QCDK and Child Support Registrar (Child support second review)

[2017] AATA 721

QCDK and Child Support Registrar (Child support second review) [2017] AATA 721 (23 May 2017)

Division:GENERAL DIVISION

File Number(s):      2016/5866

Re:QCDK  

APPLICANT

AndChild Support Registrar

RESPONDENT

WTVXAnd  

OTHER PARTY

DECISION

Tribunal:Senior Member J F Toohey

Date:23 May 2017  

Place:Sydney

The decision under review is set aside and substituted with the decision that, during the care period, care was shared equally.  This decision has effect from 9 March 2016.

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

Senior Member J F Toohey

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 Agency – percentage of care – parents separated under same roof – actual care – nights in care – other relevant factors – conflicting evidence – Tribunal not satisfied it could determine percentage of care based on actual care – date of effect – decision under review set aside and decision substituted that care during the care period was shared equally

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 37
Child Support (Assessment) Act 1989 (Cth) ss 50(1) & (2), 54A(1)

Child Support (Registration and Collection) Act 1988 (Cth) ss 87AA(1) & (2)

Cases

Beadle and Director-General of Social Security [1984] AATA 176
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Groth and Secretary, Department of Social Security [1995] FCA 1708

Secondary Materials

The Child Support Guide

REASONS FOR DECISION

Senior Member J F Toohey

23 May 2017

BACKGROUND

1. QCDK and WTVX are the parents of three children now aged 12, 7 and 5.  I will refer to them as “the father” and “the mother” respectively.  They married in February 2000.  They separated for several months in 2008 but stayed in the family home and had equal care of their child(ren).  They separated permanently on 10 January 2014 but both remained in the family home until March 2016, when the mother and children left. 

2. This decision concerns the percentage of care that the mother and father had for the children from 10 January 2014.  The application for review has a long history which it is necessary to set out in some detail. 

   THE FIRST DETERMINATION: 24 JANUARY 2014

3. The Child Support Registrar (the Registrar) assesses the amount of child support that a parent must pay according to a formula in the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act). The formula includes the percentage of care, or amount of time a parent is responsible for providing care for a child. Where there is, or is likely to be, a pattern of care, the Registrar makes a determination under s 50 of the Assessment Act.

4. Shortly after they separated on 10 January 2014, the mother asked the Registrar to make an assessment of child support on the basis of an agreement she and the father had reached that she would have 80 per cent care of the children and he would have 20 per cent.  When the Registrar’s office contacted the father, he agreed that they would share care as the mother described. 

5. Based on the agreed pattern of care, on 24 January 2014 the Registrar made a determination under s 50 of the Assessment Act that, from 10 January 2014, the mother had 80 per cent care of the children and the father had 20 per cent care. By letter dated 24 January 2014, the Registrar notified the parents of the determination, and the assessment that the father was liable to pay child support of $337.75 per month from 20 January 2014 “until your assessment is changed”.

6. In these proceedings, the father says that, notwithstanding what he told the Registrar’s office in January 2014, care of the children was not in fact shared on an 80/20 basis.  He maintains that, from January 2014, until 9 March 2016 when the mother left the family home with the children, they shared care equally.  The mother maintains care was shared on an 80/20 basis throughout that period.

   THE FATHER’S OBJECTION TO THE DETERMINATION

7. Towards the end of 2015, the relationship between the father and mother deteriorated.  They attended family dispute resolution and, in December 2015, a “parenting plan” was proposed under which the mother would have 65 per cent care and the father 35 per cent.     

8. Around 10 December 2015, the father contacted the Registrar’s office to advise the care arrangements had changed in accordance with the plan.  However, for reasons it is not necessary to go into here, the plan came to nothing.  In January 2016, the mother told the Registrar’s office that care was still shared on an 80/20 basis.

9. On 9 March 2016, the father lodged an objection to the Registrar’s determination of 24 January 2014.  He advised the Registrar that the mother and children had left the house that day.  He said: 

   The 20% care that I agreed to in January 2014 was because I didn’t understand what was meant by 20% care and because I was hoping that by doing what [the mother] said, she would not divorce me. The care of our children has always been shared care. I am therefore requesting that from 12 January 2014, our parenting be determined … to be shared care.

   THE OBJECTION DECISION: 27 MAY 2016

10. On 27 May 2016, an objections officer allowed the father’s objection and decided that each parent had 50 per cent care of the children from 10 January 2014.  In coming to this decision, the officer noted the conflicting evidence submitted by the mother and father.  She concluded that, “due to the disputed information provided by [the father and mother]”, she could not determine an actual care percentage for each parent from 10 January 2014.  Applying the Child Support Guide (The Guide), she decided that the assessment should reflect “50/50 shared care” while the parents were separated under the same roof.

11. As the father’s objection was lodged more than 28 days after the first determination, and as the objections officer was not that satisfied that special circumstances prevented him from lodging his objection earlier, the officer’s decision took effect from 9 March 2016 when the father lodged his objection (see: Child Support (Registration and Collection) Act 1988 (Cth) (the Registration Act), s 87AA).

12. On 12 July 2016, in a separate determination that is not the subject of these proceedings, the Registrar determined percentages of care from 9 March 2016 when the mother left the family home.  The determination referred to records showing that, up until 9 March 2016, care was shared equally.  This appears to be a reference to the objection officer’s decision rather than to any separate assessment of percentages of care up to that date.

    THE MOTHER’S APPLICATION FOR FIRST REVIEW

13. On 27 June 2016, the mother applied to the Tribunal for review of the objection decision (the first AAT review).  She maintained that she had 80 per cent care of the children from 10 January 2014 to 9 March 2016 and that the determination of 24 January 2014 should stand.

14. On 22 September 2016, the Social Services and Child Support Division (SSCSD) of the Tribunal set aside the objection decision and, in effect, re-instated the original determination that, from January 2014 to April 2015, the mother had 80 per cent and the father had 20 per cent care.  The SSCSD was not satisfied that the father’s evidence was credible and preferred the mother’s account.

    THE FATHER’S APPLICATION FOR SECOND REVIEW

15. On 2 November 2016, the father applied for “second review” by the Tribunal. He and the mother attended a hearing on 28 April 2017. In addition to documents provided by the Registrar in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “T-documents”), the Tribunal had before it a large volume of material, much of it submissions rather than evidence, submitted by the father and the mother. Both gave oral evidence.

    THE CARE PERIOD

16. A percentage of care determination is made for the care period that the Registrar considers appropriate in all the circumstances and reflects the pattern of care that the Registrar is satisfied a parent has had, or is likely to have for that period: s 50(1) of the Assessment Act.

17. A care period is generally a 12-month period from the day on which the actual care of a child began or changed.  It is assumed that the same care arrangements will apply for the subsequent 12-month period unless the Registrar is advised otherwise: The Guide at 2.2.1.

18. The Registrar’s determination identified the “assessment period” as 20 January 2014 to 19 April 2015.  It is not clear why the Registrar settled on a period of 15 months: it does not appear to have reflected the plans or expectations of either parent, but nothing turns on this.  The father’s liability to pay child support was expressed to continue “until your assessment changes” and it was not changed until the mother left the home in March 2016. 

19. The SSCSD assessed percentages of care for the care period of 12 months from 10 January 2014.  The SSCSD decided it should disregard a large number of documents submitted by the father and mother relating to events after that time, on the basis that they were not relevant to the arrangements during the care period. 

20. In the present proceedings, the Registrar submits that the appropriate period is 12 months from 10 January 2014, and not up to March 2016 when the mother left the house.

21. I agree that the relevant care period to be assessed, in accordance with The Guide, is the 12 months from 10 January 2014.  However, although they dispute their respective percentages of care, the father and the mother agree the percentages were more or less the same throughout the whole period from January 2014 to March 2016.  For that reason, I have taken into account some of the documentary evidence submitted by the parties concerning January 2015 to March 2016, after the care period, because it is the best evidence there is.

22. I have largely disregarded evidence of an overseas trip the father took in mid-2015 for approximately five weeks, and a trip the mother took around the same time for approximately two weeks, both of which were “one-off” events. 

    WORKING OUT ACTUAL CARE, AND EXTENT OF CARE, OF A CHILD

23. The percentage of care determined by the Registrar must correspond with the actual care that the Registrar is satisfied a parent has had, or is likely to have, during the care period: s 50(3) of the Assessment Act.

24. The actual care of the 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 the child was, or is likely to be, in the care of the person during that period: s 54A(1) of the Assessment Act.

25. In most cases, it will be relatively clear whether, and to what extent, a person is caring for a child.  Where there is doubt, The Guide sets out factors that the Registrar will consider.  The Guide represents government policy and should be applied by the Tribunal unless there are cogent reasons not to do so: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

26. The Guide provides that, in such a case, factors to be considered are:

    ·To what extent the person has control of the child, including having overall responsibility for the child and making:

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

    oarrangements for others to meet the needs of the child (delegated care).

    ·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extra-curricular activities.

    ·To what extent the person pays for the costs of meeting the needs of the child.

    ·To what extent the person otherwise provides financial support for the child.

    ·To what extent the child provides for his or her own needs or has those needs met from another source.

    ·To what extent the child is financially independent or financially supported from another source.

27. At 2.2.1, The Guide states:

    Where parents are separated but 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.

    The basis for the father’s objection

28. Referring to his conversation with the Registrar’s office in January 2014, the father says he only agreed that care was shared 80/20 because the mother told him those were their respective shares.  He says he was desperate to save his marriage and he did not dispute her claim that care provided by her mother and sister, and an au pair, were counted as care by her.  He maintains he had no idea how percentages of care are calculated, or of the implications for the amount of social security benefit to which the Registrar’s assessment entitled the mother. 

29. The father maintains that it was not until late 2015, when his sister stepped in to help him, that he learned the extent of the social security benefits the mother was receiving and fully understood the implications of the determination.  

    Nights in care – times the father was at the farm

30. There are few matters on which the father and the mother agree for the purposes of determining who had actual care of the children during the care period.  I will first consider nights in care, and then other relevant factors. 

31. It is not in dispute that the father worked as a taxi driver from 3pm to 3am on most weekends, either Friday and Saturday night, or Saturday and Sunday night.  Occasionally he missed a shift for one reason or another but this was his usual pattern.  The dispute over nights in care concerns the frequency and amount of time the father spent at a family farm that he and his siblings inherited jointly from their father.  It has been his practice for many years to spend time at the farm especially during busy shearing and crutching times.  The mother does not dispute that his schedule has remained more or less the same for the past 10 years.

    The father’s evidence

32. The father says he did not spend regular spent nights at the farm but spent, on average, one night each week there.  During busy periods, he could be away for most of the week; during other weeks he would not go at all.  

33. A file note made by the Registrar’s office shows that, in December 2015, the father said he works away at the farm three nights in three weeks.  According to the SSCSD decision, he said he went to the farm about once a month.  In his present application, he said he was at the farm only two nights at a time, every third weekend.

34. The father submitted a number of documents about businesses operated by the mother in 2014.  They include bank statements showing payments of $800 per month for rent on business premises used by the mother.  The father claimed the businesses occupied a large part of her time and that her bank statements show purchases across a wide area, indicating her frequent travel for business.  The mother claimed that she spent only about five hours each week on the businesses but the income disclosed on her tax return suggests it was probably more than that.

    The mother’s evidence

35. According to the SSCSD decision, the mother first said the father was at the farm on average for five days and four nights every second weekend but, when questioned, said it was on average every third weekend.  Giving evidence in these proceedings, she said he spent “90 per cent” of the time at the farm but, when asked about this, said he was away two to three nights each week, usually going on Monday or Tuesday and returning on Thursday. 

36. The mother provided a number of documents in support of her claim.  They include a letter to parents from the local church about a school holiday program.  I accept the mother’s evidence that she took the children to church but that itself does not advance what percentage of care she had.  Similarly, a letter from a clinical psychologist showing three dates in 2016 on which the mother attended an appointment with the eldest child for counselling does not assist me, and nor does a letter from the youngest child’s speech pathologist stating simply that he had been attending for therapy since May 2015. 

    Supporting evidence

37. Around the end of 2015, the father started keeping a detailed diary of the day’s events which he would dictate over the telephone to his sister who typed them into diary form.   It covers the period from September 2015 to January 2016.  I accept it was made contemporaneously and, although for a limited period, that it reflects the days’ events albeit with his own interpretation and commentary.

38. Around the same time, the mother produced a calendar covering February 2015 to January 2016, noting for each day when the father was at the farm and who had care of the children.  She acknowledges it was reconstructed from memory. 

39. There is room for error in any reconstruction from memory but, even without examining it in detail, the reliability of the mother’s calendar is questionable.  For example, the entry for 2 November 2015 shows “[Father] farm; [Mother] care” but an email she sent that day to a speech pathologist showed the father would be looking after their youngest child that day and so could not have been at the farm. 

40. In an effort to substantiate their claims, the mother, and the father’s sister on his behalf, independently made copies of the “sign in sign out” book from the younger children’s childcare centre.  I accept they diligently copied the book for each day the children were in care in 2015.  Even on a quick glance, however, it is apparent that they cannot both be correct. 

41. For example, in the week commencing Monday 1 August 2014, the father’s version shows the child(ren) in care for Thursday and Friday only, with the mother signing in and out both days.  The mother’s shows the child(ren) in care five days, and father signed in one day, and out on two other days.  In the week commencing Monday 19 September 2014, the father’s version shows the mother signing in and out each day for four days; the mother’s shows the child(ren) in care for five days, and the father signing in on two days and out on three days.

42. There are numerous other inconsistencies in their copies of the “sign in sign out” book which the father and the mother both acknowledged at the hearing and were at a loss to explain.  They were allowed seven days after the hearing to make any further checks and see whether they could explain the differences.  Neither produced an explanation and the Tribunal is left with their conflicting versions.

43. The manager of the childcare centre provided a statutory declaration stating that the youngest child had been attending the centre since April 2014; the mother dropped him off and picked him up on Tuesday, Wednesday and Friday “with the occasional Monday”; the father, “is to pick him up on the occasional Thursday afternoon”.  The statutory declaration does not assist because it is at odds with the records made by the mother.  Whatever the explanation, the Tribunal is left with information that is impossible to reconcile.

44. In the end, the child care records go to whether the father was at the farm each week (or most weeks) from Monday or Tuesday to Thursday as the mother claims.  For the reasons above, I am not satisfied that the mother’s records can be relied on.  That is not intended as a comment on her honesty, but the records are plainly unreliable. 

    Other nights

1. The father acknowledges that there were on average two nights each week when he was at work and did not care for the children.  However, he says there were nights when the mother was at work or away for some reason when she did not care for the children.

2. Asked whether she spent many nights away from the children, the mother said she had a business meeting on average once a week, but was at home every night.  However, when pressed, she “forgot to mention” that, from April to August 2015, she was away overnight for work, and she then agreed that she was away one to two nights a week from November 2015 but was still home “often”.  From early 2014, she worked in a retirement village.  She did some evening shifts and, from mid-2015, some overnight shifts. 

3. Between March 2014 and December 2015, the family had four live-in au pairs, each of whom stayed for approximately 12 weeks at a time.  As well, the mother’s mother lived with the family for extended periods during which she cared for the children.  According to the father, there was “barely a week” from 2014 to 2016 when either the children’s grandmother or an au pair was not there.  The mother did not dispute this.

4. During the two weeks or so the mother was overseas in 2015, when her mother stayed in the family home to help care for the children, the mother recorded the children as in her own care.  I accept she may have genuinely believed those nights should be attributable to her but, if so, I do not agree.  The fact that she did record them as such tends to support the father’s claim that he agreed in January 2014 that care was shared 80/20 because she told him that was how it was.

5. I find that for a considerable part of each week during the care period, the children were cared for by their grandmother or an au pair rather than by either parent. 

   Other factors

6. Turning to other relevant factors, the father does not dispute that the mother made most of the arrangements for the children’s care including for her mother and au pairs to care for them.  I accept that the mother probably took the greater share of responsibility for making arrangements with the childcare centre, for various appointments the children had to attend, and for social events such as other children’s parties. 

7. The father maintained that he and the mother shared the overall responsibility for the children equally, although he acknowledged that most correspondence such as from the school and from health professionals went to the mother.  The mother agreed that, although she made most appointments, she discussed them with him and he could accompany her if he could.  He agreed that she made all the arrangements for their care, including by her mother, but said that was often against his wishes and was to allow her time to run her business.  The mother did not dispute his claim that he cooked at night, even when she was in the house, although he acknowledged that her mother would cook when she was there.

8. The father described the mother’s approach to discipline as “heavy-handed” and his own as “more easy-going”.  The mother said she was more aware of what the children needed and she had to tell him what they needed and when discipline was required. 

9. The mother agreed that the father helped the eldest child with her homework and would drive her to school, and he would drop the younger children at pre-school on his way to work, because she does not drive, but she maintained that she always had to remind him.

10. As to who was responsible for supporting the children financially, the family home was unencumbered.  The mother agreed that the father paid the rates and said, as best as she recalled, they shared the gas bills and she might have paid for electricity. 

11. The father maintained that, up until 2014, he paid for everything except clothing.  However, he acknowledged that the mother paid for the internet, which he did not use, and for Foxtel and telephones.  He claimed she put those costs on his credit card and he paid the card off.  The mother claims she paid him back in that he deducted those costs from the child support he owed her.  He gave evidence that, from 2014 when they separated, the mother used his debit card, which he did not need himself.  She disagreed.  He acknowledged that she paid for “a bit more than 50 per cent” of their food.  He agreed that she paid for the children’s uniforms and shoes but said he paid for the (public) school fees and for excursion.  She claimed she met all their education expenses.

12. Records such as bank statements and receipts are of limited assistance.  The mother submitted a number of receipts issued in 2016, well after the care period.  They include an enrolment form for the eldest child showing payment in 2016 of $1,200 for school fees.  The form is signed by both parents and shows credit card transaction details against a card in the name “[The mother] or [the father]” and signed by the father.  A receipt dated May 2016 for a school uniform by the youngest child’s childcare centre shows payment received by [the father’s family name].  A bank statement in the mother’s name for January to April 2014 shows regular payments at supermarkets, chemists and the like, most of them against a debit card.  Statements from the childcare centre issued in the mother’s name show regular payments during the care period.

    CONCLUSION

13. Where percentages of care are disputed, a determination will be a matter of judgment based on the evidence.  Some matters, such as nights in care are potentially determinable objectively, although that has not proven to be so in this case.  Others, such as who has overall responsibility for making major decisions, are not so readily determined where there is a dispute as to the facts.

14. Despite their differences, I accept that the father and the mother have each tried their best to give evidence honestly.  However, it remains the case that nights in care during the care period cannot be determined with any confidence from the information before me, and the supporting information is of limited assistance.  The evidence about other factors sheds little light because of the extent of disagreement and the lack of independent evidence.

15. Taking into account all of the evidence, I am not satisfied that the mother had 80 per cent care during the care period.  Whether the father had as much as 50 per cent care is not clear, but I am unable to determine that he did not, or to find a sound basis for concluding that something other than 50/50 percentage of care accurately reflects their arrangement at that time.  For this reason I set aside the decision under review and substitute the decision that, during the care period, care was shared equally.     

    Date of effect of this decision

16. As it applies to the father, section 87AA(1) of the Registration Act provides that, if a person lodged an objection to a care percentage decision more than 28 days after notice of the decision was served, and the Registrar allows the objection, the date of effect of the review decision is the day on which the person lodged the objection.

17. By s 87AA(2) of the Registration Act, the Registrar may extend that period if satisfied that there are special circumstances that prevented the person from lodging the objection within 28 days.

18. In this case, the father says it was not until his sister started to help him in late 2015, and he came to realise the significance of the original determination, that he lodged his objection. 

19. Even then, it was not until 9 March 2016 that he lodged his objection. The objections officer was not satisfied that special circumstances prevented him from lodging his objection within 28 days and applied s 87AA(1) of the Registration Act. The objections officer therefore decided that her decision had effect from 9 March 2016.

20. In these proceedings, the father has not specifically sought review of the date of effect of the decision but he maintains he was not aware of the significance of the original determination and that the mother, in effect, misled him.  I have therefore taken him to be objecting to the date of effect of the objection decision which he seeks to have restored. 

21. I accept the father may not have fully appreciated the effect of the original determination in that the mother became entitled to more by way of social security payments than he realised, but he was given written notice of the decision and it was open to him to clarify its meaning and significance with the Registrar’s office at any time. 

22. The meaning of “special circumstances” in the context of social security law has been considered by the Tribunal and the courts on many occasions.  It is “by its very nature incapable of precise or exhaustive definition” and contemplates circumstances that are “unusual, uncommon or exceptional”: Beadle and Director-General of Social Security [1984] AATA 176 at [12]. Circumstances are required that distinguish an applicant’s case from others and take it “out of the usual or ordinary case”: Groth v Secretary, Department of Social Security [1995] FCA 1708 at [12]. It is relevant that s 87AA(2) provides that, not only must special circumstances exist, a person must be prevented by them from applying within 28 days.

23. I am not satisfied in this case that special circumstances prevented the father from lodging his objection before 9 March 2016.  It follows that, in setting aside the SSCSD’s decision and, in effect, restoring the objection decision, this decision has effect from 9 March 2016.

    CONCLUSION

24. For these reasons I set aside the decision under review and substitute the decision that, during the care period, care was shared equally.     

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated:            23 May 2017

Date(s) of hearing:	28 April 2017
Advocate for the Applicant:	Ms H McMaster
Solicitors for the Respondent:	Department of Human Services
Other Party:	In person