Bartlett and Fullwood (Child support)

[2024] AATA 2525

Bartlett and Fullwood (Child support) [2024] AATA 2525 (28 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC027247

APPLICANT:  Ms Bartlett

OTHER PARTIES:  Child Support Registrar

Mr Fullwood

TRIBUNAL:Member A Ryding

DECISION DATE:  28 May 2024

DIRECTION TO ALTER DECISION OR REASONS FOR DECISION:

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the following alterations are made to the decision and the written statement of reasons for the decision:

The date in part b) of the decision is altered from 18 May 2023 to read 30 January 2023.

AND

The date at line three of paragraph 75 of the written statement of reasons is altered from 17 May 2023 to read 29 January 2023.

AND

The date at line two of paragraph 76 of the written statement of reasons is altered from 18 May 2023 to read 30 January 2023.

Member A Ryding
17 June 2024

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC027247

APPLICANT:  Ms Bartlett

OTHER PARTIES:  Child Support Registrar

Mr Fullwood

TRIBUNAL:Member A Ryding

DECISION DATE:  28 May 2024

DECISION:

The Tribunal sets aside the decision under review and in substitution decides that:

a)    Ms Bartlett’s care percentage for the child [Child 1] remains 0% from 30 January 2023.

b)    Mr Fullwood’s care percentage for the child [Child 1] is 48%, from 18 May 2023.

CATCHWORDS
CHILD SUPPORT – percentage of care – change in care – nights in care – care other than in nights – existing percentage of care determinations revoked – new determinations made – 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 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 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, Ms Bartlett, and one of the other parties to this application, Mr Fullwood, are the parents of three children, one of whom, [Child 1] (born [in] February 2008), is the subject of a child support assessment relevant to this application.

3. On 10 April 2024, the Tribunal conducted a hearing in this matter by MS Teams audio. Ms Bartlett and Mr Fullwood participated in the hearing. Child Support did not participate and instead relied upon its documents.

4. Before the Tribunal were hearing papers supplied by Child Support, numbered 1 to 93 and documents provided by Ms Bartlett numbered A1 to A45 (together, the hearing papers). Ms Bartlett provided evidence on affirmation and Mr Fullwood provided evidence on oath at the hearing.

5. On 10 April 2024 the Tribunal issued directions to Ms Bartlett and Mr Fullwood pursuant to section 33 of the Administrative Appeals Tribunal Act 1975, requiring the provision of documents and information by 24 April 2024. Those directions were varied by the Tribunal on 1 May 2024, to provide the parties an extension of time to respond, to 17 May 2024 for Ms Bartlett and 24 May 2024 for Mr Fullwood.  

6. In response, Ms Bartlett produced documents marked A44 to A72 and Mr Fullwood produced documents marked B1 to B5.

7. The Tribunal has had regard to all of the documents provided to it and the evidence provided by Ms Bartlett and Mr Fullwood. Reference below is made only to the documents and evidence relevant to this decision.

8. Ms Bartlett and Mr Fullwood have had a registered child support case in relation to [Child 1] since 1 March 2012.

9. On 6 July 2018, the Family Court of Australia made orders providing for the care of Ms Bartlett and Mr Fullwood’s children, including [Child 1] (folio A46). These provided, as regards [Child 1], for the child to reside with her mother and spend time with her father during term time, from Friday after school to Monday morning one week, and from Thursday after school until Friday morning in each alternate week. They also provided for half of all school holidays to be spent with Mr Fullwood as agreed between the parties, with a mechanism provided should agreement not be reached as regards holidays.

10. From 2 November 2020, care was recorded by Child Support as 0% to Ms Bartlett and 100% to Mr Fullwood.

11. On 18 May 2023, Ms Bartlett notified Child Support that [Child 1] had been living with the child’s maternal grandparents and in their care 100% since 30 January 2023 (folio 14).

12. On 6 June 2023, Child Support made a decision to reflect the care of [Child 1] as 0% to Ms Bartlett and 0% to Mr Fullwood (folio 25) from 1 January 2023. This brought to an end the child support case for both parents.

13. On 27 June 2023, Mr Fullwood lodged an objection to Child Support’s decision (folio 34). The objection stated:

    [Child 1]’s residence and home of record remains [redacted]. [Child 1] boards with her grandparents during the week during school terms for purposes of attending school. [Child 1] remains at home for all weekends, sick days, holidays, for medical appointments etc.  I compensate the grandparents for this boarding and transport [Child 1] to and from the grandparents home. I remain financially and parentally responsible for [Child 1] and this is disputed from neither her school nor her grandparents, only her mother whom [Child 1] has not seen nor stayed with for multiple years.

14. On 31 October 2023, a Child Support file note records a call with Mr Fullwood (folio 42). The file note states, “[Mr Fullwood] would like the case restarted as the care of [Child 1] should still be reflected as 100% care to myself.” Mr Fullwood apparently agreed to provide evidence in support by 14 November 2023 but, from the hearing papers, nothing was provided.

15. On 7 November 2023, Ms Bartlett told Child Support that [Child 1] lived with her maternal grandparents, that her brother paid [Child 1]’s school fees and she paid board to her parents and paid all medical bills (folio 47). Ms Bartlett said that she sees [Child 1] regularly and supports her with her faith.

16. On 12 December 2023, Child Support provided its objection decision (the Objection Decision) (folio 5). It varied the underlying determination to reflect the care of [Child 1][1] as 0% to Ms Bartlett and 44% to Mr Fullwood, from 5 February 2023.

    [1]The reference in the Objection Decision to “[Name 1]” is clearly an error (see folio 4), and it should be a reference to [Child 1].

17. On 21 December 2023, Ms Bartlett applied to the Tribunal for review of the Objection Decision. Her grounds of appeal were stated to be:

    A.is disputing CSA's order to make support payments to father of child

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. 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.

5. Subsection 43(1) of the Administrative Appeals Tribunal Act 1975 gives the Tribunal the power to review the decision of the original decision maker, which in this case is the Objection Decision made on 12 December 2023. However, the Tribunal’s power is limited to reviewing this decision. It cannot, by law, review any other issues between the parties.

6. As a consequence, its role is not to examine the history of child care arrangements or any disputes between the parties, nor is it to adjudicate or comment on the quality of care provided to the child. Nothing in this decision should be taken as addressing any of those issues. Nor should it be taken as suggested that either parent does not care for their child in the broader sense.

7. 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)?

CONSIDERATION

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

What is the care period?

1. A “care period”[3] is calculated from the day on which the actual care of a child changed and is stated in the Assessment Act to be “such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

   [3] Defined in subsection 5(1) of the Assessment Act to have the meaning given by paragraph 49(1)(a), subparagraph 49(1)(b)(ii), paragraph 50(1)(a) or subparagraph 50(1)(b)(ii).

26.  The Child Support Guide[4] states that it will:

generally be a 12-month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12-month periods, unless otherwise advised.

[4] 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 does not have legislative effect and is persuasive only.

27.  The care period is used only for assessing whether there is a pattern of care and, if there is, what that pattern is. It does not set the period over which the care assessment applies.

1. In the present case, the evidence supports that the care changed when [Child 1] started living with her grandparents during term time from early 2023. [Child 1] attends [School 1], a private school in South Australia. From the school’s website, Term 1 in 2024 began for high school students on 2 February 2024. It is reasonable to assume that Term 1 in 2023 commenced on or about 2 February 2023. It is reasonable to assume that [Child 1] would have needed a few days to settle in with her grandparents, which makes it reasonable to assume that care changed on the date stated by Ms Bartlett, 30 January 2023. Therefore the Tribunal finds that the care changed on 30 January 2023. 

2. That makes the care period 30 January 2023 to 29 January 2024.

“Care”

1. 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.

2. In this matter, Child Support has determined care by reference to nights in care. On the basis of arrangements whereby [Child 1] boards with her grandparents during the week and lives with her father otherwise, Child Support determined that Ms Bartlett had 0% care of [Child 1] and Mr Fullwood had 44%.

3. However, in some situations it is more appropriate to consider other factors than nights in care. The Child Support Guide states, in section 2.2.1:

   In most cases, it will be relatively clear whether and to what extent a person is caring for a child and care will generally be worked out based on the number of nights that the child is likely to be, or has been, in the care of the person during the care period (CSA Act section 54A). Where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case, based on the extent to which the:

   ·person has control of the child, including having overall responsibility for the child and making

   omajor decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities, and

   oarrangements for others to meet the needs of the child (delegated care)

   ·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

   ·person pays for the costs of meeting the needs of, or otherwise provides financial support for, the child.

   …

   Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves.

4. In Polec & Staker & Anor (SSAT Appeal)[5] 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. 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?

Nights in care

[5] [2011] FMCAfam 959.

1. Ms Bartlett told the Tribunal that [Child 1] had been staying with her grandparents (Ms Bartlett’s parents) since the start of the previous school year, and that she believed [Child 1] lived with them Sunday to Friday.

2. Mr Fullwood told Child Support on 19 June 2023 that [Child 1] lives with her grandparents only during school days, and on weekends and school holidays [Child 1] resides with him (folio 33). Mr Fullwood’s objection dated 27 June 2023 stated that he transports [Child 1] to and from her grandparents’ home (folio 34).

3. Mr Fullwood told the Tribunal that [Child 1] usually went to her grandparents on Sunday evenings.

4. The documents provided by Ms Bartlett include an email from her mother, [Ms A], to [Child 1]’s school dated 1 March 2024 (folios A42 and A43). That email states “she is still residing with us from Monday after school to Friday morning. She gets the bus from school to [Town 1] on Friday and her father picks her up and then gets her back to [Town 1] on Monday mornings!”

5. The Tribunal considers that Mr Fullwood’s evidence (that [Child 1] stayed with her grandparents from Sunday evening) is to be preferred over her maternal grandmother’s evidence (that [Child 1] stayed from Monday nights). In giving his evidence, Mr Fullwood in effect gave an additional night to [Child 1]’s grandparents, which was an admission against interest on his behalf.

6. On the available evidence, the Tribunal finds that during the care period (30 January 2023 to 29 January 2024) [Child 1] resided with her grandparents on Sunday to Thursday nights during term time and the remainder of the time resided with Mr Fullwood.

7. However, as noted above, the Tribunal can take into account other factors when determining care.

Care other than in nights

1. On 7 November 2023, Ms Bartlett told Child Support (folio 47):

   He does not have care of [Child 1].
   [Child 1] resides with my parents at [redacted] in South Australia.
   My brother, [Mr B], pays the school fees for [School 1] and I myself pay my parents the board for [Child 1]. [Child 1]'s recorded address is [redacted], including on Medicare and bank accounts.
   He stated that he is financially and parentally responsible for [Child 1], which is untrue.
   He has not contributed anything for many years.
   I see [Child 1] regularly and support her with her faith.
   He is not meant to have custody of [Child 1] as per Federal Family Court Orders.

   I also pay all medical bills.

2. Ms Bartlett said that she had been paying board to her parents for [Child 1] of around $500 a month, paid by bank transfer around the same day each month. Further, if [Child 1] had medical costs and there was a gap after Medicare had contributed, [Ms A] would let Ms Bartlett know the amount and Ms Bartlett would pay it to her mother, by bank transfer.

3. Ms Bartlett said that she also provides money to [Child 1] whenever she needs it for clothes, shoes, outings or similar. The amounts are usually between $100 to $500 and are paid by bank transfer to [Ms A], as Ms Bartlett told the Tribunal she is currently alienated from [Child 1]. The payments are not always necessarily for [Child 1]’s direct upkeep but can be to assist her with her future and her faith.

4. Ms Bartlett told the Tribunal that she had been paying this money to her parents rather than to Mr Fullwood in child support, and that her parents had told her that Mr Fullwood was not making payments to them for [Child 1]’s upkeep, or not making payments consistently.

5. Mr Fullwood told Child Support in his objection on 27 June 2023 that he remained financially and parentally responsible for [Child 1] (folio 35).

6. Mr Fullwood told the Tribunal that he had been paying [Child 1]’s grandparents board at $50 a week by bank transfer until June 2023. In early 2023 he had told them that they should apply for child support for [Child 1], and that he would then stop paying them board. However, he continued to pay for [Child 1]’s medical expenses and school books.

7. Ms Bartlett told the Tribunal she was not aware that Mr Fullwood had been paying board, and said her mother probably had not asked him for payment.

8. Mr Fullwood agreed that Ms Bartlett’s brother, [Mr B], paid for [Child 1]’s school fees. This is therefore not in dispute. However, it is not relevant to the consideration of the care provided to [Child 1] by her parents during the care period.

9. In a call with Child Support on 11 December 2023, [Ms A] said that she and her husband are responsible for the care and decision making while [Child 1] is with them and when Mr Fullwood has care on the weekends, he makes the decisions (folio 52).

10. [Ms A] said in that call that payments made by Mr Fullwood for [Child 1] were:

    $237 at the beginning of the year for schoolbooks
    2 March 2023 – $300 for board
    2 June 2023 – $200 for board
    28 September 2023 – $70 for medication

    5 December 2023 – $111 for a Dr’s bill

11. [Ms A] said in that call that she was aware that Ms Bartlett deposits money into [Child 1]’s account on a regular basis and that payments made by Ms Bartlett to her parents for [Child 1] were:

    28 August 2023 – $500 for board [the Tribunal notes that this date may be incorrect given the other payment for board in August 2023].
    13 June 2023 – $63 Dr fee
    23 August 2023 – $400 for board

    4 December 2023 – $100

12. The documents provided by Ms Bartlett as regards her contribution to [Child 1]’s care were screen shots of certain transactions on her bank account between 18 June 2021 and 22 February 2024 (folios A53 to A72). Transactions made in the care period (30 January 2023 to 29 January 2024) appear at folios A54 to A62. It was not however a complete record of transactions in that period. Whilst the transaction records do not identify clearly who the recipients of each transfer were nor what the moneys were used for, some refer to “[Reference 1]…” which the Tribunal assumes is a reference to [Child 1]. Some refer to “[Reference 2]…” which the Tribunal assumes is a reference to Ms Bartlett’s parents. Using these assumptions (which the Tribunal considers it is reasonable to do), the Tribunal can see that from 13 September 2023, Ms Bartlett paid her parents:

    ·      $63 on 13 September 2023;

    ·      $400 on 23 October 2023;

    ·      $500 on 7 December 2023;

    ·      $563 on 24 January 2024.

1. These are broadly supportive of [Ms A]’s evidence. There is also evidence of at least one payment to [Child 1], of $50 on 7 December 2023.

2. Mr Fullwood provided a spreadsheet of costs paid by him to [Child 1]’s grandparents between 6 February 2023 and 8 March 2024 (folio B4). These support the payments listed by [Ms A] above, as well as an additional payment of $200 in April 2023 and $80 for camp food in November 2023.

3. Mr Fullwood provided submissions in respect of Ms Bartlett’s documents (folio B5) but these do not raise anything additional to the Tribunal’s review of the documents.

4. The evidence before the Tribunal supports that, up until mid-2023, Mr Fullwood was paying modest board for [Child 1] to her grandparents and that, thereafter, Ms Bartlett paid board. It also supports that, from time to time both parents would pay [Child 1]’s grandparents for additional expenses.

5. The fact that some of the costs of [Child 1]’s care whilst at her grandparents were contributed to by both Ms Bartlett and Mr Fullwood does not however assist the Tribunal in determining in whose care [Child 1] was during the care period. Further, given the amount of the payments made by both parents to the maternal grandparents, the Tribunal is not satisfied that [Child 1] was in either parent’s care whilst residing in her maternal grandparents’ home (as opposed to being in her maternal grandparents’ care).

6. [Ms A] told Child Support that, when [Child 1] lives with her grandparents, [Ms A] and her husband are responsible for [Child 1]’s care and make the decisions and that when she is with her father, he is responsible for her care and makes the decision. This supports that nights in care is the appropriate method to use to determine care.

7. Therefore on the available evidence, the Tribunal finds that nights in care remains the most appropriate method for determining care during the care period.

Percentage of care

1. The Tribunal has already found that during the care period (30 January 2023 to 29 January 2024) [Child 1] resided with her grandparents on Sunday to Thursday nights during term time and the remainder of the time resided with Mr Fullwood. That is, [Child 1] resided with Mr Fullwood 2 nights a week in term time and all of the school holidays.

2. Generally, it is assumed that there are 40 weeks of term time and 12 weeks of school holidays. The Tribunal anticipates that this is the approach that Child Support has taken in calculating 164 nights in care for Mr Fullwood and a care percentage of 44%.[6]  

   [6] (2 x 40) + (12*7) = 164/365 = 44%.

3. However, private schools often have different term times than government schools and more holidays. The Tribunal has considered the information publicly available as regards [School 1]’s school year and considers that the most appropriate method of calculating nights in care is by reference to that school’s term times. The Tribunal considers it reasonable to assume that the term dates in 2023 were the equivalent of term dates in 2024, and therefore finds to that effect. Using the 2024 term dates published on the school’s website as a guide,[7] the Tribunal finds that there were 38 weeks of term time in 2023. The Tribunal has found that [Child 1] stayed with her grandparents five nights a week during term time, which makes her nights with her grandparents total 190 nights.

   [7] [Source redacted]

4. The Tribunal therefore finds that, in the care period, [Child 1] spent 190 nights in care of her grandparents and the remaining 175 nights in the care of Mr Fullwood.

5. That would give Mr Fullwood a care percentage of 48%. The Tribunal therefore finds that Mr Fullwood had care of [Child 1] 48% of the time. The Tribunal notes that this is higher than Child Support’s figure, which is because the Tribunal has used [School 1]’s dates rather than government school dates.

6. The Tribunal finds that, when [Child 1] was not in her father’s care, she was in her grandparents’ care and not in her mother’s care. The care percentages are therefore 0% to Ms Bartlett and 48% to Mr Fullwood, from 30 January 2023.

Issue 2: From when should the existing percentages be revoked?

1. The Tribunal has found that care changed on 30 January 2023.

2. Prior to that care change, care was reflected as 0% to Ms Bartlett and 100% to Mr Fullwood. That existing care determination in respect of Mr Fullwood therefore needs to be revoked.

3. As Ms Bartlett’s care percentage has not changed, there is no requirement to revoke it.

4. There are various alternative sections of the Assessment Act that address revocation but, in this case, the applicable section is section 54F.

5. Revocation under section 54F is only available where revocation under section 54G of the Assessment Act is not available. A requirement of section 54G is that one or other parent had, under the existing care percentage determinations, at least “regular care” of the child (14%), but has had no or less than regular care despite the other parent making the child available. That is not the case here, and therefore revocation under section 54G is not possible.

6. The other requirements of section 54F are:

• The existing percentage of care was determined in accordance with sections 49 or 50 of the Assessment Act. In the present case, Child Support made its determination in accordance with section 50.

• Child Support is notified or becomes aware that the actual care does not correspond with the person's percentage of care for the child under the existing determination. This occurred, according to Child Support’s records, on 18 May 2023 (folio 14).

• If a new care percentage determination was to be determined under either sections 49 or 50 of the Assessment Act, it would change the person's cost percentage. A decrease in Mr Fullwood’s care percentage determination from 100% to 48% means that his cost percentage changes from 100% to 50%.[8]

  [8] Section 55C of the Assessment Act.

1. Once the requirements of section 54F are met (as they are here), the Tribunal must revoke the existing determinations.

2. Therefore the Tribunal finds that the existing care percentage determination of 100% to Mr Fullwood is revoked under section 54F of the Assessment Act and replaced by the new care percentage determination of 48% to Mr Fullwood.

3. From Child Support’s internal records, the Tribunal finds that the notification of change was made on 18 May 2023.

4. As the date of notification was more than 28 days after the change of care day[9] (30 January 2023), the Tribunal finds that the revocation of the father’s existing care percentage takes effect from 17 May 2023.

   [9] Where an objection is lodged within 28 days, under paragraph 54F(3)(a) of the Assessment Act, the relevant date is the date of notification. Where notification did not occur within time, the mother and father will have different revocation days depending on whether their care percentage determination has increased or decreased, under paragraph 54F(3)(b).

5. This means that Mr Fullwood’s new percentage of care determination takes effect from 18 May 2023.

DECISION

The Tribunal sets aside the decision under review and in substitution decides that:

a)    Ms Bartlett’s care percentage for the child [Child 1] remains 0% from 30 January 2023.

b)    Mr Fullwood’s care percentage for the child [Child 1] is 48%, from 18 May 2023.