Awford and Lightbody (Child support)

[2022] AATA 1558

Awford and Lightbody (Child support) [2022] AATA 1558 (26 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023224

APPLICANT:  Mr Awford

OTHER PARTIES:  Child Support Registrar

Mrs Lightbody

TRIBUNAL:Member S Letch

DECISION DATE:  26 April 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – decision under review affirmed

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 the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

1. Mr Awford and Mrs Lightbody are the parents of [Child 1] and [Child 2]. This matter concerns a decision by the Child Support Agency (CSA) to record care of the children as 100% to Mrs Lightbody from the beginning of the case on 8 August 2018.[1]

   [1] The CSA decided care should be so recorded from 10 February 2018, before Mrs Lightbody’s application for a child support assessment on 8 August 2018. In the Tribunal’s opinion, the CSA had no business making a care determination for any period prior to 8 August 2018.

2. It is convenient by way of background to set out some extracts from the objections officer’s decision dated 2 February 2022:

   DECISION UNDER REVIEW

   Our decision made on the 27 August 2018, to reflect the care of [Child 1] and [Child 2] as 100% to Mrs Lightbody and 0% to Mr Awford from 10 February 2018, notified and effective on the assessment from date Start of liability, 8 August 2018.

   Mr Awford has objected to this decision because he believes care should have been recorded as 50/50 shared care.

   …

   On 24 August 2018, we contacted Mr Awford to advise of Mrs Lightbody’s application to register for child support. Mr Awford confirmed the parent relationship details as follows:

   Lived together dates: 9 July 2001 to 10 February 2018

   Mr Awford advised both he & Mrs Lightbody lived at the same address; Mrs Lightbody lived upstairs and he lived downstairs.

   On 27 August 2018, we made the decision to accept Mrs Lightbody’s application for a child support assessment, reflecting the care for [Child 1] and [Child 2] as 100% to Mrs LIghtbody and 0% to Mr Awford notified and effective on the assessment from start date of liability, 8 August 2018.

   Letters were issued to both parties.

   On 17 December 2021, Mr Awford lodged an objection to this decision. Mr Awford believes the care is incorrect and stated that care should be 50/50 as both parties were separated, but living under the  same roof.

   On 20 December 2021, we contacted Mrs Lightbody to discuss Mr Awford’s objection. Mrs Lightbody stated that the mortgage was in Mr Awford’s name and as a result he paid the mortgage repayments and utility costs, but Mrs LIghtbody purchased everything for the children, including their meal-preparation, groceries, medical, dental and extra curriculum activities i.e. sports etc.

   Mrs Lightbody stated that either she or Mr Awford would reside in the camper-van on the property and due to Mr Awford's usual work schedule, she did all meal preparations for the children.

   Mrs Lightbody stated she covered all costs for the children, including the school costs, medical and dental, and sporting costs.

   …

   In this case, we are satisfied that there has not been sufficient information provided to suggest that Mr Awford had 50% care of [Child 1] and [Child 2] from 8 August 2021.

   We have made the decision to reflect the care of [Child 1] and [Child 2] as 100% to Mrs Lightbody and 0% to Mr Awford from 10 February 2018, notified and effective on the assessment from date start of liability, 8 August 2018.

   …

3. Mr Awford and Mrs Lightbody participated in the Tribunal’s hearing by conference telephone.

4. In summary, Mr Awford’s case is that care should be recorded as “50/50”. He said he did not know in 2018 that he was required to “record everything”, or that “it was a competition”. Mr Awford said the relationship had “gone into hardship”, and the CSA became involved. He said he was working full-time – so naturally, Mrs Lightbody would look after the children, including taking them to school and to appointments. He described it as a “normal” family household, including provision by him of financial support. He said he was “old school”. He  “put a roof over the children’s heads” and purchased other things as required to encourage social activities. He said he “thought he was doing the right thing to keep things going”. Mr Awford accepted he had advised the CSA on 24 August 2018 that the couple had separated and that Mrs Lightbody had 100% care; however, he suggested he had been “manipulated” and that Mrs Lightbody had knowledge of the system and was “working things to her advantage”. When letters from CSA came in, Mr Awford said Mrs Lightbody would tell him “not to worry about it as they had a private collection agreement”. Mr Awford said he trusted Mrs Lightbody, and now feels betrayed, suggesting she had been “setting herself up for her future”.  

5. Mrs Lightbody told the Tribunal that she did everything for the children, and paid for all food, medical and other expenses. She was working for [Employer] at the time. Mr Awford paid the mortgage as the house was solely in his name, and claimed the home to be “his”. He paid utility bills, including internet, which Mrs Lightbody said she accepted in lieu of Mr Awford’s assessed child support liability.  Mrs Lightbody said she fed the children, and would take them to and from school; as Mr Awford was a shift worker, he was either asleep or at work. Mrs Lightbody said Mr Awford’s claim that there had been a resumption of the relationship was “rubbish”, pointing to the legal proceedings. Mr Awford received and read all the correspondence from CSA and was fully aware of the assessment; he spoke to the CSA in August 2018 and advised them of the situation. Mrs Lightbody said Mr Awford had recently quit his job to impact the child support assessment – she suggested he is now attempting to “make her life difficult” by attempting to go all the way back to 2018.

6. Both parties raised a number of subsequent and more recent events involving court processes and violence orders which were not directly relevant to the issue of the pattern of care for the children in August 2018.

7. This assessment is a “point in time” assessment. The Tribunal must determine the pattern, or likely pattern, of care on 8 August 2018, and not any other date. Any subsequent or more recent changes to the pattern of care are the subject of separate notifications, and separate decisions. The Tribunal also observes that if it is Mr Awford’s position that at the time of the application for child support, or any subsequent time, there was a resumption of the relationship, that is an entirely separate matter to the care decision in this review. The Tribunal observes that a resumption of a “member of a couple” arrangement for six months or more is a “terminating event” for child support purposes: section 12 of the Child Support (Assessment) Act 1989. Mr Awford is at liberty to approach the CSA to ask them to consider whether such an event occurred at any material time (or indeed that the case should never have been accepted in the first instance).[2]

   [2] As Mr Awford did not object to the decision on 27 August 2018 to accept Mrs Lightbody’s application for a child support assessment within 28 days, he would require an extension of time to object, which would be a matter for the CSA to determine in the event Mr Awford sought an extension.

8. On 24 August 2018 (folio 20 of the CSA materials), the following file note was made by CSA recording the conversation on that day with Mr Awford:

   Child Relationship Additional Information

   Mr Awford confirmed the birth is registered for both children [Child 1] & [Child 2] with both Mrs Lightbody & Mr Awford named as a parent.

   Parent Relationship Details

   Lived together dates: 09/07/2001 to 10/02/2018

   Mr Awford advised both he & Mrs Lightbody lived at the same address; Mrs Lightbody is upstairs and he lives downstairs.

   CARE: 100% Lightbody

   DOE: 10/02/2018

   DON: 08/08/2018

   Additional Employment Details

   Private collect

   Completed ITD 2017/2018

9. Mr Awford does not dispute that record; however, he has attempted to explain that away by suggesting he had been “manipulated” and placed trust in Mrs Lightbody who had prior experience with CSA.

10. The Tribunal does not find Mr Awford’s attempts to explain that away at all compelling. There is no sensible reason for Mr Awford to have made those representations at the time for any other reason other than he thought those representations to be true. The Tribunal formed an impression that Mr Awford’s reflections on those past events are disingenuous and self-serving.

11. The Tribunal generally found Mrs Lightbody’s evidence consistent and credible. To the extent of any inconsistency, the Tribunal preferred Mrs Lightbody’s account of events.  

12. The Tribunal considered the best evidence of the pattern of care on 8 August 2018 to be Mr Awford’s own contemporaneous representation to the CSA on 24 August 2018 that Mrs Lightbody had 100% care of the children. The Tribunal finds that Mrs Lightbody was meeting most, if not all, of the primary expenses for the children, and was exercising parental control and care over the welfare of the children. In accordance with the private collection agreement, she accepted the provision of accommodation by Mr Awford in the house (which was in his sole name) and payment of utility bills (which the Tribunal observes was likely much less than the almost $7,000 per annum Mr Awford had been assessed to pay).

13. As the Tribunal has reached the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.