Bloomer and Newhouse (Child support)

[2023] AATA 2953

Bloomer and Newhouse (Child support) [2023] AATA 2953 (16 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC025861

APPLICANT:  Mr Bloomer

OTHER PARTIES:  Child Support Registrar

Ms Newhouse

TRIBUNAL:Member F Staden

DECISION DATE:  16 August 2023

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 – refusal to revoke the existing percentage of care determinations – date of effect provisions - 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 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. Mr Bloomer and Ms Newhouse are the separated parents of [Child 1], born 2008. There has been a child support assessment in this case from 6 June 2013, with Mr Bloomer being the parent liable to pay child support. Ms Newhouse opted for collection of child support by Services Australia – Child Support (Child Support) from 28 June 2013.

2. There are 17 March 2016 court orders in relation to the care of [Child 1]. Under those orders, [Child 1] is to live with Ms Newhouse and spend time with Mr Bloomer as set out in the court orders. In the period immediately prior to the period under review here, Mr Bloomer’s care percentage for [Child 1] was recorded as 27% and that of Ms Newhouse as 73%.

3. On 4 December 2022, Mr Bloomer informed Child Support that from 2 December 2022 his care percentage for [Child 1] was 44% and that of Ms Newhouse was 0%. Mr Bloomer stated that Ms Newhouse had left for [Country 1] on approximately 1 December 2022 and noted that when [Child 1] was not in his care, he was in the care of his half-sister.

4. After several unsuccessful attempts to contact Ms Newhouse, on 8 January 2023 a Child Support officer decided to accept Mr Bloomer’s application for a new determination of care percentages from 2 December 2022, finding that Mr Bloomer’s care percentage for [Child 1] was 44% and that of Ms Newhouse was 0%.

5. On 31 January 2023, Ms Newhouse lodged an objection to the 8 January 2023 decision.

6. On 24 March 2023, an objections officer allowed Ms Newhouse’s objection and refused Mr Bloomer’s application for a change to the care percentages for [Child 1] from 2 December 2022.

7. On 27 March 2023, Mr Bloomer applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision. 

8. A hearing was held on 16 August 2023. Mr Bloomer and Ms Newhouse gave sworn evidence by MS Teams audio. At hearing, the tribunal had before it documents provided by Child Support (226 pages), copies of which were sent to all parties before the hearing. Prior to the hearing, Mr Bloomer provided the tribunal with additional material (pages A1 to A6), a copy of which was provided to all parties.

9. Relevant evidence before the tribunal is referred to in the consideration below.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, the Australian government’s online technical and policy guide to the administration of the child support scheme.

2. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent or non-parent carer in relation to each child.

3. Child Support decides care percentages in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide a care percentage for each parent or non-parent carer when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require Child Support, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Centrelink are informed otherwise.

5. The concept of care is not defined in child support legislation. In Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec) the Court stated:

   In my view, in determining whether and to what extent a person has care of a child for the purposes of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   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 extracurricular 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?

6. The key issue to arise in this case is:

   ·     Did Mr Bloomer’s likely pattern of care for [Child 1] change from 2 December 2022?

CONSIDERATION

Did Mr Bloomer’s likely pattern of care for [Child 1] change from 2 December 2022?

1. When Mr Bloomer informed Child Support on 4 December 2022 that there was a change to the pattern of care for [Child 1] from 2 December 2022, Ms Newhouse was still in Australia and [Child 1] was in her care. Ms Newhouse left to travel overseas on 8 December 2022 and [Miss A], Ms Newhouse’s [age]-year-old daughter and [Child 1]’s half-sister, temporarily took on Ms Newhouse’s caring responsibilities for [Child 1].

2. Mr Bloomer explained, and Ms Newhouse confirmed, that the parents do not communicate directly or through [Miss A] at all; their relationship is such that it is not possible for them to even email or text each other. Any communication that does take place is through [Child 1].

3. It was against this background of non-communication that, on the basis of a [social media] post, Mr Bloomer formed the view that Ms Newhouse was overseas from 2 December 2022. He accepts on the evidence that this was not the case. However, Mr Bloomer noted that because of communication problems he did not know how long Ms Newhouse would be overseas and stated that Ms Newhouse had previously been absent for at least one period of several months.

4. It is accepted that Mr Bloomer had care of [Child 1] for the two nights of 9 December 2022 and 10 December 2022 and then took him into his care again on 22 December 2022. There was some confusion about when [Child 1] then returned to Ms Newhouse’s family home and the care of [Miss A]. On balance, the tribunal found that [Child 1] most probably returned on 29 January 2023, a Sunday, and was there when Ms Newhouse returned on 30 January 2023.

5. The tribunal put it to Mr Bloomer that under the 17 March 2016 court orders, his care for [Child 1] in the period of Ms Newhouse’s absence would likely have consisted of one weekend and the second half of the school holidays. Thus, the only change to the pattern of care from 2 December 2022 was that Mr Bloomer provided an additional three weeks of care. Mr Bloomer agreed that this was the case.

6. Mr Bloomer’s essential argument is that he should not have to pay child support for [Child 1] when Ms Newhouse is out of the country as Ms Newhouse is not then providing [Child 1] with care and he is providing more care for [Child 1] than under the usual care arrangement. Mr Bloomer additionally observed that the extra three weeks’ care he provided were in the school holidays and were associated with a higher level of expenses than care provided during the school term.

7. The tribunal explained that the courts have found, for example in Polec above, that to care for a child does not always require the physical presence of the carer. Here the tribunal noted the following in relation to Ms Newhouse’s time overseas: Ms Newhouse continued to provide a home for [Child 1]; she arranged an alternative carer for [Child 1] during her absence, [Miss A], whom Mr Bloomer accepted was providing care for [Child 1] when he was not; [Miss A] does not pay rent or otherwise financially contribute to the household rather she assists Ms Newhouse by providing care for [Child 1] when needed; Ms Newhouse stated that she provides [Miss A] with access to a bank account from which she can draw funds to meet household costs; Ms Newhouse also makes payments into an account which can be accessed by [Child 1]; Ms Newhouse pays health insurance for [Child 1] and meets all his school costs, including buying his school uniform and a laptop in April 2022; Ms Newhouse maintained her relationship with [Child 1] by ringing him once or twice a week while she was overseas; Ms Newhouse bought [Child 1]’s [phone] for over $1,000 and Mr Bloomer pays the ongoing $30 a month plan cost; and [Child 1] does not work and has no other access to an independent source of funds which he could use to support himself.

8. On the evidence before it, the tribunal was satisfied that Ms Newhouse continued to provide care for [Child 1] while she was overseas and that the additional three weeks of care provided by Mr Bloomer during this time was a temporary disruption to the pattern of care.

9. In the absence of a changed pattern of care from 2 December 2022, the tribunal found that there was no basis to revoke the existing care percentages under any of the relevant provisions of the Assessment Act.

DECISION

The decision under review is affirmed.