ZHQF and Child Support Registrar (Child support second review)
[2020] AATA 2936
•10 August 2020
ZHQF and Child Support Registrar (Child support second review) [2020] AATA 2936 (10 August 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7378
Re:ZHQF
APPLICANT
AndChild Support Registrar
RESPONDENT
AndGZHT
OTHER PARTY
DECISION
Tribunal:Member D K Grigg
Date:10 August 2020
Place:Brisbane
The decision under review is set aside and substituted with a decision that during the period of 18 February 2019 to 28 June 2019 the Applicant had 60 per cent care of the child.
...............................[SGD].........................................
Member D K Grigg
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 (Cth).
CATCHWORDS
FAMILY ASSISTANCE – percentage of care –– what is the correct percentage of care - decision under review set aside.
LEGISLATION
Child Support (Assessment) Act 1989 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Norouz and Secretary, Department of Social Services (Social services second review) [2018] AATA 2712
Wade v Secretary, Department of Family and Community Services [2004] FCA 1660SECONDARY MATERIALS
Family Assistance Guide (2020)
REASONS FOR DECISION
Member D K Grigg
10 August 2020
INTRODUCTION & CLAIM HISTORY
The Applicant and the Other Party are the separated parents of one child born in 2001 (“the Child”).
Between 15 June 2015 and 18 February 2019 the Child Support Agency (“CSA”) determined the Applicant had 100% care of the Child for child support calculation purposes.[1] At all relevant times the Other Party has been paying the Applicant child support on the basis that the Applicant’s care percentage and cost percentage was 100% and the Other Party’s care percentage was 0% at a cost percentage of 0%.[2]
[1] Exhibit 1, T Documents, T13 page 82, Child support mainframe screen capture.
[2] Exhibit 1, T Documents, T13 page 82, Child support mainframe screen capture.
On 18 February 2019 the Other Party advised the CSA that the care arrangements for the child had changed and that there was no “care” being provided by either parent to the child from 18 February 2019. The CSA notified the Applicant and informed him that the information provided by the Other Party would potentially have an impact on his current assessment. The CSA asked the Applicant to contact them by 9 March 2019.[3]
[3] Exhibit 1, T documents, T4, page 42, letter from child support to the applicant dated 23 February 2019.
The Applicant advised the CSA that since the Child had commenced at university, the Applicant:[4]
(a)was continuing to care for him;
(b)washed the Child’s clothes and paid for all of his needs;
(c)drove extensively each week to collect the Child from university to home and back;
(d)cared for the Child 3-4 nights per week.
[4] Exhibit 1, T documents, T14, page 94, CSA Customer Contact Details dated 28 February 2019.
The Applicant also said Centrelink still considered that the Child was in his care.
The CSA decided on 28 March 2019 that the Child was still in the Applicant’s care 100% of the time.
In April 2019 the Other Party advised the CSA that she objected to its decision regarding the assessment of the Child’s care. The Other Party advised that:[5]
(e)the Child is currently studying at University and living at a College on University premises;
(f)the Child’s accommodation and food are provided by the College where he resides;
(g)the College fees are funded entirely by way of a scholarship awarded to the Child;
(h)the Child also receives additional scholarship money and an allowance for his needs whilst at University;
(i)since attending university in February 2019 the child spends only one or two nights a week at the Applicant’s home and therefore the decision that the child is in the Applicant’s care 100% of the time is incorrect.
[5] Exhibit 1, T documents, T5, page 43, letter from the other party dated 16 April 2019.
On 8 July 2019 the Applicant and the Other Party were informed by the CSA that the current period would end on 31 July 2019 and that it had calculated a new assessment for the period 1 August 2019 to 31 October 2020.[6]
[6]Exhibit 1, T documents, T8 and T9, pages 47 – 62, letter from child support to the other party and the applicant dated 8 July 2019 9 July 2019.
On 9 July 2019 to the CSA informed the Other Party that it had disallowed her objection to the care arrangements decision.[7]
[7] Exhibit 1, T documents, T9, page 57, letter from child support agency to the other party dated 9 July 2019.
The Other Party sought a review of the CSA decision by the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[8] The SSCSD set aside the decision under review and found that neither the Applicant nor the Other Party were providing the Child with care from 18 February 2019. As a result of this decision the child support case in respect of the Child was terminated with effect from 18 February 2019.[9]
[8]Exhibit 1, T Documents, T10, pages 63-68, Application for Review dated 26 July 2019.
[9] Exhibit 1, T Documents, T2, pages 4 – 3, pages 4 – 8, SSCSD decision dated 4 October 2019.
The Applicant has sought a review of the SSCSD’s decision by this Tribunal.[10]
[10] Exhibit 1, T Documents, T1, pages 1 – 3, Application for Review dated 12 November 2019.
ISSUES FOR DETERMINATION
The issue for determination is what is the shared care percentage for the period from 18 February 2019 (when the Child commenced at university) to 28 June 2019.
How Percentage of Care Is Determined
Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”) sets out how the percentage of care is determined in the case of shared care of a child. The percentage of care determined by the CSA, impacts the amount of child support payments payable by one parent to another.
In making its assessment the Child Support Registrar (“CSR”) considers whether a person has a pattern of care for a child or no pattern of care. The CSR must determine the responsible person's percentage of care for the child during the care period. (see sections 49(2) and 50(2) of the Assessment Act). If there is no pattern of care the person’s care percentage is zero: section 49(3), Assessment Act. If there is a pattern of care, the “percentage determined … 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”: section 50(3), Assessment Act.
Pursuant to section 54A(1) of the Act:
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
(emphasis added)
Where a person’s percentage of care has changed, the determination in place must be revoked: section 54F, Assessment Act (where the change to the percentage of care results in a change to the person’s cost percentage in relation to a child), section 54G, Assessment Act (where a person’s care percentage falls below 14%), section 54H, Assessment Act (change otherwise).
Existing Care Determination
The latest determination in place was that the Applicant and the Other Party had 100% and 0% shared care respectively.
DETERMINING THE PERCENTAGE OF CARE
The Other Party submits that once the Child commenced university and resided at a college on campus, the Applicant no longer “cared” for the Child.
The Applicant submits that there has been no change in the care he provides.
Pattern of Care
Section 50 of the Assessment Act requires that a pattern of care for the child must be established in order for a percentage of care to be determined.
“Pattern of care” is not defined in the Assessment Act, the Secretary referred the Tribunal to the Family Assistance Guide (“Guide”), which is used as a guide to the interpretation and application of the Act. The Tribunal is not bound to apply the Guide but it may, and should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[11]
[11] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
The Guide sets out in section 2.1.1.50 that the first step in determining the percentage of care attributable to an individual is to establish a pattern of care. It provides:
The pattern of care to be used in the shared care determination is either the pattern agreed to by all carers of the child or, if there is no such agreement, the pattern of care as established by the decision maker for the care period. A care period begins on the day on which the care of a child starts to be shared between 2 or more adults, or the day on which the pattern of care changes and ends when there is a subsequent change in care. It should be noted that a care period will generally be a 12 month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12 months periods, unless otherwise advised. A care period may be shorter than 12 months where the level of care is unsettled and changes on a regular basis.
Chapter 2.1.1.45 of the Guide provides:
The pattern of care to be generally used in the shared care assessment is the actual care arrangements for the child. As much as possible, the pattern of care should be the pattern as agreed to by all parties who care for the child. Otherwise, Centrelink must carry out further investigation to determine the actual pattern of care.
…
Where the carers do not agree on the actual pattern of care for the child, Centrelink must determine the actual pattern of care on the basis of available evidence. this applies even if a formal care arrangement exists. If the carers do not agree on the care percentage, each carer should be asked to provide additional evidence to support their declared arrangements in order for Centrelink to make a decision as to the actual pattern of care.
The Federal Court in Wade v Secretary, Department of Family and Community Services [2004] FCA 1660 has determined that the percentage of care allocated to each person “should reflect the actual care provided by them” and that:[12]
The 'pattern of care' referred to in the guidelines has two aspects…In the first place it reflects the care arrangements agreed between the parties or involves a finding which has regard to the actual care arrangements for the child. It is said that 'as much as possible' the pattern of care should be the pattern agreed. That was the course taken here. The pattern of care is also used as the basis for the calculation of percentage in par 2.1.1.50. Although they are expressed as the respective party's 'days of care· under par 2.1.1.45, which are to be divided by the number of days in the period in question, the Guidelines permit more than one method of assessing those days. Relevantly one is to calculate the number of hours of care and aggregate them.
[12]Wade v Secretary, Department of Family and Community Services [2004] FCA 1660, per Keifel J (as she then was), at [29]-[31].
As this Tribunal noted in Norouz and Secretary, Department of Social Services (Social services second review) [2018] AATA 2712, at [34], a flexible, “broad brush”[13] approach is required and that, in determining an equitable outcome, it may be appropriate in a particular case to consider the actual hours of care, as opposed to the number of nights, and also to have regard to the financial responsibilities taken on by each party involved.[14]
[13]Re Warne and Department of Families, Community Services and Indigenous Affairs [2006] AATA 159, at [25] – [27].
[14] Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs &
EVIDENCE OF THE ACTUAL CARE OF THE CHILD
The Tribunal had the following submissions and evidence provided to it by the parties:
·Exhibit 3, Other Party’s submission and attached screenshots received 8 April 2020
·Exhibit 4, Applicant’s evidence - [Child’s] O-Week schedule received 14 April 2020
·Exhibit 5, Applicant’s evidence – Google Map Screenshots received 14 April 2020
·Exhibit 6, Applicant’s letter received 24 April 2020
·Exhibit 7, Applicant’s response to AAT1 Decision received 24 April 2020
·Exhibit 8, Applicant’s submissions attaching letter from [Child], letter from [friend of the Child] and spreadsheet relating to travel received 6 May 2020; and
·Exhibit 9, Other Party’s evidence – conversation screenshots received 6 May 2020.
At the hearing, both the Applicant and the Other Party gave evidence.
The Applicant informed the Tribunal a few days before the hearing commenced, that he had intended to call a number of people to give evidence on his behalf. The Other Party had not been provided with any witness statements from these people. The Tribunal reminded the Applicant that a previous direction had been made giving him an extension of time to file any new evidence and he had not done so. The Applicant was advised that if he wished to call people to give evidence that the hearing would need to be adjourned, witness statements would need to be prepared and those statements would then need to be provided to the Other Party so that she would have an opportunity to consider that evidence before a rescheduled hearing. The Applicant elected to continue with the hearing without calling those witnesses.
The Applicant also provided witness statements (in the form of letters) from the Child and a friend of the Child. The Applicant said he wanted the Child to give oral evidence at the hearing. The Tribunal did not allow that to occur. It is not the general practice of the Tribunal to allow children to give evidence in these types of proceedings. The Tribunal considered that it was inappropriate to have the Child give evidence against either parent and that, in this matter, it would have been inappropriate for the Child to have been cross-examined by the Other Party. Further the Tribunal would not find the evidence to be probative given that little weight could be given to the Child’s evidence (given the Child’s lack of independence from either party). The Child also has Asperger’s and the Tribunal was concerned that making him give oral evidence against his mother may have a negative impact on him which outweighs any benefit to the Tribunal. The Other Party confirmed that she had no questions for the Child’s friend so he was not called to give evidence either.
The Applicant’s Evidence
The Applicant says that during the period in question he was caring for the Child 100% of the time.
The Child received a scholarship to attend university. The scholarship money covers the cost of his university fees and means that the Child will not have any HECS debt when he graduates. Terms of the scholarship allowed that part of the scholarship money would be used to pay $6,000 towards accommodation at a College on campus. The University would pay the $19,000 balance for that accommodation.
The Child was anxious about starting at University and the Applicant promised the Child “he would be there no matter what, whenever he needed”.
The Applicant says he purchased everything the Child required for university and college including a fridge, linen and so on.
From the beginning the Child did not like it and the Applicant had to drive to the college on the first night to calm him down.
The agreement the Applicant had with the Child was that the Child could come home whenever he did not need to be at university.
The Applicant says he had to drive to the University on numerous occasions during the period in question to assist the Child.
During the semester the Child would come home to stay with the Applicant at weekends.
On the weekends the Applicant and the Child would discuss whatever issues the Child was having. The Applicant said he was “in a role of a therapist”.
While staying with the Applicant the Applicant would pay for the Child’s food and other needs.
The Applicant said that during the period in question the Child slept at his house 60% of the time. The rest of the time he stayed at the College.
When the Child was at College the Applicant says he communicated with the Child “anywhere up to 20 times a day” via messages, sometimes up to midnight. The Child would also telephone the Applicant. The Applicant said he did not provide the Tribunal with a copy of the text messages “because they’re personal” and would betray his Child’s trust.
During study weeks and examination weeks the Child stayed with the Applicant.
The Applicant told the Tribunal that he also has Asperger’s and he has a very good understanding of the Child’s needs and tries to guide him based on his own experience.
The communications he had with the Child would take up several hours per day.
When the Child was 15 years of age he became a member of a political party. When he was 16 years old the Child received an award from the political party because of all of the campaign assistance he gave the party. During this campaigning the Applicant said he drove the Child around and spent days with him at election booths so that the Child felt safe. The Applicant says the Child was only able to participate with the political party events and campaign because the Applicant helped him.
The Applicant acknowledged that the Child had been interstate independently a few times prior to turning 18 years of age but says he drove the Child to and from the airport and booked his tickets for him. On a trip to Melbourne the Applicant says he arranged for the Child to be picked up from the airport and he stayed with the Applicant’s family.
During the period the Child participated in activities such as debating.
The Applicant submits that the fact that the Child was able to attend some medical appointments on his own, outside the period in question, does not diminish the level and pattern of care that he was providing the Child.
In 2018 the Applicant bought the Child a car. It was registered in the Child’s name so he could learn to drive and develop independence. There were written allegations by the Other Party that the car was really for the Applicant and not for the Child etc. I need not go into those matters. Both the Applicant and the Other Party agree that the Child did not use the car during the period.
The Applicant disputed that the Other Party has the same level of communication with the Child as he did.
The Applicant told the Tribunal that the Child was never able to wash his own clothes.
During the period the Child stayed nowhere other than at College and with the Applicant.
The Applicant provided a calendar he had completed, setting out which nights the Child stayed at college or with the Applicant during the relevant period.
The Applicant concluded that the “worse case scenario” is a finding that he cared for the Child 60% of the time during the relevant period.
The Other Party’s Evidence
The Other Party said she did not know how to quantify the percentage of care given and noted that the CSA does not just consider only the time the child is physically with the parent.
She said she had tried to provide the child with support and assistance during the period and was able to do so more freely because the Child was living at college away from the Applicant.
The Tribunal asked her what sort of the support and assistance she provided the Child during the relevant period she said:
(a)a similar level of support as the Applicant;
(b)she had frequent daily contact with the Child via facebook messenger. The Other Party provided some screenshots of those communications;
(c)she assisted him with setting up his room at college with things such as cups, spoons, toiletries;
(d)she taught the Child how to wash his clothes and provided him with a laundry basket and washing liquid;
(e)she gave him financial assistance, and usually gave him cash when she was with him.
I asked the Other Party how often she visited the Child at college. She said she only visited the Child once at college and that this was after the period in question.
She said she taught him how to wash clothes through a video chat.
The Other Party said she took out private medical insurance which covered the children of the relationship she had with the Applicant. She said she had taken the Child for eye tests but this was after the period in question.
When asked how often she saw the Child during the period she said she would often travel on weekends to see him at the Applicant’s residence and would take him for lunch, or shopping or to the movies.
The Other Party said she did not abandon the children as alleged by the Applicant and it was not her wish to see the children as infrequently as she did. As I explained earlier, it is not the Tribunal’s role to make any findings or judgment in relation to the Applicant’s allegation of abandonment.
The Other Party’s primary submission was that the Applicant did not have 100% care of the Child during the period because:
(f)the Child was residing at college;
(g)the Child had classes five days a week not four as stated at one stage by the Applicant;
(h)the college provided food, shelter, internet and laundry facilities for the Child;
(i)it was the Child’s choice where he stayed at weekends, it was not the Applicant’s choice;
(j)the youth allowance and scholarship money gave the Child more independence; and
(k)financially the Applicant did not provide substantially.
The Other Party provided an excerpt of a calendar between 18 February 2019 and 10 April 2019 which indicates that the Child spent most weekends with the Applicant.
The Other Party said the calendar she provided was based on information she received from the Child.
The Other Party stated that she believed the Applicant had “grossly overstated [the Child’s] Asperger’s and the effect of it”. She said the Child was a highly functioning member of society as was demonstrated by his being able to travel alone to another city and attend a conference. The Child attended and participated in debating events and canvassed for members of a political party extensively. The Other Party says this indicates that the Child was not as needy as the Applicant has stated.
The Other Party acknowledged that the Child did have an adjustment period at the beginning of university. For example, it took him a while to go to the food hall to have his dinner.
The Other Party says it was incorrect that the Child did not stay at college during the study period. She says there were a couple of nights when he stayed at college during the study period.
The Other Party told the Tribunal there were discrepancies between the calendar the Applicant provided and the google map screenshots the Applicant relies upon.
CONSIDERATION
There were accusations made by the Other Party that the Applicant was simply trying to get money for himself. The Tribunal is not in a position to determine this but notes that the Applicant strenuously denies the allegations. The Applicant accused the Other Party of not being a good mother. The Other Party was upset and told the Tribunal that the Applicant kept the Child from her. Again, it is not the role of the Tribunal in this matter to determine who may be the better parent or with whom a child should reside. These types of allegations do not assist the Tribunal in determining the issue under review.
Receipts of money spent by the Applicant on the Child were not kept. However, the Tribunal does not doubt that both the Applicant and the Other Party spent money on their Child. The Tribunal is not in a position to determine how much each party spent during the relevant period.
The parties were against each other on most points and there is no ability for the Tribunal to verify either parties evidence regarding amount of time spent caring for the Child.
No medical evidence was produced which would enable the Tribunal to understand the level of care the Child required given his medical condition.
The Tribunal does not doubt either parties’ evidence that they communicated with the Child regularly via his mobile phone. Full records of the number of communications each parent had were not presented to the Tribunal by either party.
The one area which seems to not be in disagreement concerns the approximate number of nights the Child spent at the Applicant’s during the period when the Child was attending classes at university. It appears that the Child spent most weekends during the period with the Applicant during the university semester. Further, other than for a few days the parties agreed that the Child stayed with the Applicant during the study period.
When the Tribunal examined the Applicant’s calendar and matched it against the google maps, it is not always consistent. However it was consistent for approximately 90% of the time.
It is often the case in these matters that neither party has any extensive corroborating evidence, and relies primarily on their own evidence. This is understandable.
In this circumstance the Tribunal considers that the actual care of the Child is best determined based on the number of nights the Child was in each parties’ care (see section 54A, Assessment Act).
The Tribunal finds that, given the state of the evidence, what can be found is that during the relevant care period, the pattern of care was such that the Applicant had 60% care of the Child, and this assessment is based on the amount of time the child stayed with the Applicant. The Other Party has zero % of care as the Child did not stay with her during the relevant period.
DECISION
The Tribunal finds that there was a change in the percentage of care that both the Applicant and the Other Party had in relation to the Child, and that the new percentage of care for the Applicant is 60%. Therefore, the Tribunal varies the existing care determination of 0% shared care and makes a new care determination that, during the period 18 February 2019 to 28 June 2019, the Applicant had a shared care percentage of 60%.
The decision under review is therefore set aside and substituted to reflect the change in shared care percentage.
I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
..................................[SGD]......................................
Associate
Dated: 10 August 2020
Date(s) of hearing: 7 July 2020 Applicant: By telephone Advocate for the Respondent: Mr A Summers, Lawyer Solicitors for the Respondent: Services Australia Other Party: By telephone
Another [2008] AATA 607; Brightman and Secretary, Department of Family and Community Services and Another [2004] AATA 405; Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533; Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473; Vendrell and Secretary, Department of Social Services and Anor [2014] AATA 22.
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