Chen and Aquino (Child support)

[2020] AATA 4299

Chen and Aquino (Child support) [2020] AATA 4299 (29 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019230

APPLICANT:  Mr Chen

OTHER PARTIES:  Child Support Registrar

Ms Aquino

TRIBUNAL:Member K Dordevic

DECISION DATE:  29 July 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – child living partly away from home – 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. Mr Chen and Ms Aquino are the parents of two children. This application concerns the children’s care arrangements from 29 August 2019. 

2. From 8 June 2018 the Department of Humans Services – Child Support recorded that the children were in the mother’s 77% care and the father’s 23% care.

3. On 31 October 2019 the father notified Child Support that there was a change to the care arrangements from 29 August 2019. On 17 January 2020 Child Support refused the father’s application. On 9 February 2020 the father objected to the decision. The objection was disallowed on 13 May 2020.

4. The father sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 10 June 2020.

5. The matter was heard on 29 July 2020. The father appeared by conference telephone. The mother was a party to the proceedings but elected not to attend the hearing. The Child Support Registrar also elected not to attend. In reaching its decision the tribunal considered the sworn evidence of the father as well as the documentation provide by Child Support (folios 1–157).

ISSUES

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

2. The legal issue for the tribunal that arises in this case is whether the existing determination of care in respect of the children (being 77% to the mother and 23% to the father) reflects the actual care of the children. If not, the tribunal must determine whether the existing care determination is to be revoked, and if so, the date from which a new determination of care is to be made.

CONSIDERATION

1. Relevant to this matter, section 50 of the Act requires 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 Department and a new care determination can be made.

3. It is not in dispute that on 20 July 2018 the Family Court of Australia ordered, by consent, that the children are to live with the mother, and shall spend alternative weekends with the father during school time and half of all short school holidays, 25 nights during the summer school holidays and the night before Father’s Day. 

4. The father’s case can be summarised as follows. Upon the mother relocating to Canberra both he and she had the same level of care, that is 23% each, based on alternate weekend care. The maternal grandparents, who reside in Sydney, care for the children during the week. Therefore, it is only fair that they claim child support; he would prefer to pay the grandparents child support.

5. The mother’s submissions to Child Support are that she does not dispute that she and the children were living in Sydney and she was offered work in Canberra. In order that the children finish the school year at their school, she elected to have the children reside with her parents until the conclusion of Term IV.  Nevertheless, she has maintained day to day and financial responsibility for the children.

6. In his application to Child Support the father advised that there was a change to the children’s care from 29 August 2019. It would appear that the father’s statement is based on a letter dated the same from the mother’s solicitor, in which she advised that the mother had obtained employment in Canberra and that her intention was that the children would reside with their maternal grandparents during the week until the end of the school year. The father relies also on the mother’s Canberra property lease agreement dated 6 September 2019 as indicative of the date that the care arrangements changed. 

7. The tribunal considered the affidavit evidence provided by the father, authored by the mother and maternal grandfather, apparently for current Family Court proceedings. In her affidavit dated 25 September 2019, the mother states that she commenced employment in Canberra on 8 October 2019 and since that time the children have resided with her parents during weekdays.  The maternal grandfather’s affidavit was consistent with the mother’s statement regarding the date the care arrangement commenced.

8. The tribunal is not persuaded that the letter or tenancy agreement are indicative of the date that the care changed. Instead, the tribunal prefers the evidence contained in the affidavits from the mother and maternal grandfather which indicate that the care change occurred from 8 October 2019, and so finds accordingly.

9. Having found that the children lived with their maternal grandparents Sunday to Thursday nights from 8 October 2019, the tribunal next considered whether the children remained in the mother’s “care” for the purposes of the assessment of child support, as Child Support contends.

10. There is no statutory definition of care. However, the matter of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec) 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?

11. In a written statement to Child Support dated 8 November 2019 the mother advised that she remains the children’s primary carer even though working in Canberra on weekdays. She stated that she continued to pay for all the children’s schooling, extracurricular activities, before and after school care, medical expenses, food and clothing. The mother also advised Child Support on 17 March 2020 that she remained the emergency contact for the children’s school located in Sydney whilst commuting to Canberra.

12. There is in evidence (at folios 78 to 79) a statement from the maternal grandfather. He stated that whilst the mother commutes to Canberra she continues to pay for all their expenses, including school fees, school excursions, uniforms, before and after school care, swimming and violin lessons and a speech pathology assessment for the son. She also took the son to a hearing assessment and facilitated speech pathology sessions for him. She also has continued to organise and take the children to their medical appointments, including psychology appointments.

13. The tribunal gave particular weight to bank transfers in evidence that confirm that the mother continued to meet the children’s costs during the relevant period, including swimming and violin lessons, a hearing test, a psychology appointment for their daughter (dated 18 October 2019), a speech pathology assessment for their son (dated 23 October 2019), before and after school care during the period 11 November to 19 November 2019 and private health insurance.

14. The father accepts that the financial evidence suggests that the mother continued to provide financial support to the children whilst they were in the maternal grandparents’ care. However, he stressed that if he had met these costs they would not be accepted as prescribed non-agency payments, and therefore they are not relevant to the question of care. The tribunal does not agree. The father’s case is based on his assertion that the mother did not provide care of the children during weekdays, the concept of care including financial responsibility. 

15. The father asserts that during the weekdays he provided more emotional support to the children than the mother did, as his telephone contact with the children increased whilst they were residing with their grandparents. Putting aside the difficulty in quantifying emotional support, the tribunal simply does not have any evidence before it to determine what, if any, emotional support either parent provided the children whilst they were in their grandparents’ care.

16. After examination of the factors outlined in Polec, and in light of the affidavits and other documentary evidence before it, the tribunal concludes that whilst the children resided with their maternal grandparents five nights per week from 8 October 2019, the mother remained the children’s carer for the purposes of child support. The tribunal is satisfied that the mother continued to make all decisions regarding the children’s education and their physical and psychological health care. Furthermore, her facilitation of their attendance at counselling and other allied health services indicates that she maintained responsibility for their day to day care arrangements and ongoing physical and psychological wellbeing. And finally, the tribunal is satisfied that the mother provided for the children financially whilst they were in the care of her parents, based on the financial evidence before it. Whilst the tribunal accepts the father’s point that there are no bank statements in evidence showing direct transfers of money from the mother to the grandparents, the tribunal is satisfied that the mother met the bulk of the children’s costs during the weekdays by way of meeting their child care, health, schooling and extracurricular costs.  

17. The tribunal concludes that at the time of the father’s notification of a care change, Child Support’s care record of 77% care to the mother and 23% to the father accurately reflected the children’s care arrangements. Therefore, the father’s application to amend the care record must be refused.  

DECISION

The decision under review is affirmed.