Ballard and Smedley (Child support)
[2025] ARTA 621
•13 March 2025
Ballard and Smedley (Child support) [2025] ARTA 621 (13 March 2025)
Applicant: Ms Ballard
Respondent: Child Support Registrar
Other Parties: Mr Smedley
Tribunal Number: 2024/SC028584
Tribunal:General Member R Prasad
Place:Sydney
Date:13 March 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 13 March 2025 at 4:16pm
CATCHWORDS
CHILD SUPPORT – whether there has been a change in the pattern of care – child had left the father’s care – minor departures from the normal care of the child will not constitute a change to the pattern of care – care percentage remains the same – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Ms Ballard (the mother) and Mr Smedley (the father) have had a registered child support assessment for their youngest child. Services Australia – Child Support (Child Support) has collected child support on the basis that the father has had 100% care of the child and the mother has had 0% care since 19 June 2023. These percentages denote the existing percentages of care.
On 9 January 2024, the mother notified Child Support of a change in care on the basis that the child had left the father’s care on 8 August 2023.
On 2 June 2024, Child Support decided to reject the care change notice as there was insufficient evidence that there had been a change in care (the original decision). The mother objected to the original decision on 12 June 2024.
On 12 September 2024, Child Support disallowed the mother’s objection (the objection decision). On 18 September 2024, the mother sought review of the objection decision by the Administrative Appeals Tribunal (the AAT).
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The matter was heard on 24 January 2025. The Child Support Registrar elected not to be represented at the hearing but provided documentation (T1 to T162). The mother appeared by MS Teams audio and provided documentation before and after the hearing (A1 to A52). The father attended the Tribunal and provided documentation after the hearing (B1 to B189).
ISSUES
The relevant issues before me are whether there was a change to the child’s care arrangements, and, if so, the date of effect of the new care determination.
CONSIDERATION
What is required?
Section 49 of the Child Support (Assessment) Act 1989 (the Act) provides that if I am satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for a period (the care period) as I consider to be appropriate in the circumstances, I must determine the percentage of care for the child to be 0%. If an existing determination of a care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period, under section 50, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.
Section 51 of the Act provides the percentage of care must be determined where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with. Section 54 defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement, such as a court order.
The Act, under section 54A, provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person.
Under section 54F of the Act, a determination of an existing care percentage must be revoked if sections 51 and 54G do not apply and there is a change to a person’s cost percentage, which is dependent on a change to the care percentage.
Care determinations must be revoked under section 54G of the Act if a person was to have at least regular care of a child during a care period and has had less than regular care of the child despite the child being made available, a determination of the other responsible person’s percentage of care has been made under section 50 and the other person notified of the care change within a reasonable period. Subsection 5(2) of the Act provides that a person has ‘regular care’ of a child if the person has at least 14% but less than 35% care of the child.
What information has been provided in relation to the care of the child?
The parties have raised various matters but I will only address those that are relevant to the issues before me. For instance, the parents made assertions about the distance of the child’s new residence and whether it was in compliance with court orders. However, I am only reviewing the applicable care percentage and any breach of court orders must be pursued through the courts. There were also references to the father’s assets, but again that is outside the scope of this review. I will also generally refer to events that have taken place in the relevant care period, rather than previous events.
The mother advised that she had agreed for the father to have 100% care of the child on the basis that the child was living with the father. The child has instead been living with her older brother at another house that the father owns. She confirmed that the date the child moved was 3 December 2023, as she had found out through her son on that date. Since the child moved, she has not been medically looked after by the father when the child has had considerable abdominal pain. She provided a referral letter for a pelvic ultrasound on 13 March 2024, a letter from Dr [A] dated 16 April 2024 notes that the child was seen for opinion and management of her lower abdominal pain, and an imaging request and a medical letter show the child had a pelvic ultrasound on 13 May 2024. The father also provided documentation that confirms the child’s admission in hospital in October and November 2024. The mother noted that the child was also missing school as she had no transport to travel to school and was otherwise walking there when she was not in pain. She noted that the child seemed to be also living with her boyfriend and going to school with him, but then also stated that the child and her boyfriend both obtained casual employment and would go to work instead of school. She noted she has received calls from the child’s school regarding her absence.
The mother advised that she had been ensuring the child receives medical attention, by taking time off work and taking her to appointments, although the father had taken her an appointment on one occasion in October 2024, and she has arranged for the child to receive surgery for her medical condition. She has also been providing emotional support to the child. The mother stated that the father cannot claim he has 100% care of the child while the child is living independently, staying at the father’s other property and at her boyfriend’s home, receiving the mother’s care, making her own decisions, and cooking for herself. The mother also provided a timeline which included nights that the child had stayed with her, which appear to be for birthdays, Mother’s Day or to attend appointments. She therefore considers the care percentage should be 50% to both parents, rather than 0% as she had initially stated.
The father confirmed the child has been living in one of his properties with her brother, where the father provides free accommodation, water and facilities, and he pays for all the rates, bills and insurance policies. He provided copies of rate notices, bills and insurance policies which are addressed to him or his son, and he has included handwritten notes regarding repaying the child’s share. The mother instead has asserted that it appears the child was actually paying for half of the bills. She provided a statement from their son dated 14 June 2024 which stated that the child’s share of electricity and water are paid by the father and the child pays for her other expenses herself. The father also stated that he pays for health insurance which includes the child, and provided a health insurance bill and photos of his cards that show the inclusion of the child on his Medicare and health insurance account. He also provided a statement of claim and payment for the child’s post-surgery review and his bank account statements to show he had paid for this and other medical reviews, as well as receipts for medication he has bought the child.
The father stated that he gave all the child support payments to the child and provided a table of his child support payments summarising when payments were withdrawn as cash or transferred, bank statements showing withdrawals after child support payments were received, cash withdrawal receipts, and the child’s bank statement showing deposits that had been made. However, the mother noted that the child’s bank account statements did not reflect that the payments were received consistently and that cash payments were hard to prove. The mother did not believe the child support payments she made were being transferred to the child as the child was also requesting money from her brother and the mother when she was short or had no money from her casual employment or from the money the father gives her, if any at all. She noted she had also given the child her inheritance money held in trust of $5,000 to purchase a car, but it has been used on other things.
The father advised that the child goes to work and school. She has applied for a full time traineeship [position], but if she does not receive that position, she will attend school. He noted that he was not always aware the child was not attending school, and said the child was under a lot of stress due to her medical condition and harassment by a teacher, and so she had a lot of absences but is still attending school. He said that because of his work, he is unable to drive her to school. He said the child has a car, with her driver’s licence being updated to include her new address, goes to work, and sees her friends and her boyfriend. While she lives with her brother, he does not supervise her. He said that she was not living with her boyfriend as his parents were strict, but she was sometimes going to his home after school as he lived close to school and the father would pick her up on those nights. The father disagreed that there has been equal shared care, saying that the mother has provided some support while the child was receiving her medical assessments, but stated the child went to hospital with both parents, sometimes one or the other.
Has there been a change to the care of the child?
I am undertaking a review of the applicable care percentage afresh and am required to consider the actual care undertaken. While undertaking this task, the Act provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in a parent’s care. However, where the child is living separately from a parent, I can consider the following factors outlined in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 in order to determine whether a parent is providing care for a child:
a. 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 extra curricular activities?
b. To what extent does the person make arrangements for others to meet the needs of the child?
c. To what extent does the person pay for the costs of meeting the needs of the child?
d. To what extent does the person otherwise provide financial support for the child?
e. To what extent does the child provide for his or her own needs or have those needs met from another source?
f. To what extent is the child financially independent or financially supported from another source?[1]
[1] Polec at [56].
The sworn evidence of both parties is conflicting. It is not in dispute that the child has been living in one of the father’s properties since 3 December 2023. The mother asserts that the child is living independently, works and is not going to school, makes her own decisions and pays her own rates, bills and other expenses, which the mother assists with, and does not receive any of the child support payment she pays. She also takes her to medical appointments and provides her with emotional support. The father instead says that while the child is working and purchases things, he gives her the child support payments either through bank transfers or cash, he pays for the rates, bills and other expenses relating to his property such that the child is not paying anything, he pays for her health insurance and also takes her to medical appointments and pays for her medical expenses. In this regard, the father provided his bank statements showing transfers or withdrawals of amounts for child support, cash withdrawal receipts, the child’s bank statement showing deposits of amounts, and rate notices, bills and insurance policies either in his name or his son’s name, for which he says he pays the child’s share. A statement from the son indicates that the father pays for the child’s share of electricity and water, and that the child otherwise takes care of her own expenses. The father also stated that the child does attend school although she has had absences due to her medical condition and an issue with a teacher, and she has applied for a traineeship [and] if her application is not accepted, she will continue with school. I accept the mother’s assertions that the father’s evidence does not specifically demonstrate that the child was in the father’s care. However, in the absence of contrary cogent evidence, I am not persuaded there was a material change to the child’s care apart from where she was living.
The mother asserts she has also cared for the child during the care period by ensuring she received medical attention as well as emotional support. I note that while the child was experiencing regular abdominal pain, from the information before me, it appears the mother arranged for medical appointments as required and attended these with the child, as did the father. There were also some overnight visits by the child. However, this does not demonstrate a pattern of care that the mother provided after 3 December 2023. For completeness, I make the following observations. One-off events such as sleeping over at the home would not constitute a change to the pattern of care. The operative word is pattern in this regard. I have reached this conclusion after considering the Child Support Guide at 2.2.1, which states that minor departures from the normal care of the child, such as missing care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination. I note that I can have regard to the Child Support Guide, though I am not bound to follow it.[2] In G v Minister for Immigration and Border Protection [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.
[2] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
In light of the above, I find that the child was in the father’s care from 3 December 2023. Accordingly, the care percentage remains the same with the father having 100% care and the mother having 0% care of the child.
I note that the existing care arrangement was not being followed and therefore section 51 of the Act is not applicable. Further, as the father had not notified of a change in care, section 54G does not apply.
Given sections 51 and 54G do not apply, and the cost percentages have not changed as the care percentages have not changed, pursuant to section 54F, the determination of the existing care percentage must not be revoked.
DECISION
The Tribunal affirms the decision under review.
| Date of hearing: | 24 January 2025 |
| Representative for the Applicant: | Self represented |
| Representative for the Other Party: | Self represented |
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