Colburn and McCouch (Child support)

[2022] AATA 4677

Colburn and McCouch (Child support) [2022] AATA 4677 (4 November 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024592

APPLICANT:  Ms Colburn

OTHER PARTIES:  Mr McCouch

Child Support Registrar

TRIBUNAL:  Member J Nalpantidis

DECISION DATE:  4 November 2022

DECISION:

The tribunal sets aside the decision under review made by the objections officer on 25 August 2022, and in substitution, decides that the care percentage of 100% for Ms Colburn and 0% for Mr McCouch, applies to the administrative assessment for the child from 2 May 2022. 

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – 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 Colburn and Mr McCouch are the parents of [Child 1] (born November 2005) (the child). This review is about the percentage of care for Ms Colburn and Mr McCouch that applies in relation to the administrative assessment of child support for the child.

2. A child support assessment has been in place between Ms Colburn and Mr McCouch for the child since 11 February 2020.  The pre-existing care for the child was 100% to Ms Colburn and 0% to Mr McCouch.

3. On 23 May 2022, Mr McCouch notified a change in care for the child and the care of the child was now 0% to Ms Colburn and 0% to Mr McCouch from 2 May 2022.

4. All attempts by the Child Support Agency (the Agency) to contact Ms Colburn were unsuccessful and on 27 June 2022, the Agency had recorded the care determination for the child as Ms Colburn having 0% care of the child and Mr McCouch 0% from 2 May 2022 (the original decision).

5. On 5 July 2022, Ms Colburn objected to the original decision on the basis that between May and June 2022 she was looking for accommodation as she had to leave her previous rental property which was sold.  She stayed in a caravan park for a week, then a tent for four weeks, however due to inclement weather the child went to stay with his brothers.  She nevertheless continued to be fully responsible for the child.  Ms Colburn provided the following evidence to the Agency: rental payment details – Tenant Assist Queensland, confirmation of rental, self-written statement, photographs and receipts from Woolworths, Puma Energy, Domino’s, Big W and KFC. 

6. On 18 July 2022, Mr McCouch responded to Ms Colburn’s objection and provided a verbal response to the Agency, stating “(the child) told me he was living with his older brother.  I don’t know if Ms Colburn was financially supporting (the child) still or if his brother was covering his cost.”    

7. On 25 August 2022, an Agency objections officer disallowed Ms Colburn’s objection.  The effect of the objection decision was that there was no change to the assessment and the care of the child remained as 0% to Ms Colburn and 0% to Mr McCouch from 2 May 2022.

8. On 6 September 2022 Ms Colburn applied to this tribunal for review of the objection decision.

9. The tribunal conducted a hearing on 4 November 2022. Ms Colburn and Mr McCouch participated at the hearing by telephone via Microsoft Teams audio; they each provided oral evidence on affirmation and made oral submissions at the hearing. The Registrar did not participate in the hearing. The tribunal had before it documents provided by the Registrar numbered 1 to 101 which had been copied to Ms Colburn and Mr McCouch before the hearing. Prior to the hearing Mr McCouch provided written submissions and further information (B1 to B10) and Ms Colburn also provided further material (A1 to A7); a copy of the information provided by Mr McCouch and Ms Colburn was exchanged with the parties.   

10. Ms Colburn provided further material after the hearing (A8 to A12) which was provided to Mr McCouch and the Registrar.

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 children 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.

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 regarding the care of the child.  Therefore, the parents’ percentages of care must be based on the pattern of actual care which was taking place.

5. 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. In this case the tribunal is satisfied that a 12-month care period is appropriate. The tribunal notes that although the tribunal has decided that a 12-month care period is appropriate, this will continue to apply until a further change of care is notified (which may be before or after a 12-month period has elapsed).

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, there is no contention by the parties 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

Ms Colburn’s evidence and contentions

1. Ms Colburn told the tribunal the child was living with her on 2 May 2022 although he occasionally stayed overnight with his brothers, who lived independently.  Earlier in the year the child’s older brothers moved in with her because their father would not allow them to stay with him.  Ms Colburn gave evidence her lease was terminated by her landlord as it was alleged too many people lived in the house and the house was being sold.  She was given six weeks’ notice and had to move out by 27 April 2022.  Ms Colburn gave evidence that she was unable to secure accommodation immediately and was effectively homeless until she secured a rental property on 28 May 2022.  It was difficult finding accommodation for her large family and she tried the private rental market, the Department of Housing and Anglicare.  During this time her family, including the family pets, stayed at the showgrounds, caravan parks, a tent and marquees as well as her car.  Ms Colburn gave evidence that she secured a storage unit for $360 per month to store the family’s household items during her period of homelessness.   Ms Colburn said they had a car, a gazebo and tent.  The child slept in a swag in the tent so as to be off the ground, and she slept in the car with their youngest child.  The child was with her during this period and stayed in the tent, however the weather turned bad and they thought it may be better for him to stay with his brothers, who lived close by to the child’s school and it would be easy for the child to go to school from there.  Ms Colburn provided photographs of the child’s sleeping arrangements to the Agency including at his brother’s home, in a bed in the caravan park and in the back of their car and in a double bunk bed.  She submitted this shows that in light of the family’s circumstances, in the period the child had a variety of sleeping arrangements.

2. Ms Colburn told the tribunal that she continued to care for the child, paid for all his costs including groceries and food.  Ms Colburn provided various receipts to the Agency when asked to provide evidence of costs she met, so she provided what she could.  The receipts were for various costs and it was not possible to show they were specifically for the child; essentially they were for family expenses which included the child. When she purchased groceries and food she would drop them off for the child at his brothers’ house; she would provide these items for all the children.

3. Ms Colburn gave evidence that she continued to make all the decisions in relation to the child’s welfare and always had 100% care of the child and there was no change in care.  Ms Colburn told the tribunal that the child did not need medical support in that period, but if he did need such support, she would have made the arrangements.  She continued to provide emotional and parental support to the child and continued to be there if needed.  Ms Colburn gave evidence all the children had bad COVID for two weeks in that time and they quarantined so the child could not come to see her in this period, however she was still responsible for the child.

4. Ms Colburn submitted that the child may have told his father that he was living with his brothers because he may not have felt comfortable telling him he was living with Ms Colburn and her partner.  It was not the case that the child was living with his brothers, he only stayed with them on and off for a couple of nights.  Ms Colburn gave evidence the child continued living with her and simply made the best of difficult circumstances by staying with his brothers from time to time.

5. Ms Colburn told the tribunal the arrangements made at the time were due to losing their accommodation with limited notice and they could not secure new accommodation within the notice period so they had to manage in difficult circumstances.  They looked after the younger children and made sure they had the most secure accommodation at the time.  Ms Colburn told the tribunal she is a strong person and “managed to rough it for a bit”.

6. Ms Colburn told the tribunal that she has care of six children, three of her own and her partner’s two sisters who are Aboriginal and a child from [Country 1] they care for.  They lived in a three bedroom house previously which could not cater for everyone so her two older sons moved out to live independently in an apartment, approximately a week before the whole family moved out. 

7. Ms Colburn submitted that the child was in her 100% care the whole time and all three of her sons know they can stay with her if they ever need to do so.  They are old enough to make their own decisions.  The three children are very close to her and she would do anything to ensure they are safe.   

8. In response to Mr McCouch’s evidence, Ms Colburn told the tribunal that she continued to hold a family private health insurance policy for all her children, including the child; however none of the children needed medical care at the time.  She confirmed there was no guardianship arrangement in place for the child (with his brothers) and she did not receive payments from any source in relation to the child’s support.  Ms Colburn told the tribunal that she included the child’s name in her new rental agreement from 27 May 2022, and listed all the people living in the house.  She paid rent weekly.

9. Ms Colburn submitted that she provided receipts of various expenses including food, and this included food for the child.  It was not possible for her to provide a separate receipt just showing costs for the child.  The expenses were for the whole family, which included the child.  Ms Colburn told the tribunal she provided funds to the two older children to cover the child’s costs and she also incurred a lot of fuel expenses because she had to drive from one side of [City 1] to the other.

10. Ms Colburn submitted she continued to provide financial support to meet the child’s needs and never stopped providing this support. 

Mr McCouch’s evidence and contentions

1. Mr McCouch told the tribunal that he was told by the child that he was living with his brothers because he did not want to sleep in a tent or on the street.  The two older brothers are in their 20s.  Both sons work full time and pay rent and meet their own expenses.  Mr McCouch told the tribunal that he understands the two older sons manage their household and cook their own meals, do the shopping for the household and clean up.  Mr McCouch told the tribunal he then contacted the older brothers who confirmed the child was living with them so he then contacted the Agency to advise that the child was living with his brothers and not Ms Colburn.  The Agency then stopped deducting child support from his pay.

2. Mr McCouch submitted that he considered the two older children would be like guardians for the younger child and the child support would be paid directly to them but nothing happened and everything was put on hold by the Agency.  Mr McCouch acknowledged child support was stopped and he told the tribunal that if the older brothers needed anything they could contact him, but they did not contact him. 

3. By way of background Mr McCouch claimed Ms Colburn abandoned him and the children in [Town 1].  He then re-partnered and the child did not like Mr McCouch’s new partner so he went back to live with Ms Colburn.

4. Mr McCouch acknowledged the period the child lived with his brother was some six to eight weeks, then the child stopped living with his brothers and moved back with his mother. The child moved back with his mother in July and it is now November and they are waiting for the Agency to sort out the issue.  Mr McCouch thought it would be sorted out earlier.  He is unsure how it will be sorted out but would agree to pay child support arrears for the child as it is now well past that two month period he claims the child was outside of his mother’s care.  

5. In response to Ms Colburn’s evidence, Mr McCouch told the tribunal he agrees to pay child support for the child.  He does not want to have an argument with his mother.  He claims there was a period of some six to eight weeks when the child was not in Ms Colburn’s care and otherwise he is happy to support his child.    

The tribunal’s consideration

1. There is no dispute the child was in Ms Colburn’s 100% care prior to the claimed change in care.  The circumstances around the change in care are that Ms Colburn lost her rental accommodation and effectively the family was homeless for a period of time from late April 2022, until the new accommodation was secured on 27 May 2022.  Mr McCouch contends there was a limited period of change in care which he claimed was six to eight weeks, and the child returned to Ms Colburn’s care.  It was Mr McCouch’s evidence that he was told by the child that he was living with his brothers and this was later confirmed by his brothers. 

2. Ms Colburn acknowledged the child stayed with his brothers from time to time, while she and her family were looking to secure accommodation. She submitted that the child may have told Mr McCouch that he was living with his brothers, and suggested this may have been because the child did not want to tell his father that he was actually living with Ms Colburn and her new partner, because his father would disapprove. It was Ms Colburn’s evidence that her family’s living arrangements at the time were difficult and effectively the family was homeless, living in various settings, including sleeping in tents, their car, a caravan park and the showgrounds.  She gave evidence that the child slept in a swag in a tent and went to stay with his brothers due to inclement weather, followed by the family being quarantined due to COVID.  It was Ms Colburn’s submission that there was no change in care and she continued to have overall responsibility for the child, and therefore had ongoing care of the child. 

3. The question for the tribunal is whether Ms Colburn was providing ongoing emotional and financial support to the child that would mean she was still considered as providing care for the child in spite of the fact he may not have been residing with her continually for the whole period.  To determine the extent of care in the circumstances of this case, the tribunal must consider:

   ·     the extent of control of the child, including overall responsibility, making major decision in relation to who child spends time with, health, education, discipline, recreational/social activities, arrangements for others to meet child’s needs; 

   ·     extent of meeting child’s needs – accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport, extra-curriculum activities;

   ·     extent the person pays for the costs of meeting child’s needs;

   ·     extent otherwise provides financial support for child;

   ·     extent the child provides for his/her own needs;

   ·     extent child is financially independent or financially supported from another source.

4. Ms Colburn provided detailed evidence to the tribunal and previously to the Agency, about her continuing responsibility for the child’s care.  Ms Colburn gave evidence she had to leave a rental property which was sold, and while looking for alternative accommodation her family stayed in a caravan park, a tent and the family car.  Ms Colburn provided some written evidence including rental payment details, confirmation of rental, self-written statement, photographs and various receipts (from Woolworths, Puma Energy, Domino’s, Big W and KFC).  Ms Colburn also gave detailed direct evidence to the tribunal about the ongoing care she provided to the child.  The tribunal accepts the child was not independent or financially supported from another source and Ms Colburn continued to have overall responsibility for the child. 

5. On the available evidence, the tribunal was satisfied there was no change in care of the child and the care of the child was 100% to Ms Colburn and 0% to Mr McCouch as at 2 May 2022.    

DECISION

The tribunal sets aside the decision under review made by the objections officer on 25 August 2022, and in substitution, decides that the care percentage of 100% for Ms Colburn and 0% for Mr McCouch, applies to the administrative assessment for the child from 2 May 2022.