Broady and Wagler (Child support)

[2022] AATA 5132

Broady and Wagler (Child support) [2022] AATA 5132 (6 December 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024682

APPLICANT:  Mr Broady

OTHER PARTIES:  Child Support Registrar

Ms Wagler

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  6 December 2022

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr Broady had 0% care and Ms Wagler 0% care of their son [Child 1] from 17 April 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and 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 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 Wagler (the mother) and Mr Broady (the father) are the parents of two children, a son and a daughter. This application concerns their son’s care (hereafter referred to as the child) from 6 April 2022.

2. The case was registered with the Child Support Agency (the Agency) from 10 May 2010.

3. From 25 September 2021 the child’s care record was reflected as 0% care to the father and 100% care to the mother.

4. On 27 April 2022 the father notified the Agency that there was a change in the child’s care from 6 April 2022, whereby he had 0% care and the mother had 0% care.

5. On 1 August 2022 the Agency refused to amend the care record based on the father’s care change notification. On 2 August 2022 the father objected to the decision. On 13 September 2022 the objection was disallowed.

6. The father sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 16 September 2022.

7. The matter was heard on 30 November 2022. The father appeared in person and mother appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing. The tribunal also considered the documentation provided by Agency (folios 1 to 118).

8. At the conclusion of the hearing it was agreed that the matter would be deferred to allow the mother to provide further evidence regarding her care of the child, by close of business 2 December 2022. The mother provided further evidence (marked folios B1 to B21) within the requisite period. A copy of these documents were provided to the father and the Agency. In response the father provided submissions and additional documents on 5 December 2022 (marked folios A1 to A7).

9. The tribunal reached its decision on 6 December 2022.

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is whether there was a change to the child’s care arrangements and, if so, the date of effect of the new care determination.

CONSIDERATION

1. Relevant to this matter, sections 49 and 50 of the Act require the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision-maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter.

2. The tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same – what was the pattern of care up until the date of notification and what was likely to occur thereafter? If there is a divergence from what was considered likely to happen, a parent can notify the Agency and a new care determination can be made from the date of divergence.

3. The father’s evidence can be summarised as follows: there were court orders made in 2013 which granted him full care and custody of the child. The mother undermined that order and advocated to the child that he should live with her. The child approached him and said that he wanted to live with his mother; the request came out of the blue. He asked his daughter to transport the child to [Town 1], where the mother lived. Whilst the child was being transported, he reminded the mother about the court orders in place and that she must comply with those orders. He refutes that there was a violent incident, as Ms Wagler alleges, that led to the child leaving his care.

4. The father does not dispute that he has had no contact with the child since the child left his care in September 2021. Further, he has not taken any action to enforce the court order to care. However, he was advised by his daughter that the child was not happy living with his mother and that there was an arrangement whereby the child would go to Western Australia to live with his half-brother, Mr [Mr A]. He advised the daughter that this was not an option and instead the child should be returned to his care. This did not eventuate.

5. The father confirmed that he is unaware of the child’s circumstances since relocating to Western Australia. However, he is certain that the child is living independently from the mother and should no longer be considered as being in her 100% care. In any event, he is certain that the mother’s financial contribution towards the child’s costs is considerably less than the $1,500 he contributes in child support per month.

6. Relevant to this application, the mother’s evidence can be summarised as follows. She believes that the decision under review is correct. Though the child relocated to Western Australia on 16 April 2022, she continues to provide him with financial and emotional support as well as fulfilling her guardianship responsibilities. She explained that the child called her in September 2021 in tears stating that the father had told him that he needed to choose between him and her, and that if he chose to live with her the father would no longer have anything to do with him. She alleged that the father physically assaulted the child in the altercation that led to the child calling her.

7. She denies that the child’s relocation to Western Australia in April 2022 was a result of she and the child not getting along. Instead, she explained that she relocated to Western Australia so that he could live on a farm; he had always been interested in farming and agriculture. They maintained contact over the telephone and through Facebook messenger. Within the last month she relocated to Western Australia and she now lives an hour away from her sons’ home. There are no plans for the child to come and live with her as he has settled well into her older son’s family

8. The mother went on to explain that the child has just finished Year 10 and in 2023 will start a school-based [apprenticeship]. She, her daughter and her older son are all the contact people for the school. Her older son signed all school enrolment forms and completed school permission forms simply because of the logistics. Her older son does not seek her permission or liaise with her about this as she has complete faith in his decision-making abilities. However, she stressed that when it comes to significant decisions such as school camp or tutoring, the older son will speak to her and they will make a joint decision. She stressed that the family is very close, they always have family discussions and that she, her older son and his wife, as well as her daughter, are all involved in the final decision-making in respect of the child. She states that the only difference in the living arrangements whilst the son is in Western Australia is that he is not physically living with her. Nevertheless, she is involved in his day-to-day decision-making including the provision of a maths tutor. Medical decisions in respect of the child remain her responsibility. By way of example, she stated that the child wanted to get vaccinated and that whilst she did not agree with this, she respected the child’s decision to get vaccinated.

9. The mother stated she does not pay school fees, as they are not payable as the child attends a public school. She does provide her older son and his wife financial support for the child. The arrangement is that when she receives her family tax benefit (which she receives in respect of the child) she transfers this money directly to her older son. She also pays for his mobile phone. She stressed that this demonstrates that she is still financially supporting the child. She will also be organising a maths tutor for the child.

10. Following the hearing the mother provided a family tax benefit statement dated 2 December 2022 which indicates that she receives $84.14 in family tax benefit per fortnight in respect of the child. The mother provided bank statements which evidence that she made the following transfers for the benefit of the child:

Date	Descriptor	Amount
16 April 2022	[air tickets]	$755.99
10 April to 2 May 2022	[Mr A][Child 1]	$165
2 May 2022	[Child 1] phone	$65
8 June 2022	[Mr A]for [Child 1]	$170
22 June 2022	[Mr A] for [Child 1]	$90
9 July 2022	[Child 1] phone	$65
20 July 2022	[Mr A] for [Child 1]	$100
9 August 2022	[Child 1] phone	$65
2-17 August 2022	[Mr A]  for [Child 1]	$100
17-31 August 2022	[Mr A]  for [Child 1]	$100
17 September 2022	[Mr A]  for [Child 1]	$100
17 September 2022	[Mr A]  [Child 1] Camp	$150
3 October 2022	[Child 1] phone	$65
Total	$1,819.99

1. There is no statutory definition of care. However, the matter of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 is instructive on what constitutes care. Hughes FM stated at paragraph 56, that 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 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?

2. Based on the evidence provided by the mother the tribunal finds that during the period 14 April to 1 December 2022 she contributed $1,819.99 towards the costs associated with the child’s care. During the same period there were over 16 fortnights in which she received family tax benefit for the child which would be the equivalent of about $1,346. The tribunal is not persuaded that the transfer of the family tax benefit, which she receives because of her declared care of the child, supports a finding that she cares for the child.  Apart from the transfer of the benefit, the mother contributed about $474 of her own funds (net of family tax benefit) towards the child’s costs during this 231-day period, or just over $2.05 per day. The tribunal is not persuaded that, as the mother contends, she is the primary source of financial support for the child; instead, it is apparent that it is her older son and his wife who meet the majority of the child’s costs.

3. The tribunal also carefully considered the mother’s submissions regarding the emotional support and guidance she provides to the child and guardianship responsibilities she assumes. The tribunal found that the mother was unable to provide a clear, consistent and plausible narrative about the support she provides the child. She was unable to provide details and specific details about the child’s schooling and her description of her contact with the child does not suggest that she is involved in his day-to-day welfare. Furthermore, her example of the vaccination of the child suggests that it was the child, and not she, who made the medical decisions.

4. After examination of the factors outlined in Polec and taking into account the evidence before it, the tribunal is not satisfied that the mother provided any care to the child from 17 April 2022. The tribunal also finds that the father had no contact at all with the child from this date (and prior to this date) and so provided no care of the child from the same date. It is apparent that the child’s older half-brother and his wife assumed responsibility towards the child’s health, education or emotional welfare, notwithstanding the fact that major decisions were discussed with the child’s sister and mother. It is also apparent given the mother’s limited financial support that they provide for the child financially. The tribunal is satisfied that it is appropriate to reflect the mother’s care of the child as 0% from 17 April 2022, as required under subsection 49(1) of the Act.

5. Subsection 54F(1) of the Act provides that in circumstances where the current care decision has been made under sections 49 or 50 of the Act, if section 51 of the Act applies and the interim period has ended, the Registrar (or tribunal in the shoes of the Registrar) is satisfied that the new level of care advised is not consistent with the existing determination of care and that the actual care of the child results in a change to the rate of child support payable by one parent to the other due to a change in the cost percentages and section 54G of the Act is not applicable, then the current care decision must be revoked. The tribunal is satisfied that all five criteria under this provision are met.

1. Paragraph 54F(3)(a) of the Act states, in situations where the change was notified within 28 days of the care change (as is the case in this matter), the date of revocation is the day before the change of care day. Thus, the tribunal must revoke the existing care determination from 16 April 2022. Thus, the tribunal revokes the mother’s care percentage of 100% and the father’s care percentage of 0% on 16 April 2022 and replaces it with new care percentages of 0% to the mother and 0% to the father from 17 April 2022.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mr Broady had 0% care and Ms Wagler 0% care of their son [Child 1] from 17 April 2022.