Allman and Setford (Child support)

[2019] AATA 1197

Allman and Setford (Child support) [2019] AATA 1197 (29 March 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015265

APPLICANT:  Mr Allman

OTHER PARTIES:  Ms Setford

Child Support Registrar

TRIBUNAL:Member H Schuster

DECISION DATE:  29 March 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether either parent had care of the child - existing percentage of care determinations revoked and new determinations made - decision under affirmed

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.

REASONS FOR DECISION

BACKGROUND

1. This review is about the decision made by the Department of Human Services (Child Support) on 28 September 2018 disallowing an objection to a decision made on 9 March 2017 by the Child Support Registrar (which gave effect to a decision made by the Department of Human Services (Centrelink)), that from 17 February 2017 Mr Allman had 0% and Ms Setford had 100% care of [Child 1].

2. Mr Allman and Ms Setford are the parents of [Child 1] (born in 2004) in respect of whom there has been a child support assessment in place since 2004. From 25 February 2011 Mr Allman and Ms Setford had shared care of 50% each in respect of [Child 1].

3. On 17 February 2017 Ms Setford reported a change of care to Centrelink, stating that Mr Allman had not had care of [Child 1] since September 2016.

4. On or about 20 February 2017 Centrelink determined that Ms Setford had 100% care of [Child 1]. That information was transmitted to the Child Support Registrar and was used in the assessment of child support from 17 February 2017.

5. On 9 March 2017 Mr Allman was advised that the Child Support Registrar had made a change to the percentage of care for [Child 1] with effect from 17 February 2017 on the basis that he had 0% care and Ms Setford had 100% care. The effect of the decision that Mr Allman’s commenced being liable to pay child support to Ms Setford of $414 per year from 17 February 2017. The notice stated that Mr Allman had 28 days to object to the decision.

6. On 8 August 2018 Mr Allman objected to the determination made by the Child Support Registrar on 9 March 2017, contending that [Child 1] had not been in Ms Setford’s care, but lived with another adult.

7. On 28 September 2018 the Child Support Registrar disallowed Mr Allman’s objection. The objection officer found that Ms Setford continued to provide 100% care of [Child 1] notwithstanding the evidence that [Child 1] had lived for a period of time in the home of her maternal aunt.

8. Mr Allman lodged his application for review at the Administrative Appeals Tribunal on 19 October 2018.

9. The Tribunal conducted a hearing on 14 January 2019 but adjourned the proceedings to allow Ms Setford to be invited to be made a party to the matter. After receiving Ms Setford’s application, the Tribunal made an order on 11 February 2019 to add her as a party to the proceeding. The hearing was reconvened on 29 March 2019, with both Mr Allman and Ms Setford attending by telephone and giving evidence on affirmation.

10. The Tribunal had as evidence before it a bundle of documents prepared by an officer of the Child Support Registrar and containing 87 pages. Ms Setford provided additional documents, numbered B1-B11.

11. Mr Allman sought to lodge as evidence with the Tribunal an electronic *.amr file, which he stated was a recording of his daughter. He said the recording was intended to prove that the child did not live with the mother for an extended period of time. The Tribunal declined to accept the file into evidence.

12. Child support proceedings are administrative matters to determine the amount of financial support one parent should provide to the other for the care of the child. They are not proceedings in which it is generally appropriate to take evidence from a child that would tend to make them a witness for or against either parent. In addition, the evidence relevant to the central issue, namely actual care of the child, could be given by other means and did not require any direct statement from the child. More significantly, the factual matter sought to be established by the evidence, namely that the child had lived with her maternal aunt, was not disputed. 

ISSUES AND OPERATION OF THE LAW

1. The central issue in this case is whether Ms Setford was providing actual care to [Child 1] in the care period from February 2017, specifically, whether such care was provided despite the fact that [Child 1] was not living in Ms Setford’s home for an extended period of time.

2. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

3. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act.  The formula contains a number of elements called “particulars of the assessment”.  This includes the “cost percentage” for each parent in relation to each child determined under section 55C of the Act.

4. The “percentage of care” is determined under Division 4 of Part 5 of the Act and must be based on the actual care a parent has of the child.

5. What constitutes having “care” of a child is not defined in the Act. However, the policy sets out some guidelines to assist decision makers in cases where a parent asserts they are providing actual care even though the child is not living with them. Chapter 2.2.1 of the Child Support Guide sets out some relevant considerations in relation to older children living away from the parental home:

   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. 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.

CONSIDERATION

1. There were no court orders in place in February 2017 in relation to [Child 1]’s care. Mr Allman made an application for parenting orders to the Federal Circuit Court in 2018. On 22 August 2018, after Mr Allman failed to appear in court, the court made ex parte orders granting sole parental responsibility to Ms Setford. Those orders, being made after the date from which the change of care took effect, are not relevant to the Tribunal’s consideration in this matter.

2. The Tribunal is satisfied that the care for [Child 1] must be determined on the basis of actual care provided by either the parents or a third party as at 17 February 2017 and the care that was likely to occur in the period after that.

3. In this case there is no dispute that as at 17 February 2017, the 50/50 care arrangement which the parties had previously maintained was no longer in effect. It was also not disputed by Mr Allman that he did not have any care for [Child 1] after September 2016, and that he did not have care of [Child 1] when the change of care took effect, on 17 February 2017.

4. Thus, the Tribunal is satisfied that the appropriate care percentage in relation to Mr Allman for the care period from 17 February 2017 was 0%.

5. Mr Allman’s contention was that while he did not have care of [Child 1], neither did Ms Setford. His contention was that [Child 1] was in the care of her maternal aunt, [Ms A].

Mr Allman’s evidence

1. Mr Allman provided the following evidence to the Child Support Registrar:

   ·       The document appears to be part of the information notice to court drafted by the police, in which an order for the protection of [Ms A] from Mr Allman was sought in the Local Court of NSW. As the document refers to an upcoming court date on 18 May 2017 the Tribunal concludes it was drafted between February 2017 and May 2017.  It relevantly states that “In February 2017 [Mr Allman’s] daughter [Child 1] started to reside at [Ms A’s] home due to ongoing issues with the defendant and her mother SETFORD. [Mr Allman] has not had contact with [Child 1] since Father’s Day 2016”.

   ·       He also provided a letter, dated 3 May 2018, addressed to [Ms A] from the principal of [Child 1]’s school congratulating [Child 1] on academic diligence.

2. Mr Allman at the hearing said that Ms Setford was not providing care to [Child 1] from February to November 2017 because, he said, [Child 1] lived with her maternal aunt.

3. He acknowledged that he had not seen [Child 1] in the relevant period but said that money Ms Setford received for [Child 1] “did not go to [Child 1]”.

4. The Tribunal notes that child support payments made by one parent to another for the care of the child were for use of the receiving parent in meeting the costs of the child. Mr Allman said his concern was not in relation to the child support payments, which he said should be irrelevant to the Tribunal, but rather that Ms Setford received family tax benefit (FTB) for [Child 1] while [Child 1] was not in her care. He asked the Tribunal to investigate. The Tribunal noted that the matter before it did not concern Ms Setford’s eligibility for FTB but that the decision about the percentage of care made by the Tribunal would affect any eligibility for FTB for [Child 1] which Ms Setford may have had.

5. The Tribunal asked Mr Allman what evidence he relied on to support his allegation that the child was not financially supported by the mother. He primarily relied on the fact that the child lived with [Ms A].

6. Mr Allman also stated that Ms Setford refused to make certain purchases or pay for certain costs. For example, Ms Setford refused to purchase a new phone for [Child 1]. He himself paid over $1,000 for a new phone for [Child 1] as well as purchasing some school clothes which [Child 1] wanted but Ms Setford refused to pay for. He alleged that Ms Setford refused to pay for an Opal card to allow [Child 1] to travel on public transport.

7. He alleged that [Child 1] was not adequately provided for by Ms Setford.

8. The Tribunal asked whether he had any direct knowledge of the agreement between Ms Setford and [Ms A] in relation to [Child 1]’s care in 2017, he said that he did not. The Tribunal asked whether he had evidence of who paid for [Child 1]’s expenses in 2017, if not Ms Setford. He did not but appeared to suggest that no one did or that she was inadequately supported.

9. He provided no statements from third parties as to the financial or decision making arrangements for [Child 1] in 2017.

Ms Setford’s evidence

1. Ms Setford verbally responded to this evidence to the Child Support Registrar on 27 September 2018, and an officer noted:

   Ms Setford stated they went to court and there is an order which states that Mr Allman is not have contact with [Child 1]. Ms Setford stated that she is fully responsible for [Child 1]. [Child 1] did live with her aunt for a little while but this was only temporarily however she still paid for everything and was involved with day to day decisions.

2. Ms Setford stated that she had had difficulties with disciplining [Child 1], who was 13 years old in 2017, mostly in relation to the use of electronic devices and maintaining a regular sleep pattern. In that context, her sister [Ms A] had offered to let [Child 1] stay with her to give their relationship a break. She did not recall exactly how long [Child 1] stayed with [Ms A] but believed it was only for the first two school terms in 2017. She did not believe the arrangement lasted for nine months.

3. The arrangement ended because [Child 1]’s behaviour continued to be challenging and [Child 1] returned to Ms Setford’s home. Ms Setford also stated that [Child 1] stayed with her maternal grandparents from time to time.

4. The arrangement with [Ms A] was not intended to be permanent. Ms Setford denied that there was any intention that [Ms A] would be financially or legally responsible. She did not regard the arrangement to involve any loss of her own parental responsibility for [Child 1]. Ms Setford continued to be responsible for [Child 1] in respect of decisions made about her schooling and other aspects of her care. There had been no suggestion that [Ms A] be given formal parental responsibility, would seek FTB payment or would seek child support from the parents.

5. During the period while she lived with [Ms A], [Child 1] generally came home for dinners and on weekends. Ms Setford said she continued to take [Child 1] shopping for clothes and to medical appointments. If anything happened with [Child 1], [Ms A] would contact her. [Child 1] continued to be on Ms Setford’s Medicare and health insurance. Despite the issues between them she said she continued to be close to her daughter and would see her daily after school before [Child 1] went on to her aunt’s home. Ms Setford continued to regard [Child 1] as part of her household.

6. Ms Setford rejected the allegation that she did not provide for [Child 1]’s needs and said that she continued to be financially responsible for anything [Child 1] needed while living with her aunt. She paid school related expenses and other major purchases. She also had arranged to reimburse her sister for [Child 1]’s expenses. She provided copies of bank statements which showed several transfers of $200 in March, April and May 2017 to [Ms A]. Major purchases were made directly by Ms Setford. She had asked her sister to advise her of any costs incurred for [Child 1]. She stated that the transfer of $200 was not a regular monthly payment but intended to compensate her sister for any costs incurred. Her sister told her however that she did not require regular cash amounts as she did not feel that providing [Child 1] with regular meals was significant.

7. Ms Setford said [Child 1]’s school was informed of her change of address but she stated she later changed the address again. She did not dispute that the school principal wrote to [Ms A] in May 2018 but said there had been other instances where the school had sent letters to [Ms A] after the address had been changed to Ms Setford’s address.

8. She stated that [Child 1] had an Opal card which she could not recall having to pay for. She believed that [Child 1] received free travel. 

Overall assessment of care

1. There appears to be no dispute between the parties that [Child 1] spent a number of months living with her maternal aunt, [Ms A], in 2017. Mr Allman suggests the period was at least nine months; Ms Setford said it was a much shorter period.

2. The Tribunal is satisfied that [Child 1] did stay with her maternal aunt, and possibly her grand-parents, for months or weeks at a time during a period when she was not getting on with her mother.

3. The Tribunal accepted Ms Setford’s evidence, which was to some extent corroborated by her bank statements, that she provided financially for [Child 1]. The Tribunal was satisfied that she was a credible witness.

4. However, the Tribunal also finds that where [Child 1] was physically located is only part of the aspect of care provided by a person. It is not uncommon for parents to make arrangements for an older child to stay with another family member for periods of time while when there are relationship problems.

5. The Tribunal accepts that Mr Allman, having no direct contact either with [Child 1], [Ms A] or Ms Setford during the relevant periods, cannot be in a position to have definitive proof of the arrangements for [Child 1]’s care in the relevant period.

6. However, even taken at their highest, his allegations against Ms Setford, particularly that she did not financially support [Child 1], are not borne out by the facts.

7. The Tribunal accepts Ms Setford’s evidence that her sister was happy to provide meals to [Child 1] without seeking direct reimbursement. But Ms Setford did provide cash support to [Ms A], through bank transfers. The Tribunal also accepts the evidence that Ms Setford would continue to make major clothing purchases or pay school related expenses directly.

8. More importantly, there is no evidence that [Ms A] was solely financially responsible for [Child 1]’s care and all her expenses. This does not appear to be a case where one parent relinquishes all control of a child to another family member. Significantly, [Ms A] sought no parental orders, did not intervene in the case brought by Mr Allman in relation to parenting orders and did not seek to claim family tax benefit or child support in respect of [Child 1]. There was no evidence of [Ms A] exercising any particular parental right in relation to [Child 1] during the period.

9. The Tribunal utterly rejects Mr Allman’s contention that no money was spent on [Child 1]: there no evidence of neglect or other indicators that [Child 1] was materially deprived in 2017.  Examples of a refusal to support [Child 1] cited by Mr Allman, such as refusal to purchase a new phone or refusal to purchase the clothes chosen by the child, appear to fall squarely into the range of expected disagreements between teenagers and parents. They are not evidence of Ms Setford’s refusal to financially support her daughter.

10. The Tribunal was satisfied, on the balance of probabilities, that Ms Setford supported [Child 1] financially and continued to have an active involvement in [Child 1]’s life, in terms of providing for her, spending time with her and making decisions for her despite living for periods with her aunt. The Tribunal finds that Ms Setford provided 100% of the care for [Child 1] as at 17 February 2017.

DECISION

The decision under review is affirmed.