THE FATHER and CHILD SUPPORT REGISTRAR THE MOTHER JOINED PARTY
[2012] AATA 396
•28 June 2012
[2012] AATA 396
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0283
Re
THE FATHER
APPLICANT
And
CHILD SUPPORT REGISTRAR
RESPONDENT
And
THE MOTHER
JOINED PARTY
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 28 June 2012 Place Sydney
The Tribunal varies the decision under review, being the SSAT decision, and decides that the determination of percentage of care for Master C, is 50% by each parent, effective 6 June 2011.
..............[sgd]..........................................................
Ms G Ettinger, 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 – shared care – couple have three children – Federal Magistrates Court order specifying 50/50 care of all the children including the child, Master C, whose care is in dispute – by agreement of the parents, Master C is a weekly boarder at his school – Court Order acknowledges the father and the father’s mother pay the child’s school and boarding fees – Applicant father argues he has more care of Master C than the mother because he pays the fees – decision under review varied.
Legislation
Child Support (Assessment) Act 1989, ss 50, 54A, 54BCases
Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959Secondary Materials
Child Support Agency - The Guide, Part 2.2.1
REASONS FOR DECISION
Ms G Ettinger, Senior Member
28 June 2012
SUMMARY
The Applicant in this matter is the father of three children, the oldest of whom, Master C, is the subject of the shared care arrangement in dispute before the Tribunal. The mother is the party joined in the matter. Both parents appeared at the Tribunal hearing self-represented, and both gave oral evidence. The Child Support Agency was represented by its solicitor, Ms E Bell.
The parties signed Consent Orders, and on 6 June 2011 the Federal Magistrates Court gave effect to those. The Orders specified equal shared parental responsibility between the parents of the three children of the marriage (including Master C). On the evidence, I am satisfied that the Court Orders have been complied with.
The father’s principal argument before me was that parental responsibility did not necessarily equate to care, and that pursuant to the Child Support Agency: The Guide (the Guide), a document issued by the Agency that assists decision-makers, at part 2.1.1, he provides more care than the mother because he alone pays the school and boarding fees for Master C.
I have varied the decision under review. My reasons follow.
LEGISLATIVE ENVIRONMENT
The relevant legislation in this matter is the Child Support (Assessment Act) 1989, in particular sections 50, 54A, 54B and 54F.
There is also the Guide which provides assistance in making determinations. I am not bound to apply policy guidelines of the kind referred to in the Guide (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60), but would do so unless there are compelling reasons in a particular case to not do so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416 at 417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
ISSUE IN DISPUTE
The issues to be decided are:
(a)the correct or preferable decision for the Tribunal to make, in consideration of whether the finding of the Social Security Appeals Tribunal, (the SSAT), that the Applicant father of Master C, has 50% care of him should be affirmed, varied or set aside;
(b)the commencement date for any revised percentage of care the father has of Master C following the Orders of the Federal Magistrates Court of 6 June 2011.
BACKGROUND
The Applicant father, and the party joined, the mother, in these proceedings are the parents of three children. The dispute regarding the percentage of care relates to Master C, who, with the consent of both parents, has been a weekly boarder at his school since the beginning of 2011.
The shared care of Master C, aged 13, held by the SSAT to be 50/50 between the parents, is the matter from which the Applicant appeals. A Consent Order made by the parents and given effect by the Federal Magistrates Court dated 6 June 2011, providing for equal shared parental responsibility is in place. Prior to that, during 2010, the father had been held by the Child Support Agency to have 86% care of the boy.
The father argued that equal shared parental responsibility does not equate to care, and that care is not defined in the Act. He submitted that because he pays the school fees and other incidentals for Master C when he is in his care, which he says includes the time when the boy is in boarding school, he should be assessed to have a higher percentage of care for him, being 86%.
It is not in dispute that the father contacted the Child Support Registrar on 7 June 2011 to notify a change in care for Master C following the Orders of the Federal Magistrates Court made on 6 June 2011. The file note of the Registrar recording the father’s notification of the Court Order states as follows: (father) rang through to advise he was in court yesterday and has been granted 50% care via a court order. … He said he is solely responsible for his son financially while at boarding school and the care % is only to reflect for the periods of time when he is on school holidays as that is the time when shared care occurs…. (T6/29).
A file note of the Child Support Agency dated 29 July 2011 indicates that: (Mother) … called … (Mother) advised of court orders of shared care. (Mother) said the court orders say that both parents equally responsible to pay school fee’s (sic) and that these are not to be considered as child support. Court order starts 06/06/2011 (T27/89).
Following the notification, the Child Support Registrar made a decision on 12 August 2011 accepting the change of care to be 50/50 between the parents on the basis of the Orders of the Court, and notified both parents. The father disputed that decision, stating that he was fully responsible for the care of Master C as he pays the school fees and incidentals in relation to his attendance at boarding school, and sought internal review of the decision, which was affirmed. He then appealed to the SSAT, and has now appealed to this Tribunal.
DISCUSSION AND CONCLUSIONS
Percentage of Care
In order to make the correct or preferable decision, I must take into account the evidence, submissions, legislation, the Guide, and the Orders of the Federal Magistrates Court.
At the commencement of the hearing, and after explaining how the matter would be conducted, I gave the parties the opportunity of asking any questions they had, or topics on which they required clarification. The Applicant asked a number of questions which I answered. His main contention was that he had not been afforded procedural fairness, and that the decision of the SSAT was wrong. I explained that the Tribunal hearing is not a review of each paragraph of the SSAT decision, and that it is a hearing de novo, a completely new and independent look at the matter with a consideration of any new evidence which the parties might provide to the Tribunal. Before commencing the taking of evidence, I adjourned for the Associate to assist the Applicant review all the documents. Following that, I commenced the hearing, and the parties gave their evidence, and made their submissions.
In coming to a decision, I am mindful that the Orders of the Federal Magistrates Court of 6 June 2011 are Consent Orders, and detail the roles of both parents in regard to the three children of the marriage. The Court Orders have specified equal shared parental responsibility for the three children.
I am mindful of the mother’s evidence that she did not approve wholeheartedly of the arrangements for the children, to which she however agreed, in particular that Master C be a boarder at school from the beginning of 2011. The mother also gave evidence of other financial arrangements during the marriage which had taken place before the separation, including the scholarship fund to which she had contributed during the marriage. She also gave evidence of a financial settlement between the parties and her low capacity to earn. Whilst of interest as background to the separation, those arrangements do not impact upon the decision I have to make in this matter.
The Consent Orders to which the Federal Magistrates Court gave effect on 6 June 2011, which include terms of a financial settlement, are not quoted in full below, but a summary, as relevant to this application, follows:
(a)The Husband (father) and the Wife (mother) have equal shared parental responsibility for the three children who are named in the Court Order, and, for reasons of privacy, not here. That equal shared parental responsibility has been held to include but not be limited to schools the children attend, religious instruction, medical treatment, and sporting and other activities;
(b)During school terms the children spend alternate weeks with the parents;
(c)During school holidays, the children spend one half of the time with each parent;
(d)The Court noted that Master C was enrolled at boarding school at the time the Consent Orders were made, and that another child, Master A would be commencing as a boarder in 2013;
(e)Paragraph 13 (quoted): That the Husband and/or the Husband’s mother AP will be solely responsible for the payment of any and all school fees and expenses at [the school] and that any such payments will not be claimed by the Husband as a [sic] non-agency child support payments;
(f)That each of the parents ensure that the children are adequately supplied with all sporting equipment, uniforms and footwear, school uniforms, school footwear, school books and equipment that they will require during such time as they are living with the other parent; and,
(g)That the Husband and the Wife do all acts and things and sign all documents necessary to authorise any school attended by the children to release to both Husband and the Wife copies of all school newsletters, notes, school reports, and school photographs.
I am satisfied from the evidence that the terms of the Consent Orders have been complied with. I note the evidence of both parents that during school holidays the children spend one half of the time with each parent, and that Master C spends the school week as a weekly boarder, and alternate weekends, including the weekend nights with each of his parents. Whilst the exact amounts of money spent on the child by each parent for incidental expenses such as outings whilst in the care of each on weekends and during holidays was not detailed, I am satisfied that each takes care of those expenses, including entertainment, while the child is in the care of that parent.
As to the school and boarding fees for Master C; the Applicant claimed at the hearing that he pays the school fees for Master C in full. He tendered two documents (as Exhibit A4) in support of that. One folio of Exhibit A4 is a letter dated 23 March 2012 to the Applicant from Master C’s school, detailing, at his request, payments received by the school during 2011 and to 23 March 2012. The letter records four payments totalling $34,954.50 made by the Applicant’s mother and one of $12,225 made by the Applicant, in cash. The second folio of Exhibit A4 is a statement dated 27 March 2012, on letterhead bearing the family’s surname, signed by Ms AP, the father’s mother, in clarification, she says, of the school’s letter. She states in that letter that she loans the school fees to the Applicant, that she delivers the fees to the school on his behalf, and that she expects to be repaid in full once her son’s financial status improves.
Ms AP did not give evidence, and her statement was not a sworn statement. However, I am satisfied that even if Ms AP pays for part or all of the school fees for Master C, that was envisaged by Paragraph 13 of the Consent Orders as follows:
That the Husband and/or the Husband’s mother AP will be solely responsible for the payment of any and all school fees and expenses at [the school] and that any such payments will not be claimed by the Husband as a [sic] non-agency child support payments.
As the payment of school and boarding fees for Master C is embodied in paragraph 13 of the Orders of the Court, and there is no evidence to rebut that the fees for Master C were paid as required, the evidence of the father and paternal grandmother regarding payment and repayment to each other did not influence my deliberations.
I move then to consider care. As correctly submitted by the Applicant, care of the child is not defined in the Act. He submitted that because he pays the school and boarding fees for Master C, he has care of the child for those nights, which according to him equates to 86% of care rather than the 50%, as held by the Respondent and the SSAT.
I am mindful that percentage of care is defined in the Guide at 2.2.1 as follows:
Percentage of Care
The percentage of care is the mechanism in the child support assessment formula 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 inappropriate.
Example
One parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.
Where parents are separated but are living in the same house, CSA will determine each parent's percentage of care based upon the care that is actually occurring for the child. If CSA is not able to determine a care percentage based upon the actual care, CSA will generally accept that the parents share the care of their children equally. In this case, CSA 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.
Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time.
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 baby sitter, 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 is 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.
A parent or non–parent carer's percentage of care for a child will be used to determine the parent's or non–parent carer's cost percentage for the child. The percentage of care will be rounded to a whole percentage (section 48(3) of the unamended Act; section 54D of the amended Act). See Chapter 2.4.5 for more information on these percentages in the child support formula.
The father argued that I was bound by the Guide, and emphasised that at 2.2.1, the Guide states relevantly as follows: A person can provide care for a child who is at boarding school, in hospital or in separate accommodation. He emphasised that he alone has care of Master C while he resides at boarding school, because he pays the fees. He said he felt aggrieved that the SSAT held that neither parent has actual care of Master C for the periods when he is at boarding school. He submitted that were this to be correct, it would mean that Master C did not have care for 201 nights a year, and that, that, could not be right. He submitted that the care arrangements changed in January 2011 when Master C commenced at boarding school, and he was paying the tuition and boarding fees from that time. The Applicant submitted that in April 2011, when the Child Support Registrar realised that the mother was not contributing to the boarding fees, it altered its decision regarding care of the Master C, changing it to 86% for the father.
I note that percentage of care is calculated pursuant to section 50 of the Act which follows as relevant:
50 Determination of percentage of care—responsible person has had etc. a pattern of care for a child
(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) the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and
(ii) 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 or 52 applies in relation to the responsible person.
Sections 54A and 54B of the Act provide for the way in which to work out actual care and extent of care of a child for a given period, including taking into account the number of nights of care a parent gives. I am mindful, that as relevant, section 54A of the Act states:
54A Working out actual care, and extent of care, of a child
(1) The actual care of a 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 that the child was, or is likely to be, in the care of the person during the care period.
(2) The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.
(4) This section does not limit section 50, 51, 52 or 54.
54B Days to which the percentage of care applies if sections 51 and 52 did not apply in relation to a responsible person
(1) If:
(a) a determination of a responsible person’s percentage of care for a child is made under section 49 or 50; and
(b) sections 51 and 52 did not apply in relation to the responsible person;
the percentage of care applies to each day in a child support period on and from the application day unless a revocation of the determination under Subdivision C of this Division takes effect.
(2) The application day is:
(a) if subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination—the day on which the application referred to in that subparagraph is made; or
(b) if subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination—the day referred to in that subparagraph; or
(c) if paragraph 49(1)(b) or 50(1)(b) applies in relation to the determination:
(i) in a case where the revocation of the determination referred to in subparagraph 49(1)(b)(i) or 50(1)(b)(i) takes effect at the beginning of the day referred to in paragraph 54G(2)(a)—that day; or
(ii) otherwise—the day that begins immediately after the revocation of the determination referred to in that subparagraph takes effect.
I have noted the above, and refer also to the case of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 that in determining whether, and to what extent a person has care of a child for purposes of the Act, the following questions may be posed.
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 and the Child Support (Registration and Collection) Act, 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 extracurricular 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?
Those questions are also posed in the Guide at 2.2.1 under the heading Determining whether care exists.
In Master C’s case, I am satisfied from the evidence, that the Applicant father and the paternal grandmother pay the boarding school fees, and certain incidentals, and provide that financial support. That was known, and agreed to by the parents on 6 June 2011. It is embodied in the Orders of the Federal Magistrates Court of 6 June 2011 which made Orders directing that the parents of Master C have equal shared responsibility for him (and for the other children). I am mindful also taking into account the Guide at 2.2.1 in an example given in relation to the calculation of the Percentage of Care (and under that heading), that: A person can provide care for a child who is at boarding school, in hospital or in separate accommodation… 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. The evidence before me is that both parents are involved in decision making regarding Master C during the time he spends at boarding school, and are consulted in that regard. Accordingly, notwithstanding the father and the paternal grandmother pay the fees, and the father sees Master C on weekends during rugby games because he coaches rugby for the school, I find that the care during the boarding school periods is shared between the parents.
In regard to the questions posed by Polec & Staker and the Guide (as noted above), I am satisfied from the evidence that questions a), b) and c) which regard meeting costs and making arrangements for the child are shared between the parents. Clause d) can be construed as the father meeting the financial support, the boarding school fees for the child as agreed between the parents and endorsed by the Court Orders, although the cost of incidentals and extracurricular activities are shared between the parents. I note that clauses e) and f) are not relevant in this case.
I have already noted above that the evidence before me indicates that the Orders of the Court have been complied with, i.e. Master C spends alternate weekends (including nights) with each parent, and that over the school holidays, the children, (including Master C), spend one half of the time with each parent.
The Court also stated that the equal shared parental responsibility is intended to include, but not be limited to schools the children attend, religious instruction, medical treatment, and sporting and other activities. The Court Orders also mention that each of the parents ensure that the children are adequately supplied with all sporting equipment, uniforms and footwear, school uniforms, school footwear, school books and equipment that they will require during such time as they are living with the other parent. I have no evidence that these clauses are not being complied with.
I have considered all the evidence regarding the care of Master C, and note the Guide at 2.2.1 in regard to the calculation of care which may include periods when a child is at boarding school.
I am satisfied that I am not bound to apply policy guidelines of the kind referred to in the Guide (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409), but I would do so unless there are compelling reasons in a particular case to not do so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416 at 417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
In this case, there are Consent Orders dated 6 June 2011 in place, as agreed to by the parents of Master C. Those Orders of the Federal Magistrates Court record at paragraph 13, that the Applicant and/or his mother are solely responsible for the payment of all and any school fees for Master C, and that any such payments will not be claimed by the father as non-agency child support payments.
I am satisfied that the Consent Orders of 6 June 2011 apply, and that the parents of Master C have equal shared parental responsibility for him. I am satisfied from the evidence that the Consent Orders are being complied with. That includes, as specified by the Orders, shared care for holidays, and weekends, and that each parent spends money on his behalf in extracurricular activities when the child is with that parent.
I am satisfied that the nights Master C spends at boarding school can be considered to be shared between the parents although I am mindful the SSAT commented that the Consent Orders are silent as to which parent is considered to have care of Master C for the nights he spends at school.
I am satisfied from the evidence that the Applicant, father of Master C, has 50% care of him, and that the mother also has 50% care. That is the correct and preferable decision for the Tribunal to make. What remains is to decide from what date that 50% care commenced.
Date from Which the 50% Care by Each Parent Commenced
I have already noted above that the Applicant father of Master C notified the Child Support Registrar of the Court Orders on 7 June 2011, and that the mother did so on 29 July 2011. Section 54F of the Act provides that a determination must be revoked if there is change to the responsible person’s cost percentage.
54F Determination must be revoked if there is a change to the responsible person’s cost percentage
...
(2) The revocation of the determination takes effect at the end of:
(a) if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:
…
(ii) otherwise—the day before that change of care day; or
…
(c) otherwise—the day before the day on which the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter.
Accordingly the Child Support Registrar revoked the existing determination, and made a new determination with the percentage of care as 50/50 for each parent commencing on 6 June 2011, the date of the Court Orders.
The SSAT held, based on the mother’s notification to the Child Support Registrar on 29 July 2011, that the 50/50 percentage of care of each parent for Master C commenced on 28 July 2011.
I find that the new determination of percentage of care takes effect on 6 June 2011 based on the notification by the father dated 7 June 2011.
DECISION
The Tribunal varies the decision under review, being the SSAT decision, and decides that the determination of percentage of care for Master C, is 50% by each parent, effective 6 June 2011.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
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Associate
Dated 28 June 2012
Date(s) of hearing 17 May 2012 Applicant In person Solicitors for the Respondent Ms E Bell, DHS Legal Services Joined Party In person
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