Burridge and Carwardine (Child support)

[2024] AATA 3933

Burridge and Carwardine (Child support) [2024] AATA 3933 (30 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/AC027919

APPLICANT:  Ms Burridge

OTHER PARTIES:  Child Support Registrar

Mr Carwardine

TRIBUNAL:Member F Petrone

DECISION DATE:  30 July 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS 

CHILD SUPPORT – whether there has been a change in the pattern of care – [Child 1] lived solely with father – mother has not provided any reliable evidence –– 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 theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Ms Burridge and Mr Carwardine are the parents of [Child 1].  A child support case was registered from 18 August 2023 with Services Australia – Child Support (Child Support).

2. On 7 September 2023, Child Support made an initial care determination reflecting the care of [Child 1] as 0% to Ms Burridge and 100% to Mr Carwardine from 16 August 2023, effective in the assessment from 18 August 2023 (the initial care determination).

3. On 5 October 2023, Ms Burridge objected to the initial care determination, and on 28 March 2024, an objections officer disallowed the objection.

4. On 9 May 2024, Ms Burridge applied to the Tribunal for further review.

5. Child Support provided the Tribunal with a bundle of documents, copied to Ms Burridge and Mr Carwardine as required under subsection 37(1) of the Administrative Appeals Tribunal Act 1975, being 246 pages in total (the Tribunal documents).

6. On 26 July 2024 and 29 July 2024, Mr Carwardine provided the Tribunal with a submission in relation to the application and further material, being 12 pages in total, which was accepted into evidence, marked B1–B12 and copied to Ms Burridge.

7. Both parents attended a hearing on 30 July 2024 by Microsoft Teams audio and spoke with me regarding the application, each giving evidence by affirmation.

8. Ms Burridge stated that she has not yet received Mr Carwardine’s further evidence and so was provided with further time to lodge her response following the hearing.  Ms Burridge provided the Tribunal with her response by email the following day.  In the response Ms Burridge raises concerns in relation to the information provided by Mr Carwardine that question the reliability of the information provided, particularly in relation to the period after 8 February 2024 when it appears [Child 1] was no longer enrolled at [College 1].

ISSUE

1. The issue which arises in this case is regarding what the percentage of care is for each parent.

CONSIDERATION

1. Under section 50 of the Child Support (Assessment) Act 1989 (the Act), if an application is made for a child support assessment and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances, the Registrar must determine the responsible person’s percentage of care for the child during the care period.

2. The care period is not necessarily the period in respect of which the care determination will operate; rather, it is a mechanism by which a pattern of care may be examined in order to identify and convert the pattern to a percentage, usually by reference to nights in care.

3. A period of 12 months from the date of registration (for an initial care determination) or from the change of care date (for later determinations) is generally considered appropriate unless there are reasons that warrant using a shorter or longer period.

4. I am satisfied that, for the purpose of calculating a percentage of care in this case, it is appropriate in all the circumstances to consider a 12-month period from the start of the child support assessment.

5. The task, under subsection 50(3) of the Act, is to determine the actual care that each of the parents has had, or is likely to have, during the care period based on the pattern of care.

6. Mr Carwardine states that [Child 1] was ‘kicked out’ of Ms Burridge’s home in February 2023.  Ms Burridge does not dispute that [Child 1] was no longer living with her from February 2023 but states that she was not living with Mr Carwardine and that there was an apprehended violence order (AVO) against Mr Carwardine that prevented him from having contact with [Child 1]. 

7. Ms Burridge states that to her knowledge, from February 2023, [Child 1] was living with her boyfriend and his mother in [Town 1].  Mr Carwardine agrees that [Child 1] moved in with her boyfriend and his mother after a period of couch-surfing.  He states that [Child 1] then indicated to him that she wished to move to [City 1] to live with him.  He provided evidence that the AVO was revoked on 7 August 2023 (page 42 of the Tribunal documents) and states that [Child 1] was then living with him from 16 August 2023 to 31 March 2024.

8. It is not disputed that [Child 1] did not spend any nights in her mother’s care after February 2023.  Ms Burridge disputes, however, that [Child 1] was in Mr Carwardine’s care.  Further, Ms Burridge submitted that it appeared highly unlikely that [Child 1] did not return to live in [Town 1] until 1 April 2024 (2 days after the objection decision) and believes she may have done so earlier given that the evidence from [College 1] indicates that she was enrolled there between 30 June 2023 and 8 February 2024 and the evidence from the Army Cadets in [City 1] appears to only relate to the period ending in December 2023.  Mr Carwardine submitted that it was purely coincidental that [Child 1] left his care shortly after receipt of the objection decision and believes he has provided ample evidence to indicate that [Child 1] was in his care during the period in question.

9. Third-party statements contained within the Tribunal documents support that [Child 1] was living with Mr Carwardine from 16 August 2023.  Ms Burridge disputes the reliability of these statements.  Further, she questions how Mr Carwardine could be providing care for [Child 1] when his work roster was week-on/week-off [and] when information available to her suggested that [Child 1] was not living at his home.  Mr Carwardine indicated that his partner [Ms A] cared for [Child 1] when he was not at home.

10. Having reviewed the material contained within the Tribunal documents and referred to in detail in the decision of the objections officer, I am satisfied that the pattern of care in the relevant care period was that [Child 1] lived solely with Mr Carwardine.  Consequently, I am satisfied that [Child 1] was in Ms Burridge’s 0% care and Mr Carwardine’s 100% care from 16 August 2023.

11. Whilst I appreciate the queries raised by Ms Burridge, she has not provided any reliable evidence upon which to conclude that [Child 1] was not in Mr Carwardine’s 100% care from 16 August 2023.

12. I note that Child Support has since been advised of a change in care from 1 April 2024 and that this has been reflected in the assessment.

DECISION

The decision under review is affirmed.