a percentage in the order of 18-19%.

    CONSEQUENCES

35. This is an appeal against a decision made by AAT1. That decision was restricted to setting aside the decision made by the Objections Officer to vary PYYM’s percentage of child care from 20 May 2016 substituting a finding of 14% in place of the previous 0%. That decision was to take effect from 13 April 2017.[21]

    [21] Section 37 – Tribunal documents at [96].

36. The AAT1 did not make findings in relation to any other matters, specifically that any finding of a variation in the percentage would be effective on a date prior to 13 April 2017, or on any other date.

37. These issues could have been considered under section 96A of the Child Support (Registration and Collection) Act 1988, but given that the AAT1 was not persuaded on the primary matter of any variation to PYYM’s 0% assessment, it was not necessary for it to do so.

38. PYYM had the opportunity, which he did not exercise, to plead “special circumstances” which would have  justified his not making an appeal against the original percentage care decision within the statutory 28 days. This would have allowed the AAT1 to at least consider whether any date, other than 13 April 2017, would have been relevant in any varied determination.

39. Given this, it does not lie within the power of this Tribunal, on appeal, to address a matter which was not the subject of the determination of the Tribunal at first instance.

    THE REGISTRAR’S POSITION

1. The Registrar informed the Tribunal that it “adopts a neutral position in respect of the evidence and contentions of the father and mother that the Tribunal should prefer. Accordingly, the Registrar makes no submission in relation to the correct and preferable decision.”[22]

   [22] Respondent’s Statement of Facts, Issues and Contentions at [53].

   DECISION

2. The Tribunal sets aside the decision of Social Services and Child Support Division and substitutes it with the finding that the percentage of care for Child MA is determined to have been, from 20 May 2016, at the rate of 20% for PYYM and 80% for PLWQ.

3. The effective date of such a determination is from 13 April 2017.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

............................[sgd]............................................

Associate

Dated: 19 December 2018

Date(s) of hearing:	17 December 2018
Applicant:	In person
Solicitors for the Respondent:	Mr J Kim, Department of Human Services