Malcolm v Malcolm [2012] SSATACSA 1

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DECISION UNDER REVIEW

A decision made by an objections officer on 22 November 2011 to allow an objection to a decision made on 17 September 2011. The objections officer determined that Ms Malcolm and Mr Malcolm each had a care percentage of 50% for their daughters, Linda and Melissa, from 12 September 2011.

HEARING BY TRIBUNAL

The application was heard on 8 February 2012, before XXXXXX, Member.

ATTENDANCE

Ms Malcolm attended the hearing and gave evidence to the Tribunal.

Mr Malcolm participated by way of conference telephone.

A representative of the Child Support Registrar was not in attendance.

DECISION OF THE TRIBUNAL

On 8 February 2012 the Tribunal decided to affirm the decision under review. This means the application for review is unsuccessful.

DATE OF DISPATCH20 February 2012

REASONS FOR DECISION

HISTORY

1.Ms Malcolm and Mr Malcolm are the parents of Linda, born 2001, and Melissa, born 2003.

2.They have advised that they separated September 2011. Registration of assessment for child support payments for both children was accepted on 12 September 2011 by the Child Support Agency (the Agency). At that time Ms Malcolm advised that they were separated under the one roof. The Agency recorded Ms Malcolm as having 100% of the care of both the children at that time and wrote to Ms Malcolm and Mr Malcolm on 17 September 2011 advising of the acceptance of the registration and the percentage of care determined.

3.On 23 September 2011 Mr Malcolm, as the parent liable to pay child support under the assessment, lodged an objection to the decision to calculate his liability on the basis that Ms Malcolm had 100% of the care of their children. In his objection, Mr Malcolm noted that he relevantly cared for both children in that:

a)he and Ms Malcolm remained living in their house with their children;

b)he prepared both children for school, took them to school, and cared for them after school twice a week;

c)he had the care of them every second weekend;

d)he would have care of them for half of each school holiday; and

e)he paid all the household bills and for all the household groceries.

4.Ms Malcolm discussed Mr Malcolm’s objection with a CSA officer. She is relevantly recorded as agreeing to the list of matters asserted by Mr Malcolm as summarised above. However, it was noted that:

a)she did not agree to Mr Malcolm preparing the children for school, taking them to school, and caring for them after school twice a week;

b)Mr Malcolm cared for the children for about three hours Wednesday evenings, which she agreed would amount to about six days of care over a year;

c)she had no money of her own and so cannot establish her own household; and

d)Mr Malcolm worked long hours which made it difficult for him to care for the children to any great extent.

5.On 12 November 2011 an objections officer from the Agency allowed Mr Malcolm’s objection and decided that each of Ms Malcolm and Mr Malcolm should be taken to have 50% care of their children until there was a change in their living arrangements. The objections officer noted that Ms Malcolm had effectively agreed that she did not have 100% care of the children, as was the original decision but, absent agreement between them, it was impossible to determine the appropriate percentage of care each should be determined as having. Relevantly, the objections officer considered that, applying principles set out in the Guide, there was a presumption of equally shared care when parents continued to live in the same household with their children after separation, particularly where the parent who had less actual contact with the children was meeting the costs of the daily living needs. The objections officer did not refer to any law as authority for making the decision, but referred instead to ‘the Guide’, which is described as the Agency’s online guide to the administration of the new child support scheme.

6.On 1 December 2011 Ms Malcolm lodged an application for review of the objection decision with the Social Security Appeals Tribunal (the Tribunal).

7.The matter was heard on 8 February 2012.

ISSUES

8.The issue to be decided by the Tribunal is whether the Child Support Agency’s decision that each of Ms Malcolm and Mr Malcolm had 50% of the care of their daughters Linda and Melissa from 12 September 2011 was correct and, if not, what the correct care percentage should be.

EVIDENCE BEFORE THE TRIBUNAL

9.The Tribunal had available to it to the documents provided by the Agency regarding the application for review, numbered 1 to 77. The Tribunal also had available further documents provided to the Tribunal by Ms Malcolm, numbered A1 to A35, and by Mr Malcolm numbered B1 to B16, copies of which were sent to the each party. At the commencement of the hearing each acknowledged receiving a copy of those documents.

10.The Tribunal explained to Ms Malcolm and Mr Malcolm that care decisions, though usually expressed as being for periods of a year, only have effect until the Agency is advised of a change to care. In the present circumstances the care decision reached by the objections officer is heavily influenced by the fact that Ms Malcolm and Mr Malcolm remained living in the marital home with their daughters; thus, one would anticipate a change to the care percentages allocated once the parties ceased to live under the same roof.

11.In this context, the parties agreed that Mr Malcolm had left the home the Friday prior to the hearing, being 2 February 2012. The Tribunal stressed to the parties the importance of advising of this event and of agreeing what the new care arrangements were likely to be now that Mr Malcolm had set up his own home.

12.There was, in fact, not much to separate the evidence of Ms Malcolm and Mr Malcolm regarding their circumstances relevant to the care of the children since their separation, which they dated formally as September 2011. Ms Malcolm and Mr Malcolm agreed before the Tribunal to the following:

a)They have both been involved in the care and decision-making regarding the welfare of their daughters, and this did not change dramatically upon them deciding to separate. This was particularly so as they had had a period of estrangement, whereby Ms Malcolm left the marital bed and slept downstairs for around six months prior to them finally determining to separate.

b)Each of them supplied statements from friends, doctors, teachers and others which indicated that they had both been active and interested in the lives of their children. Each indicated that they intended to remain involved and active in that care and had done so when separated but living under the same roof. Each agreed that these documents were insufficient to determine exact caring activities undertaken by each of them since their separation.

c)Initially upon separation, Mr Malcolm remained sleeping in the main bedroom on the same level as their daughters. This meant that, until he moved upstairs some time around mid- October 2011, Mr Malcolm was available to attend and assist their daughters overnight – perhaps more so than Ms Malcolm as she was on a different level of the house. Both their daughters had serious health issues when young; both need ongoing supervision in that context. Their daughter Linda often needs settling and calming at night. In the period from September to mid-October 2011 both Ms Malcolm and Mr Malcolm assisted her at night – although Mr Malcolm’s evidence was that he did so more than Ms Malcolm in that period given the latter was sleeping on a different level of the house; Ms Malcolm disputed that she failed to wake and attend to her daughter even though sleeping on a different level. Both agreed that, when Mr Malcolm moved out of the main bedroom in mid- October 2011 and Ms Malcolm moved back in, she was the only one of them who attended to their daughters, but primarily Linda, at night. Mr Malcolm commented that he considered that Linda needed less assistance at night than was being suggested, that maybe it was only one or two nights a week as opposed to most nights per Ms Malcolm’s evidence. Regardless, they both agreed that Ms Malcolm has frequently arisen at night to assist Linda, and has done this solely since mid-October 2011.

d)Most mornings Linda would spend an hour with Mr Malcolm until her sister and mother awoke.

e)On Wednesdays Mr Malcolm has picked up the girls after school and cooked dinner for them. He would do this on Fridays as well, although on Friday evenings he would take Linda to dance and Ms Malcolm would take Melissa to athletics.

f)As well as the above, Mr Malcolm prepared the girls for school two days a week, made their lunches and supervised them getting to school, which is within walking distance of their home. Ms Malcolm pointed out this was not per an agreement between them, but something Mr Malcolm had done without discussion; she noted that she was also in the home at those times doing housework and other things and was thus relevantly caring for the girls at the same time. It was Ms Malcolm’s evidence (she referred to folio A6 of the material she had sent in to the Tribunal) that Mr Malcolm only had 36 hours per fortnight face-to-face time with the girls.

g)Mr Malcolm had the children for half the school holidays. Ms Malcolm pointed out that for seven nights of the three weeks Mr Malcolm had them in the last Christmas holidays, they slept at home in their own beds and she was thus the main carer overnight. Mr Malcolm said he looked after the girls up until bed time on those nights. Mr Malcolm also had to work three to four days in that period and he placed the girls with friends during those days.

h)The mortgage on their home has not been paid since they separated in September 2011. The arrears are anticipated to be deducted from the proceeds from the sale of their home. The sale has been delayed as the property settlement orders are not yet final. Thus, in this respect it can be said they will have shared the cost of the mortgage, and thus the cost of putting a roof over their heads, since separation.

i)Ms Malcolm said that she does not know whether household bills had been paid since separation as Mr Malcolm had caused the bills to be sent to his work. Mr Malcolm said they had been paid and were up-to-date. Regardless, they agreed that a term in the property settlement will require Mr Malcolm to pay any unpaid amounts out of his share – so he will be responsible for any shortfall if they have not been paid to date.

j)Whilst Mr Malcolm did not explicitly acknowledge that he changed access to bank accounts following the separation, it was implicitly accepted in his acknowledgement that Ms Malcolm would have had limited access to money initially following separation. The only relevance of this point was whether Mr Malcolm’s assertions in past submissions that he had relevantly cared for their children by payment of their daily living needs was valid. He was the only one working and thus most of the money had to have come from him, although Ms Malcolm noted that she sold personal possessions for $1,500 and borrowed money from a relative, and by the end of October 2011 she was in receipt of carer payment from Centrelink. Mr Malcolm was unaware as to whether these statements were correct.

k)Whilst superficially disagreeing as to how the cost of household groceries were met, the parties actually agreed that Mr Malcolm made himself responsible for buying groceries and that Ms Malcolm bought extras that she considered were needed. They agreed that Mr Malcolm gave Ms Malcolm $150 per week, initially in cash and thereafter by direct deposit; Ms Malcolm said she was told it was for her needs, although at some point it may have been indicated to have been child support.

13.Ms Malcolm said that she had bought the children’s school clothes, shoes and other things for the 2012 year out of her carer payment. She said she has only ever received two payments of child support from Mr Malcolm, given the dispute over care, and she was ‘on the poverty line’. Mr Malcolm suggested he had bought his children some clothes and supplied some stationery to them; Ms Malcolm disputed the utility of the clothes acquired.

14.The Tribunal asked the parties about what were the expected care arrangements following Mr Malcolm leaving the family home and establishing his own home. Both indicated that they anticipated every second weekend and half the school holidays to continue. Mr Malcolm said he would seek another night per week; Ms Malcolm was unsure. Ms Malcolm wanted to enter into a parenting plan to finalise the care. The relevance to the present dispute, as already discussed, is that the care arrangements have changed and new care percentages need to be agreed. The Tribunal cautions against a protracted process in coming to such an agreement.

15.The matters set out above in this and the History sections of these Reasons form the basis of the findings of fact made by the Tribunal in this matter, as summarised under the following heading.

FINDINGS OF FACT

16.On the balance of the evidence before it, the Tribunal makes the following findings:

a)Ms Malcolm and Mr Malcolm are the parents of Linda, born 2001, and Melissa, born 2003.

b)An application for a child support assessment for both children was accepted and made from 12 September 2011.

c)Ms Malcolm and Mr Malcolm state that they separated from September 2011. There was no prior registration or assessment for child support.

d)Up until 2 February 2012, the parties continued to live in the former matrimonial home with both their children.

e)Both parents were actively involved in the immediate care of their children, and shared responsibility for decision-making regarding their welfare, prior to separation. This continued after separation. Mr Malcolm continued to work full-time, whilst Ms Malcolm continued to provide primary day-to-day care and supervision of their children post-separation.

f)An arrangement evolved post-separation whereby Mr Malcolm took care of the children every second weekend and half of the school holidays, as well as preparing both children for school, taking them to school, and caring for them after school twice a week. Both parents have participated in arranging for their children to attend extra-curricular activities.

g)Mr Malcolm undertook responsibility for buying groceries regularly, but Ms Malcolm supplemented the groceries from her own resources as she was able. Mr Malcolm was responsible for ensuring household bills for utilities and services were paid. The mortgage on their home has not been paid since separation, with the unpaid amount intended to be deducted from the proceeds of sale of the house pursuant to property settlement orders which have not yet been finalised.

h)Since mid-October 2011 Ms Malcolm has primarily been responsible for attending to the needs of the children overnight.

i)No parenting plan has been formally implemented by the parties to date.

APPLICATION OF LAW AND REASONS

17.The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act 1989 (the Act).

18.The percentage of care a person has of a child can affect the rate of payment of child support paid in respect of the child, by affecting the ‘cost percentage’ deemed under section 55C of the Act which is used in the formula for calculating child support under Part 5.

19.Where an application for child support (amongst other things) is made and there is no determination in place regarding the percentage of care a ‘responsible person’ has of a child, the Registrar must firstly be satisfied that there is or is likely to be a pattern of care for the relevant child and, if so, then the Registrar must ‘determine the responsible person’s percentage of care for the child during the care period’. This is the effect of section 50 of the Act. This section applies in the present circumstances as:

a)Ms Malcolm applied under section 25 of the Act on 12 September 2011 for administrative assessment of child support for Linda and Melissa.

b)Both Ms Malcolm and Mr Malcolm are, relevantly, ‘responsible persons’ pursuant to section 5 of the Act, being the parents of Linda and Melissa.

c)The Tribunal is satisfied that there was a pattern of care of Linda and Melissa for each of Ms Malcolm and Mr Malcolm in the period since separation in September 2011, as described above in the discussion of evidence and in the findings of fact made by the Tribunal.

20.A ‘care period’ is the period for which it can be considered that a responsible person ‘has had, or is likely to have, a pattern of care for a child … having regard to all the circumstances’: section 50(1)(a) of the Act. Whilst the Child Support Agency tends to consider percentages of care over the course of a year that is not a requirement under the Act; the care period can be as long or short as is appropriate. In the present case the care period in question would run from 12 September 2011 until the Agency is advised of a change in the care arrangements – a change likely occurred from 2 February 2012 when Mr Malcolm moved out of the family home, but it is not relevant for the Tribunal to determine whether that was the case.

21.Where the conditions in section 50(1)(a) are satisfied, as the they are, section 50(2) requires that the responsible person’s percentage of care for the child during the care period be determined, which by virtue of section 50(3) ‘must be a percentage that corresponds with the actual care of the child … that the responsible person has had, or is likely to have, during the care period.’

22.Section 50(3) does not apply, however, if either of sections 51 or 52 applies. Neither does in the present circumstances: both provide for interim percentage of care determinations in circumstances where action is being taken by a responsible person to have a care arrangement in respect of a child complied with.

23.Thus, the Tribunal (on review, standing in the shoes of the Registrar) must determine the percentage of care Ms Malcolm had, or was likely to have had, in the care period running from 12 September 2011. The percentage of care is generally determined on the basis of nights spent in the care of a responsible person under section 54A of the Act. However, such a basis is not mandated by the provision, as evidenced by the use of the term ‘may be worked out’ in that section. This interpretation is reinforced by the Explanatory Memorandum to the Bill which introduced this legislation into Parliament, where it is stated:

if the number of nights in care does not appropriately reflect the actual care … the person has, then the Registrar may use a different method to determine the percentage of care. An example of where nights in care may be shown not to be appropriate would be where a child does not stay overnight with a parent because the parent works night shifts but the parent does provide significant periods of daytime care.

24.The Tribunal notes that the percentage of care determined is reflected in the costs of the children under the child support formula. The Tribunal presumes that nights in care is adopted as the usual basis because it could be anticipated to approximate the costs incurred in caring for children on a proportional basis – costs reflected in the provision of shelter, food, clothing, education, activities and the like (see, for example, the decision of the Administrative Appeals Tribunal in Plowright and Department of Family and Community Services [2000] AATA 840).

25.This poses a difficulty in the present matter because the two children relevantly remained in the care of both parents at night, post-separation. Both parents were available, usually, to supervise and assist at night. Whether both had to get up at night, or whether the home duties were equally shared is not necessarily to the point. Both were there and available; both could exercise their parental responsibilities in an emergency. This difficulty is reflected in the Guide produced by the Agency and relied upon by the objections officer in this matter: there must be a practical presumption (as opposed to a legal one) of shared responsibility and care where parties remain living in the same household. That presumption could be defeated if there was evidence that one party took little or no active interest in the needs of the children, or had little or no interaction or supervision of them. But that is not the evidence here.

26.Ms Malcolm has effectively argued that care should be determined in the period post- separation on the basis of face-to-face time with the children, in which regard she suggested that Mr Malcolm only had approximately 36 hours per fortnight care of their children. But such a basis of determining a percentage of care is inappropriate; for example, it would mean that neither responsible parent should be taken to have had care of the children whilst they were at school, at a music lesson, at a friend’s house, or even asleep. The issue of ‘care’ is a broader concept than face-to-face responsibility, as it encompasses notions of legal parental responsibility (which continues even when the child is with other people, such as teachers), supervision, decision-making and also costs.

27.In Watanabe and Watanabe [2010] FMCAfam 94, Slack FM noted with respect to an earlier form of these provisions (at paragraph 22) that:

The Assessment Act does not prescribe the matters or factors that ought to be taken into account in how to assess the percentage of care. The discretion, though, ought to be exercised within the framework provided by the Act, in particular, the objects of the Act (s.4 of the Assessment Act). I do not though consider that this exercise should become an exercise in mathematical accounting. The nature of the consideration is not capable of precision because the costs of children is not confined to their daily needs nor are those costs uniform across the year (and the Assessment Act recognises that fact).

28.Changes to the Act since the provisions then under consideration do not, in the Tribunal’s view, disturb the central theme to the above decision that a mathematical calculation of nights, days or hours will not necessarily best reflect the level of care provided by each parent.

29.The Tribunal considered that Ms Malcolm and Mr Malcolm must be taken to have been sharing care of their children prior to separation: Ms Malcolm having more face-to-face or hands on time with them, and Mr Malcolm having greater responsibility for earning sufficient income to support them all. Prior to separation the evidence shows that they were both active in their children’s lives, and this did not change after they agreed to separate. If they are considered to be equally responsible for the care of the children prior to separation it is difficult to determine how they should not be considered to be equally responsible afterwards, as little changed in terms of the division of parental responsibility.

30.The Tribunal notes the findings of fact made show that Mr Malcolm remained actively involved in hands-on care of his daughters, although he must have had less hands-on time than Ms Malcolm. The issue regarding the mortgage, household bills and the costs of groceries and other things shows, to the Tribunal’s mind, that they continued to share those costs post- separation, with Mr Malcolm having greater capacity to meet them than Ms Malcolm. That being the case, the Tribunal came to the conclusion that the correct decision on these facts was to consider that the care of the children was shared equally by Ms Malcolm and Mr Malcolm whilst the above arrangements were in place – nights in care being an inappropriate basis to determine care when they all live together, and all other factors pointing to shared responsibility.

31.Thus, the Tribunal determines under section 50(3) of the Act that Ms Malcolm’s percentage of care of Linda and Melissa in the period from 12 September 2011 was 50%.

32.The care period must be determined. The care period is such period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Agency’s policy in this regard, as set out in chapter 2.2.1 of the Guide, is that a care period is generally a 12 month period from the day on which the actual care for a child changed. The Tribunal is satisfied that is an appropriate care period for present purposes, although as discussed earlier it is likely that a new care determination has been or will be requested given that Mr Malcolm has left the family home as of 2 February 2012. Such a care determination, when made, will effectively supersede this determination.

33.Section 54B of the Act sets out the date of effect of new determinations of percentage of care. The percentage of care applies to each day in a child support period on and from the ‘application day’. The application day depends on the nature of the particular application, but in cases involving an application under section 25 of the Act for an assessment of child support, it is the day that application is made pursuant to section 54B(2)(a). The application made by Ms Malcolm for child support was registered on 12 September 2011, so that is the date the percentage of care determination applies from.

DECISION

On 8 February 2012 the Tribunal decided to set affirm the decision under review. This means the application for review is unsuccessful.

XXXXXX

Member

Date: 20 February 2012

DISCLAIMER

The publication of Social Security Appeals Tribunal child support decisions is authorised under subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

Personal particulars of parties to an appeal and their children are removed to protect their privacy. Names used in all published decisions are pseudonyms. Reasons for decisions are published in full (with any information which may identify involved individuals to a member of the public removed) to ensure that the full context and basis for the decision can be understood. The Social Security Appeal’s Tribunal’s decisions in relation to child support matters demonstrate the application of the Child Support legislation to the individual circumstances of the case being decided. Different fact situations or subsequent changes to legislation may result in different outcomes.

The CSA reviews all SSAT decisions to identify opportunities to improve its services and ensure its processes and policies are robust and accurate. The CSA publishes further information about SSAT decisions on their website www.csa.gov.au/publications/1313.aspx#ssat.