VGLV and Child Support Registrar (Child support second review)
[2019] AATA 1097
•3 June 2019
VGLV and Child Support Registrar (Child support second review) [2019] AATA 1097 (3 June 2019)
Division:GENERAL DIVISION
File Number(s): 2017/7612
Re:VGLV
APPLICANT
AndChild Support Registrar
RESPONDENT
AndNTWW
OTHER PARTY
DECISION
Tribunal:Senior Member A Poljak
Date:3 June 2019
Place:Sydney
The decision under review is set aside and in substitution, the Tribunal decides that the percentages of care for “A” are 50% for the applicant and 50% for the other party with effect from 20 February 2017.
.........................[SGD]...............................................
Senior Member A Poljak
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 – likely pattern of care for the child during the relevant period – where parents separated but living under one roof – where child suffered from mental illness – where parents provided equal care for the child – decision set aside and substituted
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) ss 50, 54F
CASES
Parent A and Child Support Registrar [2013] AATA 562
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634SECONDARY MATERIALS
Child Support Guide (version 4.40, released 6 May 2019)
REASONS FOR DECISION
Senior Member A Poljak
3 June 2019
The applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) made on 7 November 2017. The decision was in relation to whether there should be a change in the percentage of care that the applicant and the other party have in regards to their daughter, “A”, from 20 February 2017. The SSCSD decided to set aside and substitute an earlier decision of the Child Support Registrar (“the Registrar”) and decided that from 20 February 2017, the applicant’s percentage of care of “A” was 15% and the other party’s percentage of care was 85% (“the existing care determination”).
The issues to be determined in these proceedings are:
(a)whether the existing care determinations should be revoked and replaced by a new care determination; and, if so
(b)the percentage of care that should be used in the new care determination; and
(c)the date of effect of the new determination.
Relevant Legislative Provisions
Where an existing care determination is revoked, a new care determination will need to be made, and this requires the determination of the respective percentage of care that each parent has or will have of the child. Section 50 of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”) applies where a parent has a “pattern of care” for a child. The Tribunal has considered the meaning of the term “pattern of care” in Parent A and Child Support Registrar [2013] AATA 562 and said at [33]:
“The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case. This interpretation is consistent with the Guide, which provides that that minor departures from the normal care of the child will not constitute a change to the pattern of care.”
Subsection 50(3) of the Assessment Act provides that the percentage “must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the reasonable person has had, or is likely to have, during the care period.” Section 54A gives guidance on how the actual care of a child is to be determined. It provides:
1The 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.
2The 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.
3For the purposes of this section, a child cannot be in the care of more than one person at the same time.
4This section does not limit section 50, 51, 53B or 54.
If the actual care is not worked out on the basis of the number of nights, there is a question as to how it should be assessed. Attention must be given to the Child Support Guide (“the Guide”). Although I am not bound to strictly apply the Guide, it is government policy and should be considered if it is consistent with the Assessment Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634. Clause 2.2.1 of the Guide relevantly states:
2.2.1: Basics of Care
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Determining whether care exists
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In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case.
·To what extent does the person have control of the child, including having overall responsibility for the child and making:
· major decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities; and
· arrangements for others to meet the needs of the child;
·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 extra curricula activities?
·To what extent does the person pay the costs of meeting the needs of the child?
·To what extent does the person otherwise provide financial support for the child?
·To what extent does the child provide for his or her own needs or have those needs met from another source?
·To what extent is the child financially independent or financially supported from another source?
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Percentage of Care
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Where parents are separated but living in the same house, the Registrar will determine each parent’s percentage of care for a child based on individual circumstances of the case and evidence available. Generally, whether parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage 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.
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Pursuant to section 54F of the Assessment Act, the date of effect of any revocation of the existing care determination would be the day before the change in care and the date on which the new determination would take effect is the date of the change in care.
Consideration
It is appropriate for actual care to be taken into account only for the period up until the date on which the pattern of care changed; namely on 18 June 2017 when the other party and “A” vacated the family home. From that date onwards there was a new care period. The care period for consideration in these proceedings is 20 February 2017 to 17 June 2017 (“the relevant period”).
During the relevant period, the applicant and other party were separated but living under the same roof. It is important at the outset to note that during the relevant period “A” was 16 years of age, suffered from mental illness and was home schooled. At 16 years of age, “A” was somewhat independent in her decision making, particularly in regards to her contact with her parents. She spent most of her time in her bedroom and did not converse with the applicant regularly. The care pattern of “A” during the relevant period was plainly afflicted by reason of her mental illness and room should be given for flexibility in the arrangement of care provided. In this case a pattern of care is not one that can be characterised by precise detail, day by day. Given the circumstances, some accommodation is expected for vicissitudes of circumstance in the care of “A”.
The applicant and other party have both provided evidence about the level of care they each provided during the relevant period.
The applicant submits that he provided care for “A” in the form of accommodation and financial support. The evidence shows that he paid the household bills during the relevant period. The applicant explained at hearing that he tried to communicate with “A” as much as he could but she was always in her room. He stayed at home to care for and supervise “A” when the other party worked late (until approximately 9-10pm, four nights per week) and tried to cook “A” meals, although she never accepted them. The applicant also stated at hearing that he was never given an opportunity to be involved in decisions regarding “A”’s medical care or schooling and was “just ignored”.
The other party claims that she provided emotional support, transport, health care and was responsible for making decisions about “A”’s care. She claims that the applicant was never home on weekends and that she took “A” to her monthly psychologist appointments for her mental health issues. The other party submitted that she brought all of the household groceries and occasionally cooked for “A”. She accepts that she worked late a few nights a week but was otherwise home by 6pm and assisted “A” with her school work. The other party also submits that she provided some cash payments to the applicant towards the household expenses, although this is refuted by the applicant.
It is plain on the evidence that the relevant period was a very difficult period for the applicant, other party and “A”. This is often the case when families separate however in this matter there is the added difficulty of “A”’s mental health issues. The evidence of actual care is contradictory. However, I am satisfied that during the relevant period the applicant provided financial support and supervision. He wanted to be more involved in making decisions about “A”’s care, however he was ignored. The other party provided emotional support, transport, health care and was responsible for making major decisions about “A”’s care. “A” often cooked meals for herself and the applicant also tried to contribute in that regard, albeit his attempts were futile.
Having careful regard to all of the available evidence I am not satisfied that it demonstrates that the actual care of the child is something other than equally shared.
Decision
The decision under review is set aside and in substitution it is decided that the percentages of care for “A” are 50% for the applicant and 50% for the other party with effect from 20 February 2017.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 3 June 2019
Date(s) of hearing: 6 July 2018 Applicant: In person Solicitors for the Respondent: S Sangha, Department of Human Services Other Party: In person
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