Carney and Waller (Child support)

[2019] AATA 4347

Carney and Waller (Child support) [2019] AATA 4347 (3 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016803

APPLICANT:  Mr Carney

OTHER PARTIES:  Child Support Registrar

Ms Waller

TRIBUNAL:Member Y Webb

DECISION DATE:  03 September 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether a child support terminating event had occurred – decision under review affirmed

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 review is about the percentages of care of Mr Carney and Ms Waller in relation to their child who is now 16 years old.

2. The child support case was registered with the Department of Human Services (“Child Support Agency”) on 20 January 2012 and registered for collection by the Child Support Agency on 2 July 2012.

3. There are no court orders or written parenting plans in relation to the care of the child.

4. From 12 October 2017 the care percentages in relation to the care of the child were recorded as 100% to Ms Waller and 0% to Mr Carney.

5. On 9 November 2018, Mr Carney contacted the Child Support Agency and advised that the child was living with his elder sister and that both he and Ms Waller had had 0% care since 2 November 2018.

6. On 31 December 2018 the Child Support Agency spoke with Ms Waller.  The Child Support Agency notes state that Ms Waller said that there were three weeks over November when (the child) was staying at his sister’s address.  This was because Ms Waller had to travel to a regional area for employment. 

7. On 16 January 2019 a delegate of the Registrar decided that there had been a terminating event and that both parents had had nil care since 2 November 2018.

8. On 25 January 2019 Ms Waller objected to that decision.  She stated that although the child was staying with his elder sister this was only a temporary arrangement and she continued to provide support, including financial support to the child.

9. On 30 May 2019, an objections officer allowed Ms Waller’s objection.

10. On 24 June 2019, Mr Carney requested review by the Administrative Appeals Tribunal (the Tribunal).

11. Mr Carney and Ms Waller attended the hearing on 3 September 2019 by way of a telephone conference and both gave sworn evidence.

12. Prior to the hearing Mr Carney provided a written submission, a child support account statement, a letter to him from the Child Support Agency and verification of amounts of child support paid in the period 18 October 2018 to 31 October 2018 and in the period 10 January 2019 to 23 January 2019.  These documents have been marked Exhibit A1–A17.

13. The Tribunal was also provided with relevant documentation by the Child Support Agency (marked Exhibit C1).

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the actual care arrangements in relation to the care of the child in the relevant care period?

   b)Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

3. The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

4. In this case, there were no court orders and therefore the Tribunal finds that it was correct to determine the parents’ percentages of care for the child based on the actual care which was taking place.

5. The Tribunal is required to consider the actual care during the care period. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period.

6. Section 54A of the Assessment Act then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

7. In this case, Mr Carney and Ms Waller did not contend that nights were an unsuitable measure of the care of the child and the Tribunal finds that nights are an appropriate method of ascertaining the actual care in this case.

8. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the Tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

   [1] Paragraph 50(1)(a) of the Assessment Act

9. The Tribunal notes that a new percentage of care determination was made in this case of 100% care to Mr Carney and 0% care to Ms Waller from 1 January 2019.

10. Hence the period which the Tribunal is considering is the care period 2 November 2018 to 31 December 2018.

Mr Carney’s evidence and contentions

1. Mr Carney contacted the Child Support Agency on 9 November 2018 and stated that the child was living with his older sister.  He stated that Ms Waller moved out of her home on 2 November 2018 to take a job in another part of Queensland.  He contended that the care was 0% to both parents from that date.  He stated that the older sister did not wish to be involved in any child support processes.

2. Mr Carney provided a letter from his partner, [named], dated 6 January 2019 which stated that: “(older sister) has had (the child) in her care since 1^st November 2018”…I am aware that (the child) has lived with his sister…when…their mother took employment elsewhere from the date stated above.  I am aware of this through conversations I have had with (older sister) and (child)”.[2]

   [2] C1:67

3. Mr Carney stated that he provided $570 to his daughter (the older sister of the child) during the period in question and as the child was staying with his daughter “…it was clear the money was used to assist the child”.[3]  Mr Carney provided copies of two bank transfers from him to the child’s elder sister (one for $460 described as “rent” and one for $90 described as “train (child’s name)”.[4]

   [3] C1:113

   [4] C1:120–121

4. Mr Carney stated that he did not accept that Ms Waller was the primary or sole financial support for the child during the relevant period. 

5. Mr Carney asserted that if education is a component of care in relation to a child, then Ms Waller was not providing care as she knew that the child was not attending school in 2018.

6. Mr Carney disputed that Ms Waller was making day-to-day decisions in relation to the child during the period when the child was living with his elder sister.

Ms Waller’s evidence and contentions

1. Ms Waller confirmed that she sought employment in another location in Queensland and that in the period between 2 November 2018 and 23 December 2018 the child stayed with his elder sister.

2. Ms Waller stated that when she arrived at the other location in Queensland the only accommodation available was at the hotel and she did not believe that was suitable accommodation for the child.  Hence, he stayed on a temporary basis with his elder sister but this was only until she found a house. She obtained suitable accommodation on 17 December 2018 and intended that the child would live there with her.

3. Ms Waller stated that the elder sister was never in charge of the child’s care.  She stated that she frequently contacted the elder sister and the child to check how the child was going.  She stated that she was in constant contact with him and that in addition to text messages she spoke to the elder sister daily and with the child at least twice a week.

4. Ms Waller agreed that the child was not attending school in 2018.  She stated that she had contacted the Education office three times about his non-attendance but the child refused to go to school.  Ms Waller stated that she contacted Mr Carney and requested that he have the child live with him but Ms Waller stated that Mr Carney’s partner would not agree to the child being in Mr Carney’s care.

5. Ms Waller stated that throughout the period when the child was staying with his elder sister (between 2 November 2018 and 31 December 2018) there was a period between 23 December 2018 and 31 December 2018 when she (Ms Waller) and her other children (including the child) were all staying with the child’s elder sister.

6. Ms Waller strongly contended that throughout the period when the child was staying with his elder sister she continued to financially support the child. Ms Waller provided excerpts from her bank statements[5] confirming multiple amounts which she transferred to the elder sister and which are detailed below:

   [5] C1:153–186

Date	Description	Amount
3/11/2018	Uber	$30
6/11/2018	Food	$50
7/11/2018	Uber	$10
8/11/2018	Rent	$230
8/11/2018	Rent	$30
10/11/2018	Uber	$10
15/11/2018	Birthday	$250
19/11/2018	Snacks	$50
22/11/2018	Train/food	$50
22/11/2018	Rent/food	$100
22/11/2018	Rent	$120
24/11/2018	Uber	$20
24/11/2018	Uber	$20
26/11/2018	Dinner	$30
27/11/2018	Uber	$10
27/11/2018	Uber	$10
27/11/2018	Uber	$10
30/11/2018	Rent	$200
1/12/2018	Food	$150
1/12/2018	Food	$100
3/12/2018	Food	$50
3/12/2018	Shirts	$20
4/12/2018	Uber	$30
6/12/2018	Uber	$30
7/12/2018	Uber	$25
8/12/2018	Uber	$10
9/12/2018	Uber	$10
9/12/2018	Uber	$10
9/12/2018	Food	$50
11/12/2018	Food	$40
12/12/2018	Uber	$20
19/12/2018	Food	$150
21/12/2018	Food	$100
22/12/2018	Uber	$50

1. In addition Ms Waller provided proof of debit card purchases from 2 November 2018 as follows:[6]

   [6] C1:147–152

Date	Description	Amount
7/11/2018	[Phone company] prepaid	$40
28/11/2018	[Taxi]	$14.70
13/11/2018	[Online games]	$39.99
17/12/2018	[Online games]	$23.99
28/12/2018	[Phone company] prepaid	$40

1. Ms Waller also provided a lease agreement of the child’s elder sister which showed that the child was not named as a person residing at the premises.[7]

   [7] C1:187

2. Ms Waller contended that despite the child temporarily residing at his elder sister’s house, she was still making day-to-day decisions for him.

3. Ms Waller stated that the $460 which Mr Carney transferred to the child’s elder sister on 28 October 2018 was for the bond on the elder sister’s accommodation and was not related to the child.  The $90 transfer on 30 December 2018 was the train fare for the child to move to his father’s care.

4. Ms Waller provided three third-party statements: one from [Ms A] dated 24 March 2019 who Ms Waller described as being a “very close” friend whom she considers her niece.  [Ms A] stated that “[Ms Waller] and I often discussed how she was sending money to (the child) via (the elder sister’s) bank account for his living expenses…[She] was also making day to day decision for (the child) whilst he was temporarily staying with (the elder sister)”.[8]

   [8] C1:143

5. Ms Waller also provided a statement from her friend [named] who stated that Ms Waller “…was financially responsible for (the child) while he was in her care until 31^st December 2018.  [Ms Waller] and I had many discussions about how she was sending money to (the elder sister) for his living expenses while he was temporarily living with (the elder sister).  She was also making his day to day decisions as in giving permission for him to visit friends where and when and for how long for and the mode of transport to and from”.[9]

   [9] C1:144

6. Ms Waller also provided a statement from her elder son who stated that “[Ms Waller] had and was financially responsible for (the child’s) living expenses and any day to day decisions …from 2^nd November to 31^st December 2018…I knew [she] was sending money to (the elder sister) for (the child’s) food, clothing, entertainment, phone credit etc…[Ms Waller] was in charge of (the child) as in discussing with (the child) his day to day activities while he was staying with (the elder sister) temporarily”.[10]

The Tribunal’s consideration

[10] C1:189

1. The term “care” is not defined in the legislation.  In the case of Polec & Staker[11] the Federal Magistrates Court of Australia stated that the words of the Act are to be construed having regard to the objects of the Act.  The Court stated that “the objects are clearly directed to ensuring that a person with the ongoing daily care of a child should receive adequate financial support from the parents of the child according to the capacity of each of the parents to provide that support”.

   [11] [2011] FMCAfam 959

2. The Court went on to state (at para 56) that in determining whether and to what extent a person has care of a child for the purposes of the child support legislation, the following factors are relevant considerations:

   (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?

3. In this case, considering the evidence of the parents the Tribunal is satisfied that Ms Waller made arrangements with the child’s elder sister for the child to stay with the elder sister on a temporary basis while she sought employment in another location in Queensland.  The Tribunal accepts Ms Waller’s statements that the child did not accompany her to the location because the only available accommodation was at the hotel and she did not think that was suitable accommodation for the child.

4. The Tribunal accepts that Ms Waller resided in the other location for the period 2 November 2018 to 23 December 2018 and that throughout that period the child resided with the elder sister.

5. The Tribunal accepts Ms Waller’s statements that she was in frequent (daily or close to daily) contact with the child’s elder sister and also in reasonably frequent contact with the child (at least twice a week) and that the purpose of these contacts by text and telephone were to check on the child’s welfare and how the accommodation arrangements were going.  Ms Waller stated that she provided emotional support to the child in these contacts and that she discussed any outings and activities with him including transport arrangements.  The Tribunal accepts her statements about these matters.

6. Importantly, the Tribunal is persuaded that Ms Waller financially supported the child throughout the period that she was working at the other location.  She provided excerpts from her bank statements showing multiple transfers to the child’s elder sister in the period 3 November 2018 to 22 December 2018. The Tribunal accepts that the evidence of transfers is genuine and that throughout the period when she was living separately from the child Ms Waller was meeting the child’s financial needs by paying for the child’s mobile phone, making other purchases for the benefit of the child and by frequent transfers of funds intended to be used for food, rent, clothing and transport as detailed above in paragraphs 36 and 37.  The Tribunal is satisfied that there were no further transfers after 22 December 2018 because Ms Waller had returned to the city and was also residing with the child’s elder sister around the Christmas period. 

7. The Tribunal is satisfied that the child was not financially independent and that he was dependent on his parents for financial support.  Mr Carney stated that he provided $570 to the child in the relevant period but the Tribunal is not satisfied that the amount of $460 was a payment directly relating to the child but was a payment made prior to 2 November 2018 to the child’s elder sister towards the bond on her new rental premises.  The Tribunal is satisfied that Mr Carney provided $90 to the child for a train fare but this was so that the child could relocate to the care of Mr Carney from 1 January 2019.  The Tribunal is not satisfied that Mr Carney was financially supporting the child to any significant degree during the period in question between 2 November 2018 and 31 December 2018.

8. In relation to the child’s non-attendance at school in 2018 this is a matter which was outside of the scope of this review.  In the period between 2 November 2018 and 31 December 2018 it is likely that the school year for secondary students had ended or close to ended.  Even if that was not the case, education is one factor of the care context and in determining whether a parent has the care of a child.  Ms Waller gave an explanation as to the child’s non-attendance at school. Education is one of a number of factors to be considered in the care context but it is not the only or the over-riding factor and a lack of attendance at school will not automatically result in a finding that a parent does not have care of the child.

9. The Tribunal has considered the third-party statements from both parents.  The Tribunal accepts that these were genuinely given in good faith.  However, as the authors are family members or friends rather than independent and impartial third parties, the Tribunal has ascribed limited weight to the information provided by the third parties.  Predominantly the Tribunal has relied on the statements of the parents and on the evidence of financial support as detailed in the bank statements.

10. The Tribunal is satisfied that Ms Waller was meeting most of the costs for caring for the child and does not accept that during the care period 2 November 2018 to 31 December 2018 the child was wholly or substantially self-supporting or that any other person except Ms Waller was financially supporting the child to any significant degree.

11. For these reasons the Tribunal concludes that a terminating event did not occur on 2 November 2018 when the child commenced temporarily residing with his elder sister.  Rather the Tribunal concludes that because Ms Waller continued to be responsible for the care of the child there was no care change from 2 November 2018 and the pattern of care in the period 2 November 2018 to 31 December 2018 continued to be 100% to Ms Waller and 0% to Mr Carney.

DECISION

The decision under review is affirmed.