SFVY and Child Support Registrar (Child support second review)
[2022] AATA 721
•11 April 2022
SFVY and Child Support Registrar (Child support second review) [2022] AATA 721 (11 April 2022)
Division:GENERAL DIVISION
File Number: 2021/4076
Re:SFVY
APPLICANT
AndChild Support Registrar
RESPONDENT
AndYWMN
OTHER PARTY
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:11 April 2022
Place:Melbourne
1.The Decision under review is set aside and in substitution a determination is made as follows:
(a) As regards the period from 8 April to 7 June 2020 I make a determination of care of 100% in favour of SFVY and 0% in respect of YWMN
(b) As regards the period from 8 June to 8 October 2020 I make a determination of care of 70% in favour of SFVY and 30% in respect of YWMN
2.Such decision takes effect from 18 February 2021.
...............................[SDG]...................................
Dr Damien Cremean, 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—pattern of care—delegated care—relevance of financial support—relevance of emotional support—decision set aside.
LEGISLATION
Child Support (Registration and Collection) Act 1988 (Cth)
Child Support (Assessment) Act 1989 (Cth)Legislation
CASES
P v Child Support Registrar [2013] FCA 1312
Polec and Staker [2011] FMCA fam 1398
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
Introduction
The Applicant (SFVY), mother of minor child (“T”) applies to review a decision of the Social Services & Child Support Division (Tier 1) of this Tribunal dated 21 May 2021 setting aside a decision upon review dated 7 September 2020 and substituting a decision that from
8 April 2020 she had 81% and the Other Party (YWMN), T’s father had 19% of the care of T.
Tier 1 also decided not to make a determination under s 95N(2) of the Child Support (Registration and Collection) Act 1988 (Cth) (“1988 Act”), with the consequence that the date of effect of its decision was 18 February 2021 which was the date on which YWMN lodged his application with Tier 1.
SFVY and YWMN are the separated parents of T.
The dispute between SFVY and YWMN is (I agree with the Respondent) essentially a dispute between them as to the circumstances surrounding care provided to T during the period from 8 April 2020 to 8 October 2020 (“relevant period”). But in respect of that relevant period there are two distinct periods of time involved—one during school boarding time and one away from school.
Hearing
The hearing in this matter took place on 25 November 2021.
At the hearing both SFVY and YWMN were self-represented, and each gave affirmed evidence and cross-examined the other.
The Respondent was represented by Mr Cummings, lawyer of Sparke Helmore Lawyers. While he did ask some questions of the parties and make submissions, he adopted, quite properly, a position of neutrality.
After the hearing, both SFVY and YWMN lodged with the Tribunal closing or answering statements in summary of their positions.
Legislation
Section 49 of the Child Support (Assessment) Act 1989 (Cth) (“1989 Act”) provides:
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) both of the following apply:
(i) the determination of a responsible person’s percentage of care for a child that was made under this section or section 50 is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii) the Registrar is satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3) The percentage of care determined under subsection (2) must be 0%, unless section 51 applies in relation to the responsible person.
Section 50 of the 1989 Act provides:
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) both of the following apply:
(i) the determination of a responsible person’s percentage of care for a child that was made under section 49 or this section is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii) the Registrar is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3) The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4) Subsection (3) does not apply if section 51 applies in relation to the responsible person.
Section 54F of the 1989 Act provides:
(1) The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:
(a) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and
(b) the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and
(c) section 54G does not apply; and
(d) subsection (2) applies in relation to the individual.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2) This subsection applies in relation to a responsible person if:
(a) disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(b) section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(c) all of the following apply:
(i) section 51 did apply in relation to the responsible person;
(ii) the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;
(iii) an interim period does not currently apply in relation to the earlier determination;
(iv) the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note: For when section 51 does not apply, see section 53.
(3) The revocation of the determination takes effect at the end of:
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or
(b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i) the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii) the responsible person’s care of the child has reduced—the day before the change of care day.
Section 54G(1) of the 1989 Act provides:
(1) If:
(a) a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and
(b) the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c) a determination of the other responsible person’s percentage of care for the child has been made under section 50; and
(d) the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;
the Registrar must revoke both determinations.
Note: The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).
Section 54H of the 1989 Act provides:
(1) The Registrar may revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:
(a) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and
(b) the Registrar is satisfied that, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person’s percentage of care for the child, the other percentage would not be the same as the person’s existing percentage of care for the child; and
(c) sections 54F, 54FA and 54G do not apply; and
(d) subsection (2) applies in relation to the individual.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2) This subsection applies in relation to a responsible person if:
(a) disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(b) section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(c) all of the following apply:
(i) section 51 did apply in relation to the responsible person;
(ii) the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;
(iii) an interim period for the earlier determination does not currently apply;
(iv) the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note: For when section 51 does not apply, see section 53.
(3) The revocation of the determination takes effect at the end of:
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or
(b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i) the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii) the responsible person’s care of the child has reduced—the day before the change of care day.
Issues and Contentions
The principal issue concerns a period when T was in attendance at school.
It is correctly submitted by the Respondent that the Tribunal must determine:
(a)Whether the existing care determination in this matter must or should be revoked pursuant to ss 54F or 54G or 54H of the 1989 Act?
(b)
If so, what percentage of care should be determined for SFVY and YWMN under
ss 49 and/or 50 of the 1989 Act?
(c)If so, what should be the date of effect of the percentage of care determination?
Those questions must be determined in light of the evidence given at the hearing.
I shall set out that evidence in the context of considering these issues and not separately, as the dispute between the parties is quite well defined.
Consideration
As regards (a) above I agree with the Respondent that s 54G does not apply by virtue of
s 54G(1)(a) of the 1989 Act.
Further, I agree with the Respondent also that s 54F does not apply except as below.
It remains then to consider the application of s 54H relating to percentage of care.
In determining that question I am directed to the relevant period which, as I have noted, is
8 April 2020 to 8 October 2020.
Both SFVY and YWMN gave evidence in respect of the relevant period which includes both when T either was at boarding school or residing with SFVY.
As it also happens, it appears that 8 April 2020 is the date when the parents formally separated. As T has not resided with YWMN since that time, or had much or any contact with him, YWMN is “shattered” as he describes it. YWMN says that T even has been “refusing to acknowledge me”. SFVY counters however that T does not have contact with YWMN in particular following “a degrading and embarrassing email” sent to family and friends. It appears that the separation between SFVY and YWMN may have been a long time in the making, focusing particularly on the location of living arrangements and related issues. Ill-will between them is still quite evident.
YWMN has been self-employed in a business for some time but has faced various difficulties over time, including certain medical conditions for which he has had surgery (with more contemplated) and ramifications of COVID-19. SFVY has for a while been working part-time in a sales or sales-related position and had experience previously in the retail sector.
An initial care determination administratively made on 15 May 2020 recorded SFVY as having 100% care and YWMN having 0% care of T from 8 April 2020 with effect from
20 April 2020.
However, a second care determination made on the same date revoked that determination with effect from 25 April 2020, and determined that with effect from 26 April 2020 SFVY had 51% care and YWMN had 49% care. This second determination followed an approach by YWMN on 9 May 2020 notifying of a care change.
On 10 June 2020 SFVY objected to the second determination and commented that there was “no shared care arrangement” and that between 8 April 2020 and 7 June 2020 T was solely in her care.
The response of YWMN to this was that from 9 June 2020 until 8 September 2020 T was at boarding school and he would be paying for T’s care during this period.
On 17 August 2020 SFVY notified the Respondent that T would be living at home with her (due to COVID-19 restrictions). But on 19 August 2020 YWMN notified the Respondent that T would be spending six weeks at home–being two weeks with him and four weeks with SFVY. However, on 31 August 2020 SFVY notified the Respondent that there was no arrangement for T to spend time with YWMN.
There followed an erroneous allowance by an officer of the Respondent of the objection of SFVY but with no change made to care percentages set by the 15 May 2020 decision. It was issued on 7 September 2020 but in error stated the care percentages were 100% to SFVY and 0% to YWMN; whereas it should have been 50% to each from 26 April 2020, in accordance with SFVY’s notification to the respondent forwarded on 15 May 2020.
This was rectified (it should never have occurred) on 9 July 2020. But on 18 February 2021, as noted above, YWMN lodged an application with Tier 1 to review a care percentage decision listing the date of the relevant decision as 29 January 2021, which subsequently was clarified to mean 7 September 2020.
Then on 1 March 2021, YWMN notified the Respondent that as of 1 February 2021 care had changed because T was attending boarding school full time. But on 16 April 2021 a decision was made not to change existing care determinations so that 100% remained with SFVY and 0% remained with YWMN.
However, on 21 May 2021, Tier 1 made the decision under review by which, as noted, the care from 8 April 2020 became 81% to SFVY and 19% to YWMN; and that decision, also as noted, had effect from 18 February 2021.
Having regard to the matters she raises, SFVY argues that that decision should be set aside and that for the relevant period she should be awarded 100% care “and on an ongoing basis”.
YWMN’s position is, it appears, is that he contributed financially to T’s care during the part of the relevant period when T was at boarding school. He says his “issue is not with the payments I made when my son was under [SFVY’s] care, but when he is not under her care as he is a full-time boarding student”. During that latter time, he says payment by him of child support is “unwarranted”.
As regards SFVY’s reference to “an ongoing basis” I am informed by the Respondent that any decision I make in this matter will only apply until 3 December 2020 because a decision was made on 25 October 2021 assigning 100% care to SFVY from
4 December 2020 with effect from 1 October 2021.
To examine what is the correct or preferable decision to be made in this case I have had to consider various items of evidence and to grapple with the unnecessarily complicated provisions of the 1989 Act which clearly needs to be re-drafted.
It would be an understatement to describe the 1989 Act as a “mess”. Any member of the public without legal training has barely any hope of understanding what Parliament’s intention has been in various areas of child support under the 1989 Act.
In support of her position, SFVY refers to various considerations including daily contact with T while at boarding school; being first point of contact for T in the event of any mishaps at school; payment of school fees out of a joint account; T staying with her when not at school between 8 April and 7 June 2020; T enjoying company of friends at her (rented) home; and medical or dental care.
This list is not exhaustive, and I have not overlooked considerations referred to by YWMN, including his payment of counselling.
I mention also, of course, the various documents which have been lodged with the Tribunal by SFVY, showing times in which she recorded T was staying with her and school-related payments etc, including those lodged in July, August and September 2021 and those lodged by YWMN in October 2021.
In my view, the provision of care for the purpose of determining percentage of care is primarily a factual issue—what actual care was provided by each party —but is also an issue of responsibility— that is, which party had responsibility for care on the facts of the matter. In some cases, responsibility may outweigh actual care but in others actual care my outweigh responsibility. Each case will depend on its facts. There is no hard and fast rule. But it is to those facts and to the circumstances of the particular case that reference must be made, as was submitted by the Respondent: P v Child Support Registrar [2013] FCA 1312 at [107] per Wigney J who points out (ibid) that under the 1989 Act “care” is not an expression defined.
In this matter I am satisfied that a percentage of care of 100% should be attributed to SFVY during the period T was living with her—from 8 April 2020 to 7 June 2020. I did not understand YWMN to be disputing this.
During that time SFVY had full actual care of T, as well as responsibility for T.
YWMN is disputing the time when T was not with SFVY and was away at boarding school, as I find was the case, namely, 9 June 2020 to 8 September 2020 (“boarding school period”).
During the boarding school period, in my view there was mixed actual care and responsibility shared between SFVY and YWMN.
However, in my view on the evidence, care was not shared equally, and I differ from Tier 1 in its ruling.
In my view of the evidence, during the boarding school period, the percentages of care were 70% to SFVY and 30% to YWMN.
I take that view because I regard SFVY as T’s first point of contact for the school; and also, I place importance on her daily contact with him and her attending to his medical or dental needs. As well, I take into account YWMN’s lack of contact with T – however this may have come about. It is clear to me that SFVY was, throughout the boarding school period, principal provider of emotional support to T; and at one point in the relevant period was the only provider of emotional support to him.
In other words, during this time, I regard SFVY as a much more dominant figure or force in T’s life as regards caring status than YWMN.
At the same time, I consider allowance must be made for the contribution made by YWMN to payment of school fees in respect of T, and I note that some or much of the finances available to SFVY to spend on care for T have come out of joint funds, meaning both parents were actually contributing financially.
I make findings of fact to give effect to the above, and as to the matters set out in particular in paras 44-51. These factual findings underly an overall finding that, in light of the evidence given to me, percentages of care have changed during the relevant period. I have had regard to the matters addressed in Polec and Staker [2011] FMCA fam 1398, to which I was referred. I must indicate in that regard that I found both SFVY and YWMN to be truthful witnesses in matters of concern to me.
DECISION
As a result, I am satisfied that under the 1989 Act, in particular s 54H, the determination made on 15 May 2020 must be revoked.
Acting under the provisions of the 1989 Act, including s 50, I am satisfied a different percentage of care determination must be made in respect of the relevant period—being the care period of concern to me in this proceeding. From 8 April 2020 until 7 June 2020, I make a determination of 100% in favour of SFVY and 0% in respect of YWMN. And from
8 June 2020 until 8 October 2020, I make a determination of 70% in favour of SFVY and 30% in respect of YWMN.
I am required also to make a determination as to the date of effect of the percentage of care determination I have now made.
I have considered the application of s 95N(2) of the 1988 Act, and I am unable to identify any facts or factors which would warrant me departing from the aspect of the decision of Tier 1 which relates to its date of effect; so that the determination made by me takes effect from 18 February 2021.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of
Dr Damien Cremean, Senior Member.................................[SDG].......................................
Associate
Dated: 11 April 2022
Date(s) of hearing: 25 November 2021 Applicant: By videoconference Advocate for the Respondent: S Cummings Solicitors for the Respondent: Sparke Helmore Other Party: By videoconference
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Appeal
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Jurisdiction
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Statutory Construction
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Procedural Fairness
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