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Child Support - Whether There Was a Change to the Likely Pattern of Care

Cowell and Child Support Registrar (Child support) [2019] AATA 262 (7 January 2019)

DIVISION:                                           Social Services & Child Support Division

REVIEW NUMBER:                         2018/PC015018

APPLICANT:                                     Mr Cowell

OTHER PARTIES:                           Child Support Registrar

TRIBUNAL:                                       Member W Budiselik

DECISION DATE:                             07 January 2019

 

DECISION:

The decision under review is affirmed.

 

REASONS FOR DECISION

BACKGROUND

1. Mr Cowell, the applicant, and [Ms A] (the mother) are the parents of [Child 1] (the child born in 2001). From 22 June 2016, the Department of Human Services – Child Support (the Department) recorded the mother had 92% of the child’s care and the father had 8% of her care.
2. On 19 March 2018, the father advised the Department the child was no longer in either parents’ care from 16 February 2018. On 8 May 2018, a Departmental officer decided to reject the applicant’s request that the child’s care percentages should be changed.
3. On 14 May 2018, the applicant lodged an objection to the Department’s decision. On 12 July 2018, an objections officer within the Department decided the mother had 100% of the child’s care and the father had 0% of her care from 16 February 2018, with effect from 19 March 2018.
4. On 12 September 2018, the applicant lodged an application for a review of the Department’s decision with the Administrative Appeals Tribunal (the tribunal). On 7 January 2019, the tribunal conducted a hearing into the application. The applicant participated in the hearing. The mother was invited to be added as a party to the hearing but chose to not be added. Prior to the hearing the Department provided the tribunal and the applicant with a bundle of documents (folios 1–129).

ISSUE

5. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
6. The issues which arise in this case are:

a) Did a child support terminating event take place on 16 February 2018; and, if not,
b) Has there been a change to the care pattern for the child such that the care percentages used in the child support assessment should be revoked; and, if so,
c) The new care percentages which apply and the date from which they take effect.

Issue a): Did a child support terminating event take place on 16 February 2018?

7. Section 74 of the Act provides that if the Registrar becomes aware of a child support terminating event the Registrar must act to take it into account. A child support terminating event is defined in section 12 of the Act.
8. In this case the applicant advised the Department neither he nor the child’s mother were caring for the child from 16 February 2018. If this is the case and no other eligible carer has been assessed for child support in relation to the child, then a child support terminating event has occurred.
9. The way the Department interprets and applies child support legislation is set out in the online Child Support Guide (the Guide). The tribunal is not bound by law to apply the Department’s policy as set out in the Guide, but provided the policy is consistent with the legislation, it must have regard to it and in the ordinary course, follow it (Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) unless there is a cogent reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
10. Subchapter 2.2.1 of the Guide deals with the basics of care. Relevantly, it provides:

Determining whether care exists

An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.

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 (emphasis added) are relevant to the particular case:

  • To what extent the person has 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 (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.

Older children living away from home

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant (emphasis added). In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

11. The applicant said the mother did not comply with the terms of a 2008 Court Order in that she did not provide him with specified information about his child. The applicant said the care arrangements set out in the Court Order were not followed. The applicant said that over time his child had succumbed to her mother’s influence and that the child now had no contact with him.
12. The applicant explained that the Department had failed to provide him with the evidence the mother had provided to it and upon which it has based its care percentage decision. He said he had received the relevant information when he lodged his appeal to the tribunal. He said had the information been provided earlier the need for a tribunal hearing might have been avoided.
13. The applicant argued the mother had not been held to account for her decisions to pursue a romantic relationship some 700 kilometres away and to leave the children with their maternal grandmother.
14. The applicant said he was disappointed the Department had accepted the mother’s evidence about the financial support she provided to the child without further inquiry. The mother had provided to the Department evidence of bank transactions that she claimed proved her ongoing support for the child. The applicant identified:

  • An entry of $40.95 for [fast food] seemed excessive. That is, he believed the entry referred to expenditure for more than the child;
  • Transfers of cash to ‘[name]’ (that was meaningless but which the Department seemed to have accepted);
  • The inclusion of petrol costs as if the totality of the expenditure related to the child.

15. The applicant further argued that the level of expenditure set out in the papers far exceeded the mother’s financial capacity. With respect to this issue the tribunal advised the applicant that the mother’s financial capacity was not an issue it could deal with in the context of a care decision.
16. The tribunal reviewed the financial information provided by the mother to the Department. It accepted the comments made by the applicant that some of the line entries were difficult to interpret or meaningless without additional explanation. However, it concluded the evidence demonstrated the mother provided substantial ongoing financial support to the child.
17. The applicant argued that the mother had abandoned the child by moving away, and on the other hand argued she was over-involved and overly influential with the child via her periodic contact, text messages and social media.
18. The applicant appreciated some of the issues he wished canvassed were beyond the remit of the tribunal generally (for example, the quality of the mother’s parenting), or were not able to be dealt with in the context of a care percentage or care termination decision (for example, the mother’s financial resources). The tribunal advised the father that if he believed the child support assessment was unfair he had the option of seeking a departure determination (referred to as a change of assessment). The applicant said he would consider whether he would take further action or let the matters rest as the child’s assessment ceased in about 6 months.
19. The tribunal is satisfied in this case a terminating event for child support has not occurred on 16 February 2018.

Issues b) and c): Has there been a change to the pattern of care for the child such that the care percentages used in the child support assessment should be revoked, and, if so, from when should the new care percentages apply?

20. As a child support terminating event did not occur, the relevant provisions in this case are sections 50 and 54H of the Act which provide that if there is a change to a parent’s percentage of care the Registrar may revoke the determination and replace it with a percentage of care determination that reflects the actual care that the person will have, or is likely to have, in the care period. Subsection 54H(3) of the Act provides that when the Registrar is notified of a change in the care pattern for a child, if the date of notification is more than 28 days after the change occurred, the date of revocation is the day prior to the date the Registrar was notified.
21. It is not in contention that the applicant provides 0% of the child’s care or that the Registrar was made aware this was the actual level of care provided by the applicant on 19 March 2018.
22. At the time the case was assessed by the Department, the tribunal is satisfied the mother was providing the child with substantial financial support. It is also satisfied she is in regular contact with the child and that they have a strong emotional attachment. The tribunal accepts caring for a child who is an older teenager does not mean cohabitation is a necessary prerequisite to provide care. The Guide confirms this is the case and that the arrangements for care for older children are likely to vary. The tribunal concluded the mother should be attributed with 100% of the child’s care.
23. Consequently, when subsection 54H(3) of the Act is applied, the existing care percentage is revoked on 18 March 2018 and the new care determination has effect from 19 March 2018.

DECISION

The decision under review is affirmed.

Posted in: Derek Legal Blog at 25 February 20

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