TQMT and Child Support Registrar (Child support second review)

[2021] AATA 3052

TQMT and Child Support Registrar (Child support second review) [2021] AATA 3052 (27 August 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2020/6049
GENERAL DIVISION	)

Re: TQMT
Applicant

And: Child Support Registrar
Respondent

And: BJJL
Other Party

DIRECTION

TRIBUNAL:  Dr Stewart Fenwick, Senior Member

DATE OF CORRIGENDUM:            30 August 2021

PLACE:           Melbourne

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:

1.The references to “TMQT” in the decision are replaced with “TQMT”.

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

Senior Member

Division:GENERAL DIVISION

File Number:          2020/6049

Re:TMQT

APPLICANT

AndChild Support Registrar

RESPONDENT

AndBJJL

OTHER PARTY

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:27 August 2021

Place:Melbourne

The Tribunal sets aside the decision of the Social Services and Child Support Division of the Tribunal dated 25 August 2020 and substitutes it with a decision that the percentage of care of the child between 25 October 2019 and 5 October 2020 is 51% to BJJL and 49% to TMQT.

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

Dr Stewart Fenwick, 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 – separation under the one roof – pattern of care –decision set aside and substituted

Legislation

Child Support (Assessment) Act 1989

Cases

P v Child Support Registrar [2013] FCA 1312

Secondary Materials

Department of Social Services, Guides to Social Policy Law: Child Support Guide (Version 4.57, Released 1 July 2021) < FOR DECISION

Dr Stewart Fenwick, Senior Member

27 August 2021

BACKGROUND

1. TMQT applied on 2 October 2020 for review of a decision of the Social Services and Child Support Division dated 25 August 2020 (AAT1).

2. AAT1 set aside an earlier decision by an officer of the Registrar dated 17 June 2020, deciding that TMQT had a percentage of care of 30% of their  child ‘M’, and BJJL had a percentage of care of 70% from 21 February 2020.

3. M was born in 2002 and lives under the same roof as the separated parents, with TMQT occupying the lower floor of the family property. BJJL applied on 21 February 2020 for an assessment of child support, asserting 100% care of M from the separation date, said to be 25 October 2019.

4. The Registrar made a decision on 17 March 2020 that from 25 October 2019 the percentages of care, effective 21 February 2020, were: TMQT, 49%; and BJJL, 51%. BJJL lodged an objection to this decision, which was disallowed on 17 June 2020; and subsequently applied to the Tribunal for review of that decision. TMQT was not contacted to participate in the first review at AAT1.

5. The Registrar lodged a Statement of Facts, Issues and Contentions (SFIC), and documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth.) (the T documents). TMQT and BJJL did not lodge documents but participated in the telephone hearing.

   LEGISLATION

6. A care percentage determination can be made under s 49 or s 50 of the Child Support (Assessment) Act 1989 (the Act). Section 49 applies in instances where there is no pattern of care. A determination under s 50 must correspond with the actual care the Registrar is satisfied that the responsible person has for the child during the care period.

7. Section 54A of the Act provides that the actual care of a child that person has during a care period ‘may be worked out on the number of nights’ a child was in a person’s care.

8. The term ‘care’ is not defined in the Act, but is understood to be a question of fact to be determined on the particular circumstances of each case (P v Child Support Registrar [2013] FCA 1312 at [107]). The length of a care period is also not defined in the Act.

9. The Child Support Guide (the Guide)[1] (section 2.2.1) observes that where there is doubt as to the extent to which a person is providing care, in making a child support assessment the Registrar will ‘consider whichever of the following are relevant to the particular case’:

   [1] The Guide is found at what extent the person has control of the child, including having overall responsibility for the child and making:

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

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

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

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

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

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

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

10. The same section of the Guide observes that a care period is ‘generally a 12-month period from the day on which the actual care of a child began or changed’; but recognises that a shorter or longer period may be appropriate, depending upon the circumstances.

    EVIDENCE

11. At the hearing, BJJL stated that she was a ‘sole parent in terms of decision-making’ in respect of M. She explained that she and M have lived on the top floor of the property since her separation from TMQT, with whom they have little interaction. BJJL stated that contact with M was controlled in accordance with an intervention order, until M turned 18.

12. BJJL stated that she has a joint bank account with TMQT, and accepted that the primary source of funds was TMQT’s wages. BJJL stated that she gained employment in January 2020, and her wages went into a separate account. She was stood down from her position in March 2020 and made redundant in July, moving onto JobSeeker. BJJL acknowledged the receipt of child support payments from TMQT.

13. BJJL stated that she paid for a number of household outgoings: rates and water ‘in full’; a Wi-Fi connection; house insurance, paid in July 2021; and shopping and food.

14. BJJL also stated that she had care of M and paid for her necessities, particularly specialist medical treatment for M’s mental health, and accompanied M to these appointments. She stated that she provided emotional and financial support for M, and also paid for a 6-month course of study between February and July 2020. M left school at a point in 2019.

15. TMQT stated that he was in work and paid to keep a roof over the family’s head. He stated that he kept up the mortgage payments, and paid for electricity and water. TMQT stated that the rates were split between them, acknowledging that BJJL had paid for one quarter.

16. TMQT stated that he also paid for internet service at the house, and that he paid for registration of M’s car. He described his relationship with M as ‘tricky’ due the presence of BJJL. TMQT stated that the intervention order commenced in September or October 2021, and is in place until September 2022.

17. TMQT acknowledged that BJJL undertook food shopping, but stated that he also provided ‘refills’ on a weekly basis. I asked for clarification of the living arrangements and TMQT stated that the parties share the single kitchen in the property, as well as a single laundry. There is a single fridge, pantry and set of cupboards, and he makes his contribution when he accesses the upper floor.

18. TMQT also stated in evidence that he had provided payments of child support during the separation, and that BJJL’s solicitors had proposed that she contribute toward the rates.

19. At the hearing, the representative of the Registrar referred to the summary of facts contained in the Respondent’s SFIC at [4]–[13]. This material includes summaries of information provided to the Registrar by the parties on various instances between May 2020 and June 2020. The key issues raised in evidence at the hearing appear to be consistent with the summary of information provided to the Registrar.

    CONSIDERATION

20. The Respondent’s SFIC submits that the following matters require determination: the care period; whether either or both parents had a pattern of care; and, if so, what percentage of care corresponds with the actual care.

21. I consider that it is appropriate to determine the percentage of care in this matter on the basis that there has been a pattern of care in respect of the parties, under s 50 of the Act. I consider the relevant care period in this case commenced upon the separation, which is accepted as 25 October 2019. I note that M turned 18 on 6 October 2020, and was not in full time study, and I consider it appropriate to determine the care period ceased on 5 October 2020.

22. There is no dispute in this matter that primary and direct personal care of M lay with BJJL. The existence of an intervention order (about which I had no documentary evidence) reinforces the fact that TMQT did not exercise decision-making authority even, as I understand the evidence, through consultation with BJJL.

23. The critical issue is the balancing of this fact with the varying financial contributions to the household. The evidence at hearing appears to have added some important context, being that the physical separation under the one roof is perhaps not as stark as might have been presumed. That is, while interpersonal encounters are infrequent, or perhaps, non-existent, the house is a shared space.

24. The evidence also indicates that the contribution to daily necessities, specifically food, is shared, albeit that the respective contributions are somewhat unclear.

25. I accept that the material lodged with, and oral evidence given to, the Tribunal point to payments for the household coming from the joint account; and the evidence also demonstrates that the sole contributor to that account was TMQT. The evidence demonstrates, to my satisfaction, that a significant financial contribution to M’s welfare was made throughout by TMQT.

26. I also accept that BJJL was in employment for some months, and accordingly her personal financial contribution to M’s welfare should be understood as having increased as a consequence. There is no significant dispute here, either, that there were certain payments made toward the household by BJJL.

27. However, I do not consider this period of employment to be a significant enough change in the affairs of the household to represent a change in the pattern of care. Accordingly, taking into account the evidence overall, I consider that the appropriate percentage of care determinations are as follows: BJJL, 51%; TMQT, 49%.

    DECISION

28. For the reasons given, the Tribunal decides to set aside the decision of the Social Services and Child Support Division of the Tribunal dated 25 August 2020, and substitutes it with a decision that the percentage of care for M between 25 October 2019 and 5 October 2020 is 51% to BJJL and 49% to TMQT.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 27 August 2021

Date of hearing:	27 July 2021
Applicant:	By telephone
Advocate for the Respondent:	Tim Noonan
Solicitors for the Respondent:	Services Australia
Other Party:	By telephone