QZBQ and Child Support Registrar (Child support second review)

[2016] AATA 215

QZBQ and Child Support Registrar (Child support second review) [2016] AATA 215 (6 April 2016)  

Division	GENERAL DIVISION
File Number(s)	2015/3806
Re	QZBQ
APPLICANT
And	Child Support Registrar
RESPONDENT
And	XLJJ
OTHER PARTY

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	6 April 2016
Place	Hobart

The decision under review is affirmed.

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Ms A F Cunningham, Senior Member

It is noted that 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 - pattern of care of care - parties living under same roof - little agreement between parties regarding care pattern - evidence of other party preferred - decision under review affirmed

LEGISLATION

Child Support (Assessment) Act 1989

Child Support (Registration and Collection) Act 1988

Administrative Appeals Tribunal Act 1975

CASES

Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959

SECONDARY MATERIALS

Child-Support Guide

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

1. The applicant, QZBQ seeks the review of a decision of the Social Services and Child-Support Division of the Administrative Appeals Tribunal dated 16 July 2015. The decision varied a decision of the Child-Support Registrar (CSR) so that in the child support assessment from 4 March 2015 the other party, XLJJ has a care percentage of 80 and the applicant a care percentage of 20.

2. The applicant disputes the care percentage allocated and contends that the information provided by the other party was either incomplete and at times untrue. Mr Sparkes who appeared on behalf of the CSR submitted that the decision under review should be affirmed. He noted that the Tribunal had undertaken a comprehensive review of the parties’ circumstances and the extent of care provided to the children in its various aspects on the basis of the evidence available to the Tribunal at the time.

   BACKGROUND

3. The applicant and the other party are the parents of three children, J born 2001, Z born 2009, and I born 2010. The other party applied to the Department of Human Services-Child Support (the Department) for a child-support assessment on 4 March 2015 claiming that she had 100% care of the children even though she and the applicant were still living under the same roof. The applicant claimed that he had 50% care of the children.

4. On 12 March 2015 the Department assessed care percentages of 51% for the other party and 49% for the applicant for all three children. The other party objected to the care percentages and her objection was disallowed on 15 May 2015. She applied to the Social Security Appeals Tribunal (SSAT) for a review of that decision on 19 May 2015. Following the amalgamation of the SSAT and the Administrative Appeals Tribunal (AAT), the Social Services and Child Support Division of the AAT heard the other party’s application for review and varied the decision under review as outlined above.

   ISSUES

5. The issue for determination by the Tribunal is the percentage level of care provided to the children by the applicant and the other party from 4 March 2015.

   LEGISLATION

6. The relevant legislation is contained in the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (Registration and Collection Act). Reference may also be had to the Child-Support Guide (the Guide).

7. The provisions relating to the determination of the percentage of care of a child are contained in Part 5, Division 4 of the Assessment Act. Section 50 provides that where a person has made an application under section 25 from the administrative assessment and the Registrar is satisfied that the person has a pattern of care during a period (the care period) for a child, then the Registrar must determine the person’s appropriate percentage of care corresponding with the actual care of the child having regard to all of the circumstances. Subsection 50 (3) provides that where a pattern of care is found, the percentage of care for the child during the care period must correspond with the actual care of the child that has occurred, or is likely to occur during a care period.

8. Section 54A (1) provides that the actual care of a child that a person has had or is likely to have during a care period may be worked out on the number of nights that the child was or is likely to be in the care of the person during the care period.

9. The concept of care is not defined in the Act but the term has been considered by the Court and the Tribunal on a number of occasions. The Guide sets out a number of considerations to determine the extent to which a person is caring for a child, namely:

   ·to what extent the person has 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

   oarrangements for others to meet the needs of the child.

   ·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, childcare, education, healthcare, 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.

10. The Federal Magistrates Court in Polec & Staker & Anor (2011) FMCAfam 959 endorsed the SSAT’s reference to the above criteria as set out in the Guide.

11. The Guide at 2.2.1 provides assistance where the parties have continued to reside in the same house. The Guide states that:

    “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. “

    EVIDENCE

12. Both the applicant and the other party gave oral evidence before the Tribunal and were cross-examined. The T documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

13. In his letter of application for review the applicant included a list of dates between 6 March 2015 and 15 May 2015 with details of his care of the children which he stated had been sourced from his mobile phone records. Also tendered was an email from the applicant addressed to the AAT and dated 19 November 2015 which contained the applicant’s comments on care of the children and other matters on specific dates between 9 March 2015 and 20 May 2015.

14. The other party tendered two letters addressed to the SSAT dated 25 June 2015 and 29 June 2015 and a letter addressed to the AAT date stamped 12 November 2015.

15. In her letters the other party provided details which contradicted much of the information provided by the applicant regarding his claimed care of the children. For instance on Friday, March 6, 2015 the applicant maintains that he arrived home at 3:50 pm and got J off the bus and that the other party had driven off in her car without warning, not returning until Sunday 8 March at 4 pm.  In response the other party claims that J’s bus arrives between 3:20 and 3:35 pm and that she would have been inside with J at the time the applicant arrived home at 3:50 pm.

16. The other party maintains that she undertook all of the childcare responsibilities including collecting the children from school, cooking their meals, bathing them and putting them to bed. She also claims to have done all of the housecleaning, children’s washing and grocery shopping.

17. The other party disputes the applicant’s contention that on Tuesday March 10 she had left the children in the applicant’s care returning home at 8:30 pm. The applicant records that on Tuesday 17 March he had arrived home from work at 4:15 pm when the other party left the house and that he had purchased groceries and then cooked the children’s meal, got them ready for bed and settled them to sleep, the other party arriving home at 9 pm. The other party claims that on most Tuesday and Thursday evenings the applicant would take their 17 ½-year-old daughter to dancing and did not return home until approximately 9 pm.

18. On Saturday 21 March the applicant records that the other party had left the house at 8:30 am returning at 6:30 pm and that he had cared for, fed and looked after the children. It was the other party’s evidence that this was the date when the family dog had died and that she was in Hobart with the children that weekend. It was the other party’s evidence that she had been informed by the applicant that the family dog Riley had been injured in an accident when he was cutting firewood and that he had put it down that evening. She produced a text message dated 21 March 2015 confirming this as well as a photograph of I sitting on the floor in her pyjamas at her mother’s house in Hobart with the stated time of 7:21 am.

19. In his notes the applicant claims that the other party went to Hobart for the weekend 25-26 March 2015 without warning, leaving the children at home with him. The other party pointed out that 25 March was a Wednesday and 26 March a Thursday when the children were at school and that she had taken them to their usual swimming lessons for which she paid.

20. The applicant states that on Monday 27 March the other party left at 4:25 pm and returned at 9:30 pm and that he had cared for the children and cooked them tea. The other party pointed out that 27 March was a Friday and not a Monday. Again the applicant claims that on Wednesday 29 March the other party left at 1:30 pm returning at 5:30 pm and he had cooked tea for the three children. This date is incorrect for 29 March was a Sunday. The applicant’s entries for Thursday 30 March and Tuesday 31 March state that he cooked the children’s meals. The other party pointed out that 30 March was a Monday and 31 March was a Tuesday so again the applicant’s entries are incorrect and could not therefore have been taken from his mobile phone records.

21. The other party identified numerous other mistakes in the applicant’s letter supporting his application for review. For instance on Thursday 2 April the applicant claims that he “dressed the children for school, made pikelets for breakfast and milo milkshakes. Had J with him after school when he went to fix the boat trailer. The applicant had left the house at 7:20 pm and returned at 9:30 pm”. The other party claims that J’s school had a student free day on Thursday 2 April and that J went with her to drop Z and I at their school. J then spent the day with the other party and she took him to a dentist appointment at Kings Meadows and then collected Z and I from their school at 3 pm. At 3:10 pm the other party said that she had taken J to St Giles respite house where he spent the night with other children and she picked him up at 9 am the following morning which was Good Friday.

22. The applicant states that on Friday 3 April he had cooked tea for the children and that the other party had left at 4 pm returning at 6:30 pm. Both parties agreed however that the applicant was away for Easter and the children were cared for by the other party.

    CONSIDERATION

23. When the many anomalies in the applicant’s dates were pointed out to him, the applicant said that he “could have got some of his dates wrong”. This is despite his contention that this information had been taken from his mobile phone records. The applicant has recorded numerous dates when he contends the other party had left the house later in the afternoon returning in the evening leaving the children in his care. The other party disputes these claims and maintains that she was always home to prepare the children’s meals and put them to bed.

24. The Tribunal does not accept the applicant’s evidence that the entries as set out in his letter accompanying his application for review, were sourced from his mobile phone. Instead The Tribunal considers that the document was prepared by the applicant to support his contention that he had a greater percentage of the care of the children than found by the decision maker.

25. It was the applicant’s evidence that he worked between 2 and 3 days each week when he would leave the house around 6 am and return either late morning or early afternoon. He confirmed that the other party took the 3 children to school and collected them but said that this was because she did not allow him to assist. It was the other party’s evidence that she was not employed outside of the home and that most of the home duties and childcare responsibilities were undertaken by her. She said that she was generally only absent from the home one evening each month and would otherwise be there to care for the children.

26. It was the other party’s evidence that she relied on her entries in a diary/calendar that she kept of significant appointments, for instance, medical, dental, school events, school holidays and so forth. She had also referred to photographs and recorded messages in her mobile phone and was able to confirm relevant dates. On the other hand, as demonstrated in the above discussion, much of the applicant’s evidence was unreliable and factually incorrect.

27. The Tribunal in its decision of 16 July 2015 concluded that the other party’s evidence was more detailed and consistent than that provided by the applicant. The applicant claimed that he was caring for the children whilst they slept in his bed at night. It was the other party’s evidence that she put the children to bed each night in their own beds and the applicant would get them up and move them in to his bed. The Tribunal (first review) referred to this evidence but did not consider that it changed the percentage of care above 34%. This Tribunal concurs with that finding.

28. This Tribunal concludes that the applicant has failed to produce any reliable evidence to justify a departure from the conclusion as set out in the decision under review and accordingly affirms the decision under review.

I certify that the preceding 28 (twenty eight) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

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Administrative Assistant

Dated

Date(s) of hearing	26 February 2016
Applicant	In person
Solicitors for the Respondent	Mr Brian Sparkes, Program Litigation and Review Branch
Other Party	In person