Cleveland and Parkes (Child support)

[2020] AATA 1038

Cleveland and Parkes (Child support) [2020] AATA 1038 (13 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017739

APPLICANT:  Ms Cleveland

OTHER PARTIES:  Child Support Registrar

Mr Parkes

TRIBUNAL:Member K Dordevic

DECISION DATE:  13 February 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, determines that Mr Parkes’s application to amend the care register lodged on 30 April 2019 is refused.

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 - 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 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. Relevant to this application, Mr Parkes and Ms Cleveland are the parents of [Child 1].

2. There has been a child support assessment in place since 20 May 2016, with the care register recording that Ms Cleveland had 100% and Mr Parkes 0% care of [Child 1]. 

3. On 30 April 2019 Mr Parkes notified the Department that Ms Cleveland had nil care of [Child 1] since 31 July 2018. His request for a new care determination was refused on 3 June 2019.

4. Mr Parkes objected to that decision on 9 July 2019. On 26 September 2019 an objections officer allowed his objection, determining that Ms Cleveland has 0% and Mr Parkes has 0% care of [Child 1] from 31 July 2018.

5. Ms Cleveland sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 1 November 2019.

6. Mr Parkes’s applications to have the matter rescheduled, lodged on 20 December 2019 and 2 January 2020, were refused.

7. The matter was heard on 13 February 2020. Mr Parkes appeared in person. Ms Cleveland appeared by conference telephone. In reaching its decision the tribunal considered the sworn evidence of the parties as well as the documentation provided by the Department (folios 1–120). Ms Cleveland provided further documents (folios A1–A55) and Mr Parkes provided a further document (folio B1), copies of which were provided to the Department.

ISSUES

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

CONSIDERATION

1. Relevant to this matter, section 50 of the Act requires the primary decision-maker to determine the pattern of care based on actual care at the time of notification and the likely care thereafter. 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?

2. The tribunal makes the following findings:

   ·Ms Cleveland departed Australia on 26 June 2018 and returned on 10 May 2019;

   ·During the period that Ms Cleveland was overseas [Child 1] primarily resided with her maternal [Relative 1];

   ·Mr Parkes only became aware that [Child 1] was not in the day-to-day care of Ms Cleveland in March 2019; and

   ·During the period Ms Cleveland was overseas she transferred $16,467 to [Relative 1] for the benefit of [Child 1].

3. Ms Cleveland submits that she continued to provide care to [Child 1] whilst she was overseas. This was by the provision of financial support as well as ongoing communication directly with [Child 1], her [Relative 1] and other families with whom [Child 1] spent time during the relevant period. Mr Parkes submits that as a matter of equity and logic Ms Cleveland cannot claim child support for a period in which she did not provide care for [Child 1].

4. 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?

5. The tribunal is satisfied that prior to her departure from Australia Ms Cleveland arranged for [Child 1] to be placed in her maternal [Relative 1]’s care for the duration of her absence. [Relative 1] met [Child 1]’s daily needs by providing her with accommodation, food, supervision and emotional support when required. The tribunal accepts that, given [Child 1]’s age, she is capable of meeting her own needs in regards to transport, the purchase of clothing and food preparation.

6. The evidence provided by Ms Cleveland suggests that she remained in constant contact with [Child 1], via [social media], text messaging and telephone calls and that their discussions involved Ms Cleveland making decisions and recommendations regarding [Child 1]’s education, health care, food choices, she also provided emotional support to [Child 1] as well as ensuring that she completed of homework. The text messages in evidence also indicate that during the same period Ms Cleveland directed [Relative 1] to provide support and supervision generally, and more specific instructions regarding him attending to various issues as they arose.  The tribunal also accepts Ms Cleveland’ evidence that she also made decisions regarding the frequency of contact between [Child 1] and her close friend, including giving permission and meeting the cost of [Child 1] going to the snow with the family. And finally, the tribunal is satisfied that during the relevant period Ms Cleveland met the financial support for [Child 1]; there is no evidence that [Child 1]’s maternal [Relative 1] or any other person met any of [Child 1]’s expenses during Ms Cleveland’ absence (apart from the child support payments made by Mr Parkes). There is also no evidence to suggest that [Child 1] has her own source of income or is financially independent.

7. After examination of the factors outlined in Polec, and taking into account the evidence before it, the tribunal is satisfied that Ms Cleveland continued to care for [Child 1] during the period that she was absent from Australia. During that time she was solely financially responsible for her, attended to her welfare and continued to make arrangements to ensure that [Child 1] was cared for appropriately by her maternal [Relative 1].

8. It is noted that Mr Parkes has raised other issues, which are not strictly relevant to this determination, including asking why he was not allowed to care for [Child 1] in her mother’s absence. Whilst his distress at his estrangement from his daughter is understandable, it is not relevant to the decision before it.

9. The tribunal has determined that [Child 1] remained in her mother’s 100% care during the period 26 June 2018 to 10 May 2019. Thus, Mr Parkes’s application to amend the care register lodged on 30 April 2019 is refused.

DECISION

The tribunal sets aside the decision under review and, in substitution, determines that Mr Parkes’s application to amend the care register lodged on 30 April 2019 is refused.