The Mother and Child Support Registrar The Father JOINED PARTY Ms G Ettinger, Senior Member 15 May 2015 Sydney
[2015] AATA 330
•15 May 2015
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2014/3817
General Administrative Division )
Re: The Mother
Applicant
And: Child Support Registrar
RespondentAnd: The Father
Other PartyDIRECTION
TRIBUNAL: Ms G Ettinger, Senior Member
DATE: 22 May 2015
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- Remove the word “shared” from page 1 and paragraphs 4, 36, 51 and 52.
..............[sgd]................................................
Ms G Ettinger
Senior Member[2015] AATA 330
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3817
Re
The Mother
APPLICANT
And
Child Support Registrar
RESPONDENT
And
The Father
JOINED PARTY
DECISION:
Tribunal Ms G Ettinger, Senior Member
Date 15 May 2015 Place Sydney The Tribunal varies the decision of the SSAT to find that for the period commencing 5 September 2013 the shared care for the child was 69% for the mother, and 31% for the father.
.....................[sgd]...................................................
Ms G Ettinger, Senior Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
Catchwords
Child support – shared care – dispute over findings of the Child Support Agency and SSAT – appeal by the mother to the AAT regarding the findings of the SSAT – decision under review varied.
Legislation
Child Support (Assessment) Act 1989 ss 49,50, 54A
Child Support (Registrations and Collection) Act 1988 s 80A
Cases
Parent A and Child Support Registrar and Anor [2014] AATA 199
Polec & Staker & Anor [2011] FMCAfam 959
Secondary Materials
The Guide to Social Policy Law- Child Support Guide
REASONS FOR DECISION
Ms G Ettinger, Senior Member
15 May 2015
SUMMARY
The Applicant, Ms PA, and the Joined Party, Mr SB, have been married since 1999, and have a daughter, Ms D, now aged 14. Ms PA also has an adult son from a previous marriage, Mr G, who studies at university. The matter before me is an appeal by Ms PA, from a decision of the Social Security Appeals Tribunal (SSAT) dated 23 June 2014. The SSAT, to whom Mr SB had appealed, varied the decision of the Child Support Agency, and held that from 5 September 2013, the care percentage to be used in the child support assessment should be 57% for the mother, and 43% for the father.
Ms PA was represented at this Tribunal by Ms R Winfield of counsel, while Mr SB appeared unrepresented. The Child Support Agency was represented by Mr McLaren, a solicitor of the Agency. Much of Mr SB’s evidence, purported cross-examination of the mother, and submissions, were directed by his disagreement with the amount of care of the child which had been used in the child support assessment.
There is an Apprehended Domestic Violence Order (ADVO) dated 14 April 2014 in place, which prohibits the father from entering premises where Ms PA and their daughter live, and specifies other conditions such as a prohibition on molesting, harassing or otherwise interfering with the protected persons. Mr SB is angry at the situation in which he finds himself.
I have found from the evidence that from 5 September 2013, the date of Ms PA’s application for a child support assessment, to 10 August 2014 the shared care for the child was 69% for the mother, and 31% for the father.
I am satisfied that the commencement date is 5 September 2013. Reasons for this and my decision are discussed in the paragraphs below.
ISSUES IN DISPUTE
The issue for the Tribunal is the respective care percentages in respect of child support assessments in regard to the child of Ms PA and Mr SB. The Tribunal must also decide the correct start date.
RELEVANT LEGISLATION
The relevant legislation in this matter is the Child Support (Assessment) Act 1989 (Assessment Act), and the Child Support (Registrations and Collection) Act 1988 (Registration Act). The Guide to Social Policy Law- Child Support Guide (the Guide) is also relevant.
Pursuant to sections 49 and 50 of the Assessment Act, the Tribunal can make a determination in relation to the care percentage that a responsible person has, in respect of a child.
Section 49 of the Assessment Act also empowers the Tribunal to determine care with reference to a care arrangement if no pattern of care can be established.
Section 54A(a) of the Assessment Act deals with the calculation of actual care. It provides for the Registrar, and the Tribunal standing in his shoes, to work out actual care during the care period by basing it on the number of nights that the decision maker is satisfied that the child was, or is likely to be, in the care of the person during the care period.
Chapter 2.2 of the Guide deals with the calculation of care percentages.
Pursuant to section 80A of the Registration Act, a carer or liable parent may lodge an objection to a care percentage decision. The Registrar must then decide whether to allow or disallow the objection. The decision may be revoked pursuant to sections 54F, 54G and 54H of the Assessment Act. If a decision is revoked, a new determination can be made pursuant to section 49 or 50 of the Assessment Act.
BACKGROUND
As already stated above, Ms PA and Mr SB were married in 1999, and have a child Ms D about whom this matter revolves. The marriage encountered difficulties, and Mr SB left the family home on 14 June 2013.
Ms PA alleged that Mr SB, the child’s father, had assaulted her. An interim ADVO was issued on 16 August 2013, protecting the mother and child. On the same day, a handwritten agreement was made between the parents, providing for the father to telephone the child for a maximum of 30 minutes each week outside of school hours. It also provided that the father could collect the child at 7:00 pm on Fridays, and return her on Sunday night after she had attended her classes. The father was not to enter the premises where the mother and child lived, and was to contact the mother by text message only, in relation to parenting issues and access.
On 5 September 2013, the child’s mother applied for a child support assessment from 14 June 2013, asserting that she had 100% care of the child from that date. The Registrar accepted her claim as reflected in a child support assessment dated 11 October 2013.
Mr SB notified the Registrar on 30 October 2013, claiming he was looking after his daughter for more than the minimum required assessment one by the child support officer, and providing financial assistance for her.
On 4 November 2013, Mr SB notified the Registrar that he was objecting to the child support decision for care, and objecting to the assessment of 11 October 2013. On 6 November, Mr SB informed the Registrar that he had overnight care for the child three nights a week plus 13 additional nights in October 2013.
On 27 November 2013 the Registrar revoked the percentage of care decision made on 11 October 2013, and pursuant to section 50 of the Assessment Act, made a new care percentage determination from 5 September 2013 assessing the mother at 72% of care and the father at 28%.
Mr SB objected to the assessment on 4 February 2014. That was more than the 28 days permitted for him to appeal the decision. His explanation, as recorded by an officer of the Child Support Agency at T28/99, was that Mr SB had spoken to a CSO in regard to his concerns for care of the child, stating that his care of her should commence on 17 August 2013. The officer also recorded that Mr SB told him the CSO was on leave, that he (Mr SB), was told he could object to the assessment online. Further it was recorded that these communications occurred over the holiday season. The officer also recorded that Mr SB had not explained any special circumstances which might have prevented him from objecting to the assessment within the required 28 days.
On 3 April 2014, the Registrar disallowed Mr SB’s objection. He then exercised his right to appeal to the SSAT, which decided that from 5 September 2013, the care percentage to be used in the child support assessment should be 57% for the mother, and 43% for the father. Ms PA has appealed that decision to this Tribunal.
Both parents provided schedules of times when they say the child was in the care of each. Typically the evidence of each parent conflicted with the other, and the schedules they have provided cannot be reconciled precisely.
A final ADVO was issued on 7 April 2014. Even though the agreement regarding access was not appended, the parties continued to observe parts of the agreement made on 16 August 2013, although it seems from the evidence that Mr SB unilaterally decided from approximately April 2014 that he would also keep the child overnight on Sundays, and deliver her back home before school on Monday mornings. He told me that that was the child’s wish.
THE PROCEDURAL FAIRNESS ISSUE
As the father was self-represented, I explained at the commencement of the hearing how I would conduct it. Part of that explanation consisted of informing him that he could cross-examine the mother, and any of her witnesses. I also explained that at the conclusion of the evidence, I would adjourn for some time in order for the parties to prepare their closing submissions. Mr SB, who is tertiary educated, and an engineer, and speaks fluent English, indicated he had understood me. There was also a Tamil interpreter in the room whom he could have consulted if he had not understood. I am mindful at all times that he is not a lawyer, and appeared unrepresented.
The evidence concluded before the luncheon adjournment, and I again explained that what the parties, in particular Mr SB, could do in the hour adjournment, was to make notes so that they could make their closing submissions when the Tribunal resumed. Again Mr SB indicated he understood.
Mr SB had been quite loquacious during the hearing. He raised many topics, both when cross-examining and at other times, which did not directly impact upon what I had to decide. I reminded him what it was I had to decide, which was the respective care percentages in respect of child support assessments in regard to the child of the marriage.
When the hearing resumed after the luncheon adjournment, Mr SB expressed displeasure that Ms Winfield drew to my attention that his witness statements (in the section 37 documents), appeared to have been prepared according to a template. He objected to her submission that little weight should accordingly be given to their content. I noted Ms Winfield’s submission that whilst the referees had written about the good care Mr SB provided for the child, they did not live close by, and hence were not able to observe what care he provided. Mr SB agreed he had assisted the referees prepare their statements.
Mr SB then submitted that he wanted further time to prepare his case, consult lawyers, and provide oral evidence from his witnesses. I reminded him that the matter was set down for one day only, that the evidence had concluded, and that the statements of his witnesses were before me in the section 37 documents. I was also satisfied that he had had ample opportunity before the Tribunal hearing to consult his lawyers who are acting for him in the family law matters now before the Family Court, or indeed any other lawyers.
I note further that when the hearing resumed after the luncheon adjournment, Mr SB had not prepared any notes to assist with his closing submissions. I adjourned for a further ten minutes to give him the opportunity of considering what submissions he wanted to make. Following that adjournment, Mr SB then made submissions:
·emphasising that he took good care of his daughter;
·referring to his referee statements;
·stating that he had his daughter stay overnight commencing in October 2013;
·that the child stayed with him and his brother’s family over the period 19 October – 31 October 2013 when the mother was overseas, and
·that he cares for his daughter three nights per week.
THE START DATE
The issue of the start date arose in the SSAT and at this Tribunal hearing. I must accordingly determine the start date, noting that Ms PA first claimed child support on 5 September 2013. The Child Support Agency accepted Ms PA as having 100% care of the child from that date, reflected in a child support assessment dated 11 October 2013.
The evidence before me indicates Mr SB notified the Registrar on 30 October 2013, claiming he was looking after his daughter, and providing financial assistance for her. On 4 November 2013, Mr SB notified the Registrar that he was objecting to the child support decision for care, and objecting to the assessment of 11 October 2013. On 6 November 2013, Mr SB informed the Registrar that he had overnight care for the child three nights a week plus 13 additional nights in October 2013.
On 27 November 2013 the Registrar revoked the percentage of care decision made on 11 October 2013, and pursuant to section 50 of the Assessment Act, made a new care percentage determination from 5 September 2013 assessing the mother at 72% of care and the father at 28%.
Mr SB objected to the assessment on 4 February 2014. That was more than the 28 days permitted for him to appeal the decision. Mr SB’s explanation, as recorded by an officer of the Child Support Agency at T28/99, was that he had spoken to a CSO in regard to his concerns for the calculation of care of the child, stating that his care of her should commence on 17 August 2013. The officer also recorded Mr SB stating that the CSO was on leave, that he was told he could object to the assessment online, and that these communications occurred over the holiday season. The officer also recorded that Mr SB had not explained any special circumstances which might have prevented him from objecting to the assessment within the required 28 days.
On 3 April 2014, the Registrar disallowed Mr B’s objection. He then exercised his right to appeal to the SSAT, which decided that from 5 September 2013, the care percentage to be used in the child support assessment should be 57% for the mother, and 43% for the father. Ms PA has appealed that decision to this Tribunal.
Whilst the evidence of the two parents is in conflict over the nights each cared for the child since their separation in June 2013, I am satisfied that consideration of the nights in care provides an appropriate method of calculating the percentage of care each gives to the child. I have to calculate the actual nights of care each parent provides for the child, and the start date. The evidence regarding those nights of care appears to be different in each of the schedules provided to the Tribunal.
However, I have accepted from the evidence that Mr SB commenced having the child stay at his place regularly two nights a week from 11 October 2013. I have also mentioned above the times when this was varied, such as when Ms PA went overseas from 19 October to 31 October 2013. For that period, I am satisfied that Mr SB had care of the child at his home, and at his brother’s residence. I am also satisfied from the evidence that it was not until April 2014 that Mr SB commenced having the child stay three nights per week. It was not in dispute, and I accept that Mr SB was away two weekends in May 2014, during which time Ms PA had the overnight weekend care of the child.
Accordingly I am satisfied from the evidence that the shared care arrangement for the child was 69% for the mother, and 31% for the father and that the commencement date was on 5 September 2013.
THE TRIBUNAL’S DELIBERATIONS AND FINDINGS
As indicated above, the issue for the Tribunal to decide is the care percentage in respect of child support assessments in regard to the child of Ms PA and Mr SB from 5 September 2013. I note that pursuant to Parent A and Child Support Registrar and Anor [2014] AATA 199, care is multi faceted. The Tribunal there indicated as follows at [22]:
For the purposes of the Assessment Act, ‘care’ is multi-faceted. It does not merely refer to the provision of accommodation or financial support for a child, but it carries a broader meaning that may include making arrangements for and decisions about the welfare of a child. In this context, ‘care’ may include looking after, dealing with, providing for, protecting, guiding and supporting a child. The manner and extent to which a person cares for and meets the needs of a child, by providing financial and other support for example, must be considered. This may be more difficult in the case of an older child, where the child is to some degree independent and provides for their own needs to a significant extent. That is so in the present case – during the period I must consider, C was over 16, in part-time employment, providing for some of her needs and exerting her independence from her mother, who had cared for her exclusively over preceding years.
The oft quoted case of Polec & Staker & Anor [2011] FMCAfam 959 provides certain indicia for consideration when deciding to what extent a person has care of a child for the purposes of the Assessment Act and the Child Support Act. The evidence in the case before me indicates that the parents regularly shared driving the child to the station, and/or to school, and gave financial support for her.
As already noted, whilst the evidence of the two parents is in conflict over the nights each cared for the child since their separation in June 2013, I am satisfied that consideration of the nights in care provides an appropriate method of calculating the percentages.
In coming to a decision, I have considered the following dates relevant.
·14 June 2013 – Mr SB moves out of the family home;
·August 2013 – father permitted to see the child during the day;
·16 August 2013 – interim ADVO – modified by handwritten agreement between the parents on the same date; I have no evidence of any further agreement regarding the access; no agreement regarding access was appended to the final ADVO dated 7 April 2014;
·5 or perhaps 10 September 2013 (T52/184) - Ms PA applies for child support assessment indicating she has 100% care of the child; assessment for 100% care by the mother granted on 11 October 2013; precise date of application can be taken to be 5 September 2013;
·11 October 2013 – Ms PA states that Mr SB commences having the child overnight Friday and Saturdays. The evidence of Mr SB was that he had the child two nights a week commencing in August 2013, although in replies in cross-examination, he agreed she first stayed overnight with him on 11 October 2013.
·Ms PA’s evidence was that from April 2014, Mr SB sometimes had the child for three nights a week from Friday night, which included Sunday night, and that he had her more nights in October when she was overseas (see below);
·19 October 2013; Ms PA travels overseas for the funeral of her father , and leaves the child in the care of Mr SB. Her evidence is that the child stayed at her usual place of residence in the care of her older brother Mr G, who returned home from university to undertake that care. Mr G’s evidence at the Tribunal corroborating Ms PA on that point was equivocal.
Mr G also told me that he did not cook which supports the evidence of the father that the child stayed with him or his brother’s family during the mother’s absence.
I preferred the evidence of Mr SB that, while the mother was overseas, he had care of the child on weekends as usual. I also accepted his evidence that for the duration of the mother’s absence, when the child was not at his place, she stayed at his brother’s place, apart from collecting clothes and other items she needed from her home. His brother has two children of his own. In that regard I relied also on a statement of Mr SB’s brother Mr PT, dated 27 October 2013.
·6 November 2013 – Mr SB informs Child Support Registrar that he has care of three nights a week (169 nights a year), plus 13 additional nights in October;
·27 November 2013 – revocation and further decision of the Child Support Registrar to find that Ms PA has 72% of care and Mr B, 28%;
·4 February 2014 – Mr SB objects to the decision of the Child Support Registrar of 27 November 2013 more than 28 days after the decision of 27 November 2013. On 3 April 2014, the Child Support Registrar disallows Mr B’s objection to the percentage of care held in the decision of 27 November 2013; Mr SB appeals to the SSAT;
·7 April 2014 – final ADVO; handwritten agreement not appended;
·April 2014 – Ms PA says that Mr SB commenced keeping the child with him on Sunday nights after his application for child support assessment was disallowed; Ms PA says Mr SB continues to keep the child overnight at every opportunity without my knowledge, consulting me or my consent. (Exhibit A1, para 28)
·Mr SB states that from 7 April 2014, he gave the child the option of staying with him on Sunday nights and either dropping her at the station or at her home on Monday morning; Mr SB states that the child stayed with him most of the April school holidays;
·Both parents agreed that Mr SB was away for his work on two weekends in May 2014, and that Ms PA therefore had the care of the child for the full week including the weekend on those dates;
·23 June 2014 – SSAT decides that from 5 September 2013, Ms PA is assessed at 57% of the care for the child, and Mr B, 43%;
The mother claims that she buys all the household items and groceries for herself, and the child. Mr SB claims that he pays for the extra-curricular activities such as Tamil language lessons, netball, music lessons and other activities. Ms PA also stated that she does all the washing for her daughter, while Mr SB stated that he handed the child back on Sunday evenings with her clothes washed. I accept that both parents pay for various expenses for their child, and that the main issue here is the number of overnight stays with each.
Mr SB provided statements from certain of his friends, neighbours and his brother Mr PT, generally praising the standard of care he provides for his daughter. Ms Winfield submitted that the statements all appeared to have a template look. Mr SB admitted in cross-examination that he had assisted the witnesses to prepare their statements, but said that he did not encourage any one of them to be untruthful.
Because Mr SB had assisted with preparation of the references, and because the referees did not, as Ms Winfield pointed out, live in close proximity to Mr SB, I did not find the statements to be of particular assistance, and gave them little weight. In saying that, I am mindful that there was no argument as to the quality of care between the parents. I did find the statement of Mr PT of assistance; it corroborated Mr SB’s evidence that during the mother’s absence overseas, the child spent nights with his brother and family. I accept that.
Ms PA’s schedule of nights the child spent with each parent was appended to her Statement of Facts and Contentions. She has taken 16 August 2013, the date of the Interim ADVO and agreement of the parties regarding access, as the start date for her records. She has taken it to 10 August 2014. The schedule indicates that for that period, Ms PA had the child 251 nights and Mr B, for approximately 114 nights.
Mr B’s schedule of nights he says he had the child with him (16 August 2013 – 17 November 2013), was at T39/124. He claims to have had the child at his home 45 nights from16 August 2013 to 17 November 2013.
A further schedule where both parents had indicated their recollections of when the child had stayed overnight with each was at T22/72. Both parents also marked T22/72, which commenced at 2 October 2013 and went to 20 November 2013. A further schedule where both parents had indicated their recollections of when the child had stayed overnight with each was at T23 which spanned 3 October 2013 to 6 January 2014. There was little agreement in the ticks and crosses, and accordingly the number of nights each had care of the child.
I accept the evidence of the mother that Mr SB did not have the child overnight until approximately 11 October 2013. Mr SB agreed in cross-examination that that was so.
I accept the evidence of Ms PA that Mr SB then had a pattern of having the child overnight for Friday and Saturday nights until he began to keep her for three nights in April 2014. I accept the evidence of Ms PA that from April 2014, Mr SB has had the child overnight three nights a week, being Friday evening to Monday morning.
I accept the evidence of Mr SB that for the time Ms PA was overseas from 19 October 2013, the child spent the nights in his care and at his brother’s residence.
I also accept the evidence that for two weekends in May 2014 when Mr SB was overseas, the child was with the mother.
Accordingly I find that commencing 5 September 2013, the shared care arrangements for the child were 251 nights or 68.8% for the mother, and 114 nights or 31.2% for the father. Applying section 55D of the Assessment Act, I have rounded the percentages to 69% for the mother and 31% for the father.
DECISION
The Tribunal varies the decision of the SSAT to find that for the period commencing 5 September 2013 the shared care for the child was 69% for the mother, and 31% for the father.
I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member .............................[sgd]...........................................
Associate
Dated 15 May 2015
Date of hearing 3 March 2015 Counsel for the Applicant Ms R Winfield Solicitors for the Applicant Coelho & Coelho Solicitors Solicitors for the Respondent Department of Human Services Joined Party In person
0
2
2