Bidmead and Vinod (Child support)

[2021] AATA 2285

Bidmead and Vinod (Child support) [2021] AATA 2285 (18 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC021077

APPLICANT:  Mr Bidmead

OTHER PARTIES:  Child Support Registrar

Ms Vinod

TRIBUNAL:Member C Breheny

DECISION DATE:  18 May 2021

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 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

BACKGROUND

1. Ms Vinod and Mr Bidmead are the separated parents of [Child 1], born March 2005. A child support case has been registered with the (then) Department of Human Services – Child Support (Child Support) since July 2005, and from (at least) 24 May 2015, child support has been payable on the basis that Ms Vinod had 100% care and Mr Bidmead had 0% care of [Child 1]. Mr Bidmead is liable to pay child support to Ms Vinod.

2. On 26 August 2020, Mr Bidmead contacted Child Support and advised that [Child 1] had left Ms Vinod’s care. [Child 1] had been living with her aunty in Melbourne since 25 April 2020. Ms Vinod agreed that [Child 1] was staying in Melbourne, but disputed the care change, as she was still providing financial and emotional support for [Child 1]. On 21 September 2020, a decision was made to accept the care change notification and, as neither parent had care of [Child 1], Mr Bidmead’s child support liability ended on 25 April 2020. This decision created an overpayment for Ms Vinod.

3. On 15 October 2020, Ms Vinod objected to the decision, stating that she always had care of [Child 1] and, in any case, [Child 1] had returned to her home as of [a day in] September 2020. Ms Vinod also provided additional evidence in support of her claims. On 11 March 2021, a Child Support objections officer decided to allow the objection and determined that Ms Vinod continued to provide care for [Child 1] at all times and the care change notification should therefore be rejected.

4. On 23 March 2021, Mr Bidmead applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 18 May 2021. Mr Bidmead and Ms Vinod attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the statement and documents provided by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 13 April 2021 (documents numbered 1–132).

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act provide that a care determination must be made following an application for a child support assessment and requires consideration of the actual, or likely, pattern of care that the parents will have in relation to the children in a particular care period.

3. In this case, records indicate that since 24 May 2015, child support liability had been calculated on the basis that Mr Bidmead had 0% care and Ms Vinod had 100% care of [Child 1]. Records also show that Mr Bidmead contacted Child Support on 26 August 2020 to advise that [Child 1] had not been in Ms Vinod’s care since 25 April 2020 (folio 28).

4. The issue for me to determine is whether a care change occurred on or about 25 April 2020, as notified by Mr Bidmead on 26 August 2020.

Mr Bidmead’s evidence

1. Mr Bidmead stated that he does not dispute that [Child 1] returned to Ms Vinod’s care [in] September 2020, but he believes that Ms Vinod was not providing care in the five‑month period from 25 April 2020 to 24 September 2020. He now has child support arrears for that particular period, and he does not believe that he should have to pay these arrears.

2. Mr Bidmead said that he does not have contact with [Child 1], as he lives in [another state] and [Child 1] was living with Ms Vinod in the Northern Territory. Mr Bidmead stated that he noticed a photo on [social media], which was dated 25 April 2020. The photo showed that [Child 1] was actually living with her aunty (Ms Vinod’s sister) in Melbourne.

3. When he realised that [Child 1] was no longer living with Ms Vinod, he contacted Child Support and they decided that a terminating event had occurred and that his child support liability should cease.

4. Mr Bidmead noted that Ms Vinod provided evidence of some financial support she provided for [Child 1] during that period, but she paid far less than the amount of child support he had been asked to pay her.

5. Mr Bidmead said that he could not comment on any emotional support that Ms Vinod may have provided for [Child 1], but as Ms Vinod did not use all of his child support payments to provide financial assistance for [Child 1], she did not have [Child 1] in her care. The initial decision to terminate his child support liability as of 25 April 2020 was therefore correct.

Ms Vinod’s evidence

1. Ms Vinod submitted that Mr Bidmead would not have known the situation, as he has no contact with herself or [Child 1]. She agreed that [Child 1] moved to Melbourne in January 2020 to stay with her (Ms Vinod’s) sister. The move was organised so that [Child 1] could attend school and study without interruptions. [Child 1] has a brother with special needs and this is very disruptive and stressful for [Child 1], making it difficult to concentrate on her schooling.

2. Ms Vinod noted that she paid for all of [Child 1’s] needs during that period and she was in constant phone contact with her. Unfortunately, the continued “lockdowns” in Melbourne during the height of the COVID-19 pandemic had a detrimental effect on [Child 1’s] mental health. She now suffers from severe depression and Ms Vinod organised [Child 1’s] return to the Northern Territory on compassionate grounds.

3. Ms Vinod argued that she continued to provide care for [Child 1] at all times and there was no care change on 25 April 2020 or on any other date.

Ms Vinod: additional evidence

1. Ms Vinod provided the following evidence in support of her case:

   ·Flight information indicating [Child 1] returned to Darwin [in] September 2020 (folio 67).

   ·Ms Vinod’s application for exemption from quarantine for [Child 1] on compassionate grounds (folio 69).

   ·Lists of payments that Ms Vinod had made to her sister ([Ms A]) between 7 January 2020 to 15 October 2020 (folios 71–73). These payments total $9,813.69 in that period and include regular payments of $125 per week for [Child 1’s] “rent”.

   ·A letter from [Doctor A], dated 17 September 2020 (folio 78), indicating that [Child 1’s] move to Melbourne was facilitated to “provide a more stress free environment for [[Child 1]] away from her special needs brother who is managed in her parents’ home in the Northern Territory”.

   ·A letter from [Ms A] and her partner, [named], dated 4 March 2021, confirming that [Child 1] lived with them between January 2020 and September 2020. They noted that Ms Vinod was “covering all living expenses for [Child 1] and was actively involved in all aspects of care for [Child 1]”. This included daily phone calls and video calls. [Ms A] confirms that Ms Vinod paid regular weekly rent of $125 and reimbursed them for any additional costs in relation to [Child 1’s] care. Ms Vinod was also involved in all matters concerning [Child 1’s] schooling.

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). Child Support’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. In this case, Mr Bidmead disputes that [Child 1] was in Ms Vinod’s care for a period of five months from 25 April 2020 to 24 September 2020. He argued that [Child 1] was living away from Ms Vinod’s home during that time.

3. Mr Bidmead did not provide any additional evidence but argued that Ms Vinod did not provide sufficient financial support for [Child 1] during that period, and she therefore did not have care of [Child 1].

4. I note Child Support’s policy, in regard to care for older children living away from home, is set out in Chapter 2.2.1. It relevantly states:

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.

1. Ms Vinod agreed that [Child 1] was living in Melbourne. She had actually left her home in January 2020, not April 2020, and was living with her aunty so [Child 1] could attend school in a less stressful environment. Ms Vinod provided letters from her sister and [Doctor A] to support her contention.

2. Ms Vinod also provided lists of payments that she had made to her sister to support [Child 1]. These payments included regular weekly payments of $125 to cover general living costs. The evidence indicates that Ms Vinod made payments totalling $9,813.69 or about $1,090 per month in the nine-month period from January to September 2020.

3. I note that Mr Bidmead’s child support payments amounted to about $949 per month at that time (folio 104). Based on the evidence before me, I thus did not accept Mr Bidmead’s argument that Ms Vinod did not provide “adequate financial support” for [Child 1] whilst she was living in Melbourne.

4. Based on all of the evidence before me, I am satisfied that Ms Vinod continued to provide care for [Child 1] and that no care change occurred on 25 April 2020 (as notified by Mr Bidmead) or any other date in 2020. This is the same conclusion as reached by the objections officer, and I therefore affirm the decision under review.

DECISION

The decision under review is affirmed.