Adams and Hill (Child support)

[2024] AATA 4116

Adams and Hill (Child support) [2024] AATA 4116 (29 August 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC028087

APPLICANT:  Miss Adams

OTHER PARTIES:  Child Support Registrar

MrHill

TRIBUNAL:Member A Ryding

DECISION DATE:  29 August 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care of the child [Child 1] should remain reflected as 77% to Miss Adams and 23% to Mr Hill from 1 September 2022.

The date of effect of this decision is 25 July 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change in pattern of care – existing determination of care not revoked – date of effect – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This is an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision of Services Australia – Child Support (Child Support) regarding the percentage of care attributable to each of the parents in this matter.

2. The applicant, Miss Hill, and one of the other parties to this application, Mr  Hill, are the parents of [Child 1], born [date] December 2006. Miss Adams and Mr Hill have had a registered child support case in relation to [Child 1] since 7 February 2007.

3. As at May 2023, care was recorded as 77% to Miss Adams and 23% to Mr Hill.

4. On 19 May 2023, Mr Hill informed Child Support that [Child 1] was in the care of his maternal grandparents and had been since September 2022 (folio 71). He informed Child Support that Miss Adams used to live with her parents but moved 65 km away from them in September 2022. [Child 1] remained with his grandparents.

5. On 5 June 2023, Child Support made a care determination that care was 0% to Miss Adams and 6% to Mr Hill, from 1 September 2022, notified 15 March 2023 (folio 78).[1] Child Support appears to have taken Mr Hill’s 23% and changed it to 23 nights, which gave Mr Hill 6% care.

   [1] Child Support’s internal determination at folio 78 gives 15 March 202U as the date of notification, clearly in error and intended to read 15 March 2023. Refer the letters to the parties dated 5 June 2023 beginning at folio 80.

6. On 18 July 2023, Child Support made a further care determination, that from 1 June 2023, Miss Adams’s mother, Mrs [A] , had 80% care, Mr Hill had 6% care and Miss Adams had 14% care. This was the subject of a separate application to the Tribunal by Mr Hill and involving Mrs [A] . This was heard by a differently constituted Tribunal to the present one, in application 2023/BC027184. The decision of the Tribunal dated 1 March 2024 appears at folio 138.

7. There were then a series of efforts by Miss Adams to challenge the care decision made on 5 June 2023. The Child Support objections officer has treated 25 July 2023 as the date Miss Adams objected to the care decision made on 5 June 2023.

8. On 30 May 2024, Child Support provided its objection decision on Miss Adams’s objection to the care decision made on 5 June 2023 (the Objection Decision) (folio 48). It disallowed Miss Adams’s objection, with the result that care remained 0% to Miss Adams and 6% to Mr Hill from 1 September 2022, notified 15 March 2023.

9. On 17 June 2024, Miss Adams applied to the Tribunal for review of the Objection Decision. On 28 August 2024, the Tribunal conducted a hearing in this matter by MS Teams audio. Miss Adams and Mr Hill participated in the hearing. Child Support did not participate and instead relied upon its documents. Before the Tribunal were hearing papers supplied by Child Support, numbered 1 to 170 (the hearing papers). Miss Adams and Mr Hill provided evidence on affirmation at the hearing.

10. The Tribunal has had regard to all of the documents provided to it and the evidence provided by Miss Adams and Mr Hill. Reference below is made only to the documents and evidence relevant to this decision.

ISSUES

1. The child support scheme is intended to assist separated parents to take responsibility for the financial support of their children. It recognises that parents have a primary duty to maintain their children.[2]

   [2] Section 3 of the Child Support (Assessment) Act 1989.

2. How child support is assessed by Child Support and provided by parents is governed by the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

3. Part 5 of the Assessment Act sets out the way in which the annual rate of child support payable by a parent for a child for each day in a child support period is to be calculated. A critical element of that calculation is each parent’s “percentage of care” for the child, which falls to be determined under sections 49 to 54E of Subdivision B of Division 4 of Part 5 of the Assessment Act.

4. The issues for consideration in this application are:

   ·      Has there been a change in care? If so, what are the new percentages of care and when do they apply?

   ·      From when should the existing percentages be revoked (if at all)?

   ·      What is the date of effect of this decision?

CONSIDERATION

Issue 1: Has there been a change in care? If so, what are the new percentages of care and when do they apply?

1. Determining the applicable percentage of care involves identifying the amount of time a parent is responsible for providing care for the child. This requires consideration of the percentage of care that the person is likely to have, or has had, of the child during the relevant care period. Each time the care provided by one or other parent changes, a new care period arises and Child Support must consider if there has been a change in the percentage of care and what the new percentage of care should be.

2. The term “care” is not defined in the Assessment Act or the Registration and Collection Act. Subsection 54A(1) of the Assessment Act allows the Child Support Registrar to determine actual care by reference to the number of nights the Registrar is satisfied the child was, or is likely to be, in the care of the person during the care period.

3. However, in some situations it is more appropriate to consider other factors than nights in care. In Polec & Staker & Anor (SSAT Appeal)[3] the Federal Court identified certain factors to take into account when determining whether and to what extent a person has care of a child for the purpose of a child support assessment, and these are also set out in the Child Support Guide.[4] Those factors relevantly include:

   ·      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 extracurricular activities?

   ·      To what extent does the person make arrangements for others to meet the needs of the child?

   ·      To what extent does the person pay for 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 is the child financially independent or financially supported from another source?

   [3] [2011] FMCAfam 959.

   [4] In topic 2.2.1. The Child Support Guide is part of the Guides to Social Policy Law, a collection of publications issued by the Australian Government and designed to assist decision makers administering social policy law. It is persuasive but has no legislative force. However, the Tribunal should take into account government policy as long as it is not inconsistent with the provisions and objects of the relevant legislation, Re Drake and Minister for Immigration and Ethnic Affairs (no 2) [1979] AATA 179.

4. The Tribunal finds that the most appropriate way to determine the percentage of care each parent had is by reference to nights in care. However, in determining whether, on the nights [Child 1] stayed with Miss Adams at her parents’ house, he was in her or her parents’ care, the Tribunal has had regard to the factors set out in the Polec case.

Did care change in September 2022?

1. Miss Adams consistently told Child Support[5] and gave evidence to the Tribunal that there was no change in care and that between September 2022 and 31 May 2023 she continued to live with her parents and with [Child 1]. She said that she moved out on 1 June 2023 and [Child 1] decided to stay living with his grandparents. Miss Adams told the Tribunal that she and [Child 1] had lived with her parents from since around a year after the COVID‑19 pandemic began and so had been there for one or two years before September 2022. On some weekends she was not home and then her parents took care of [Child 1]. Sometimes [Child 1] stayed with his girlfriend.

   [5] See for example Miss Adams’ letter to Child Support dated 25 July 2023 (folio 36), calls with Child Support on 23 June 2023 (folio 94), and 27 February 2024 (folio 112)

2. Miss Adams provided Child Support with a letter from her mother dated 26 July 2023 (folio 113) and a friend, Ms [B], undated but provided to Child Support on 28 February 2024 (folio 116) in support. The Tribunal places no weight on Ms [B]’s letter as it contains secondhand evidence. Mrs [A] ’s letter stated:

   I hereby advise that my daughter [Miss]ADAMS and her son [Child 1]  have been living with my husband and I for several years after Miss Adams experienced a bad breakup.

3. Mrs [A]  does not refer to Miss Adams moving out on 1 June 2023 and, again, the Tribunal places little weight on this letter.

4. Miss Adams provided the Tribunal with a care calendar (folio 11) with the dates she said [Child 1] was in her care highlighted. She said she prepared it from reviewing text messages, her diary, bank statements and similar documents. However, the Tribunal understands from Miss Adams’s evidence that this shows the nights she was at home, at her parents’ house. Given the Tribunal’s finding below as regards delegated care, it does not assist the Tribunal in determining the percentage of care that Miss Adams had of [Child 1].

5. Mr Hill told the Tribunal that he understood that Miss Adams was not living at her parents’ house from September 2022 based on his interactions with her. He drove [Child 1] to and from his grandparents’ house and would not see Miss Adams there. Sometimes he would go inside their house, and sometimes not. He would also see her on the other side of Brisbane to where her parents lived. Mr Hill also relied on statements [Child 1] made to him. The Tribunal will not take into account [Child 1]’s evidence, as he is the child in question, notwithstanding that he was at the time around 16 years old.

6. Having considered the available evidence and noting in particular the consistency of Miss Adams’s evidence over time, the Tribunal finds that Miss Adams continued to live with her parents and [Child 1] from September 2022.

7. Miss Adams gave evidence to the Tribunal about the care she provided to [Child 1] whilst living with her parents. Miss Adams did not pay board or make a contribution for utilities to her parents, however she paid for groceries and paid for [Child 1]’s costs such as clothes, medical appointments and school fees. Miss Adams was listed as [Child 1]’s contact at school and would arrange and take him to medical and dentist appointments. Miss Adams gave evidence as to a usual day with [Child 1]. Based on the evidence, the Tribunal finds that, whilst living with her parents, Miss Adams provided care to [Child 1], and her parents did not.

8. The Tribunal does not consider that, on nights Miss Adams did not stay at her parents’ house, [Child 1] was necessarily in his grandparents’ care. Instead, the Tribunal has considered whether it could be said that Miss Adams delegated care of her son to her parents on the nights that she was not there.

9. The courts and the Tribunal in other matters have recognised that it is possible in certain circumstances for a person to delegate to a third party the custody, care and control of their child.[6] The most common factual scenario is where a child attends boarding school but this is not the only scenario. Delegation by one family member to another has also been recognised. The courts have said that the mutual acceptance of the ties and responsibilities between members of a family, sustained by communication, sacrifice and the determined provision of support, was substantial enough to support the existence of custody, care and control.[7]

   [6] Secretary, Department of Social Security v Lowe (1999) 56 ALD 609.

   [7] See for example, Van Cong Huynh v Secretary, Department of Social Security (1988) 18 FCR 402.

10. Noting in particular the evidence Miss Adams provided as to the care she gave [Child 1], the Tribunal finds that on the nights that she did not stay at her parents’ home, she delegated care of [Child 1] to her parents. That is, her parents did not provide any care over and above that provided by Miss Adams.

11. The Tribunal therefore finds that there was no care change in September 2022 as regards Miss Adams.

12. The Tribunal finds that, as regards Mr Hill, Child Support wrongly changed his care percentage from 23% to 23 nights in care in its care decision made on 5 June 2023. The Tribunal also finds that this error was repeated in the Objection Decision made on 30 May 2024. Mr Hill raised this error in his response to Miss Adams’s objection, on 19 March 2024 (folio 123, in the answer to question 4). In the notes accompanying the care calendar Mr Hill provided with the response to the objection, Mr Hill stated that he thought his care was around 20.5% based on his care calendar, which he said was taken from “proven days (text conversations)” and was closer to 22% (folio 130).

13. Mr Hill provided a care calendar and extracts from text messages regarding [Child 1]’s care (beginning at folio 124). By reference to the 12-month period, 1 September 2022 to 31 August 2023, the care calendar supports that Mr Hill had care of [Child 1] for 65 nights, which would mean he had care of [Child 1] 17% of the time.[8] The care calendar suggests that some months Mr Hill had care of [Child 1] for four nights, some months it was up to 10 nights, and in one month it was only one night. Mr Hill told the Tribunal that it was on a month by month basis and that he thought he had care of [Child 1] over 60 nights in that year.

    [8] Rounded down from 17.8% in accordance with subsection 54D(b) of the Assessment Act.

14. However, the Tribunal is unable to determine, on the evidence before it, whether Mr Hill had previously had care of [Child 1] 23% of the time (which would mean around 85 nights) and it changed on 1 September 2022, or whether this was Mr Hill’s level of care prior to 1 September 2022. The Tribunal also notes the comments by Mr Hill, referred to above, about taking the days in care from text messages, meaning that it cannot be taken to be a full record of the care provided by Mr Hill. All in all, the Tribunal has insufficient evidence before it to determine that there was a change in Mr Hill’s care and, if there was, from what date and what the change in care was. The Tribunal finds that the most appropriate course is to continue to reflect Mr Hill’s care of [Child 1] from 1 September 2022 as 23%.

15. The Tribunal therefore finds that there was no change in care from 1 September 2022, that is, Miss Adams continued to have care of [Child 1] reflected as 77% and Mr Hill 23%.

Issue 2: From when should the existing percentages be revoked (if at all)?

1. As the Tribunal has found that care did not change on 1 September 2022, there is no requirement to revoke the existing care decision.

2. The Tribunal notes that care changed on 1 June 2023 as addressed in the decision of the Tribunal in 2023/BC027184 made on 1 March 2024 (folio 136).

Issue 3: What is the date of effect of this decision?

36.  The Child Support objections officer treated 25 July 2023 as the date on which Miss Adams objected to the care decision made on 5 June 2023. The relevance of the date that Miss Adams objected is that, if an objection to a care percentage decision is lodged more than 28 days after notice of the care percentage decision was served, the date of effect of a decision allowing the objection is the date the objection was lodged.[9]

[9] Subsection 87AA(1) of the Registration and Collection Act.

37.  Miss Adams lodged an objection on 25 July 2023 (folio 104). Whilst it was treated as an objection to Child Support’s decision to reject her application to restart the child support assessment, it is clear from the letter accompanying that objection that what Miss Adams was seeking was review of the decision that she had 0% care of [Child 1] from 1 September 2022.

38.  The Tribunal therefore finds, as Child Support did, that on 25 July 2023 Miss Adams objected to the care decision made on 5 June 2023. This is more than 28 days after the care decision.

1. Subsection 87AA(2) gives Child Support (and therefore the Tribunal) the discretion to extend the 28 days for lodging an objection where there are special circumstances that prevented the person from lodging an objection within the 28 days.

2. The Child Support Guide states,[10] as regards what it will consider “special circumstances”:

   The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from the date of the original decision. Some examples of special circumstances may include:

   ·the parent was seriously ill or had an accident that stopped them from lodging an objection

   ·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

   ·the parent had communication difficulties, including isolation, illiteracy or poor English‑language skills

   ·the parent reasonably relied upon inaccurate or misleading information.

   [10] In topic 4.1.8.

3. Child Support wrote to Miss Adams on 5 June 2023 informing her of its care decision (folio 82). Page 2 of that letter made clear the 28-day period to object. It is unclear from the hearing papers whether this was sent electronically or by post. This impacts the date on which the 28‑day period ended. If it was sent electronically the 28 days ended on 3 July 2023, but if it was sent by mail the 28 days ended on 22 July 2023 as Miss Adams is presumed to have received the letter by 13 June 2023.[11] The Tribunal notes that the Objection Decision dated 30 May 2024 was sent to Miss Adams electronically (see folio 51), however that was nearly a year later.

   [11] As all hard copy letters are prepared and posted from New South Wales, regardless of the State or territory in which the recipient lives, an additional five days is added.

4. It is clear from Child Support’s file that, after the care decision was made on 5 June 2023, there was then what appears to be a series of efforts by Miss Adams to challenge that care decision.

5. Child Support’s record of its decision to reject Miss Adams’s application for a fresh child support assessment (folio 100) refers to a call with Miss Adams on 13 June 2023 in which she said that the care determination was incorrect. It also refers to Miss Adams being advised of her objection rights to the care decision made on 5 June 2023. There does not appear to be a file note of this call.

6. Miss Adams applied for a fresh child support assessment on 16 June 2023, as the care decision on 5 June 2023 led to an end to the child support assessment (folio 86).

1. On 23 June 2023, Miss Adams spoke to Child Support and discussed her application to restart the child support assessment (folio 95). It was discussed with her that if she thought the care decision was wrong she should lodge an objection. Miss Adams indicated her intention to object to the care decision made on 5 June 2023 (folio 95). Child Support discussed with her the evidence she would need to provide. Miss Adams apparently said she did not have time then to make the objection and would lodge it online.

2. On 18 July 2023, Miss Adams’s application to restart the child support assessment was rejected by Child Support (folio 100). Miss Adams subsequently objected to that decision on 25 July 2023 (folio 104). Child Support treated that objection as an objection to the care decision made on 5 June 2023. Noting the reasons given by Miss Adams in that document, that [Child 1] was in her care up to 1 June 2023, the Tribunal finds that the objection lodged by Miss Adams on 25 July 2023 was in fact intended to object to the care decision made on 5 June 2023, as that care decision underpinned the decision to cancel the child support assessment.

3. When the Tribunal asked Miss Adams why she did not object to the care decision made on 5 June 2023 earlier, Miss Adams said that there was confusion as to what she actually needed to do. She also said that Mr Hill told her he was going to retract the evidence he had supplied to Child Support. She said that she did not fully understand the process, was confused and found it quite stressful. The Tribunal notes the reference in Miss Adams’s objection to suffering from stress, anxiety and depression as a result of the care decision (folio 108).

4. Mr Hill did not agree that he had agreed to retract his evidence and drew the Tribunal’s attention to the other correspondence from Child Support to Miss Adams during this period.

5. The Tribunal has considered the matter very carefully and is sympathetic to the issues Miss Adams has raised, However, the Tribunal does not find the matters Miss Adams has raised are sufficient to comprise special circumstances that prevented Miss Adams from lodging her application within 28 days (and reaches that decision whether notice of the Objection Decision was sent to Miss Adams by post or electronically).

6. That means that the date of effect of this decision is the date on which Miss Adams lodged her objection to Child Support’s care decision, which the Tribunal has found was 25 July 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that care of the child [Child 1] should remain reflected as 77% to Miss Adams and 23% to Mr Hill from 1 September 2022.

The date of effect of this decision is 25 July 2023.