Coolidge and Coolidge (Child support)

Coolidge and Coolidge (Child support) [2023] AATA 2130 (5 June 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC025091
APPLICANT:  Mr Coolidge
OTHER PARTIES:  Child Support Registrar
Ms Coolidge

TRIBUNAL:Member J Thomson
DECISION DATE: 05 June 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, determines in relation to [Child 1] the new care percentage determinations of 100% to Ms Coolidge and 0% to Mr Coolidge apply from 23 May 2022, notified on 16 June 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – 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

Mr Coolidge and Ms Coolidge are the parents of [Child 1], born 2005. A terminating event occurred when [Child 1] attained her 18th birthday [in] May 2023.
Mr Coolidge seeks review of an objection decision made by Services Australia – Child Support (Child Support) on 11 November 2022. This decision disallowed Mr Coolidge’s objection to an earlier decision by Child Support on 3 August 2022 to reflect the care for [Child 1] as 90% to Ms Coolidge and 10% to Mr Coolidge from 23 May 2022, notified to child support on 16 June 2022.
The Tribunal heard the matter on 31 March 2023. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 142), admitted into evidence and marked Exhibit 1, and documentation provided by Ms Coolidge (folios B1 and B2) admitted into evidence and marked Exhibit B.
Both parents had copies of the documents provided by Child Support with them at the hearing. Ms Coolidge had copies of her Exhibit B documents with her for the hearing; Mr Coolidge did not have copies of Ms Coolidge’s Exhibit B documents with him at the hearing but was content for the hearing to proceed.
Mr Coolidge has provided additional documentation (folios A1 to A7) These have been admitted into evidence and marked Exhibit A. The Tribunal did not consider it necessary to send copies of documents A5 to A7 to Ms Coolidge for her consideration and comment because the contents were not relevant to the issues in the matter and did not warrant further comment but will send her those copies with the Tribunal’s decision.
Ms Coolidge has provided further documentation in response to directions issued by the Tribunal at the hearing (folios B3 to B28). These have been added to her Exhibit B documents and copies have been sent to Mr Coolidge for his consideration and comment.

ISSUES

The issues which arise in this case are:
· has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new determinations made; and if so,
· from what date should the new percentages of care determinations apply?

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibits 1, A and B before the Tribunal at the hearing and submitted by the parents post hearing.
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no 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”. Section 50 applies, relevantly, if the parent “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”. Both sections reflect the idea that Child Support makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify Child Support and a new care determination can be made. However, the legislative test at first instance and on review remains the same; what happened up until the date of notification and what was likely to happen thereafter?
Prior to Ms Coolidge’s notification of a change in care for [Child 1] on 16 June 2022, the care percentages being assessed by Child Support were 86% to Mr Coolidge and 14% to Ms Coolidge.
To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care by reference to an appropriate care period. Child Support generally considers a care period of 12 months to be appropriate, an approach the Tribunal intends to adopt here commencing from 23 May 2022.
Child Support’s file records Exhibit 1 pages 9 and 10 reflect Ms Coolidge contacting them on 16 June 2022 to notify a change in care for [Child 1], informing them that [Child 1] had made a decision to leave her father’s house in the southern highlands of New South Wales (NSW) and move back to live with Ms Coolidge in Sydney where she had enrolled herself at [School 1] and accepted a position with [Employer 1].
Child Support’s file also records Ms Coolidge advising them that the change in care had occurred on 23 May 2022. At the hearing, Ms Coolidge gave evidence that at the time she notified Child Support of the change in care for [Child 1], she understood that [Child 1] would be maintaining some level of contact with Mr Coolidge and she ascribed that level of contact as equating to 10% care to Mr Coolidge.
At the hearing, Mr Coolidge gave evidence that there had been a falling out between him and [Child 1] shortly prior to her leaving his house in [Town 1] in the southern highlands of NSW and going to live with her mother, Ms Coolidge, in Sydney. He gave evidence of having issues with [Child 1] over her association with married men, his having caught her drinking alcohol and travelling to Sydney to attend parties, as a consequence of which she had left his house at [Town 1] and gone to live with her mother, Ms Coolidge, in Sydney.
In response to questioning by the Tribunal at the hearing, he acknowledged and agreed he has not had any contact with [Child 1] since she went to live with Ms Coolidge in Sydney. He also acknowledged in response to questioning by the Tribunal at the hearing that he had no evidence as to where [Child 1] was living in Sydney.
His case at the hearing was based on his challenge to Ms Coolidge’s evidence that [Child 1] was living with her at her rented premises at [Address 1] in Suburban Sydney, contending that [Child 1] was living independently with friends of Ms Coolidge’s in their house in [Suburb 1], within the pupil catchment area of [School 1] so that she could enrol at that school.
He also submitted it was within the Tribunal’s power to obtain evidence from the NSW transport department, Transport for NSW, reflecting [Child 1]’s current residential address which he contended was other than Ms Coolidge’s residential address at [Address 1].
As set out in the Reasons which follow, the Tribunal was satisfied there was sufficient evidence before it at the hearing to be satisfied as to the address at which [Child 1] has been residing from 23 May 2022 and refused his request that the Tribunal make the further enquiries of the NSW transport authority as suggested by him at the hearing.
He acknowledged and agreed that [Child 1] had enrolled herself as a Grade 11 pupil at [School 1] on or about 7 June 2022, asserting she had paid any necessary school fees from her own savings, noting that he believed she had savings amounting to $20,000 when she left his house in [Town 1] to go and live with Ms Coolidge in Sydney.
Ms Coolidge provided copies of various NSW government school statements of account reflecting charges for school course fees, uniforms and other curricular school activities and expenses rendered by [School 1] in June 2022 together with receipts for the payment of those statements (see pages 19 to 21 and 23 of Exhibit 1). In response to questioning by the Tribunal at the hearing, Mr Coolidge acknowledged and agreed that Ms Coolidge had paid for the items reflected in the school’s account statements, and that the [Sportswear] tax invoice at page 23 of Exhibit B related to [Child 1]’s [School 1] uniform.
Ms Coolidge’s evidence at the hearing was to the following effect.
She gave evidence that [Child 1] came to stay with her on 23 May 2022 at her rented premises at [Address 1], which she described as a four-bedroom house where [Child 1] has her own room and has continuously resided with her at that address to the date of hearing.
She gave evidence that [Child 1] has held a driver’s licence for the past two years and has her own motor vehicle. She provided a certified copy of [Child 1]’s current driver’s licence reflecting her changed address at [Address 1] (see page B2 of Exhibit B) and a copy of correspondence from the NSW transport department dated 23 November 2022 recording the change of [Child 1]’s current address on her driver’s licence to [Address 1] (see page B26 of Exhibit B).
Ms Coolidge gave evidence that [Child 1] had enrolled herself on 7 June 2022 as a Grade 11 student at [School 1] shortly after she came to live with her in May 2022 (see correspondence from [School 1] dated 22 August 2022 at page 69 of Exhibit 1) and is still attending that high school as a Grade 12 pupil. Ms Coolidge gave evidence that [Child 1] had decided to enrol at [School 1] as part of a fresh start, free from the bullying she had experienced at her former high school in [Town 1]. A copy of correspondence from [Town 1] High School at page 68 of Exhibit 1 records [Child 1] leaving that school on 3 June 2022.
Ms Coolidge acknowledged [Child 1] had utilised the address in [Suburb 1] of family friends, [Mrs A] and her husband, to facilitate her enrolment at [School 1]. Ms Coolidge provided a statutory declaration sworn by [Mrs A] dated 4 April 2023 attesting to the support she provided [Child 1] in securing her enrolment at [School 1]. Her declaration also states [Child 1] has never resided with [Mrs A] and her husband, nor have they ever provided any financial support for [Child 1].
Ms Coolidge gave evidence that [Child 1] regularly drives herself to school at [School 1] and on other occasions, Ms Coolidge drives her to school from her house at [Address 1].
Ms Coolidge also gave evidence regarding [Child 1]’s undertaking work experience at Ms Coolidge’s place of employment, [Employer 2] from 23 May 2022 to 27 May 2027. [Mr B], the principal of [Employer 2] provided a statutory declaration dated 5 April 2023 attesting to [Child 1] undertaking work experience over the course of that period at his place of business at [Address 2], He also attests to [Child 1] and Ms Coolidge informing him that [Child 1] had moved back to Sydney to live with Ms Coolidge at [Address 1] permanently. His sworn declaration and the work experience form completed by him on 17 May 2022 appear at pages B5 to B7 of Exhibit B.
Ms Coolidge also provided copies of other [School 1] invoices, receipts and banking records reflecting payments from Ms Coolidge’s [Bank 1] Account for the following [School 1] items:
·Year 11 school fees contribution – $100 – dated 27 May 2022 (see pages B10 and B11, Exhibit B)
·[School 1] uniform item – $172 – dated 29 May 2020 (see pages B11 and B12, Exhibit B)
·Year 11 funds and year 12 2023 school jacket – $100 – dated 27 June 2022 (see pages B13 and B14, Exhibit B)
·Course charge for Dance – $10 – dated 1 July 2022 (see pages B15 and B16, Exhibit B)
·Excursion fees for [deleted] – $27– dated 24 July 2022 for (see pages B17 and B18, Exhibit B).
·[Child 1]’s Year 11 October 2022 camp excursion and food costs – $390 – dated 15 September 2022 (see pages B19 and B20 OF Exhibit B)
·[Child 1]’s Sydney [specified] excursion costs – $31 – dated 21 October 2022 (see pages B21 and B22 of Exhibit B) and
·Course change fee – Year 12 Business Services 2023 – $25 – Dated 13 April 2023.
Ms Coolidge also gave evidence of [Child 1] having been employed as a casual, part-time employee at [Employer 1] since June 2022 and provided an undated certificate, (both redacted and unredacted) to that effect signed by the [manager], [Mr C] (see page 79 of Exhibit 1 (redacted version) and page B24 of Exhibit B (unredacted version).
Additional evidence of [Child 1]’s address also provided by Ms Coolidge post hearing included a letter from the Australian Taxation Office addressed to [Child 1] at her [Address 1] address dated 27 July 2022 confirming the identity of her superannuation provider, [Super Fund 1] (see page B26 of Exhibit B) and a letter from [Child 1]’s driving instructor, [Mr D], from whom she had been taking instruction since 11 June 2022, recording her residential address as [Address 1] (see page B27 of Exhibit B).
The Tribunal is satisfied the evidence on balance is that [Child 1] left Mr Coolidge’s house at [Town 1] on 23 May 2022, following a disagreement with Mr Coolidge, and went to live permanently with Ms Coolidge at her [Address 1] house where she has continued to reside since 23 May 2022, and has been a pupil at [School 1] in Grades 11 and 12 since 7 June 2022.
The Tribunal is satisfied there was a change in the care for [Child 1] from 23 May 2022 when she went to live permanently with Ms Coolidge who has provided 100% care for her since that date, the likely pattern of care from that date onward, and that since 23 May 2022, the likely pattern of care provided by Mr Coolidge for [Child 1] was nil.
The Tribunal considered the provisions of section 54G do not apply in this case. Although Mr Coolidge has had at least regular care (86%) of [Child 1] prior to 23 May 2022, the circumstances in which [Child 1] went to live with Ms Coolidge as set out above suggest she decided to do so on a permanent basis for the remainder of the child support assessment case and it is unlikely Ms Coolidge would be making her available to Mr Coolidge for child support purposes as contemplated by the provisions of paragraph 54G(1)(b) of the Act.
The Tribunal finds Ms Coolidge notified Child Support on 16 June 2022 of the change in care which occurred for [Child 1] on 23 May 2022 and will therefore revoke the existing care percentages of 86% to Mr Coolidge and 14% to Ms Coolidge pursuant to section 54F of the Act and determines new care percentages for [Child 1] of 100% to Ms Coolidge pursuant to section 50 of the Act and 0% to Mr Coolidge pursuant to section 49 of the Act.
As the notification of the change in care by Ms Coolidge was made to Child Support within 28 days of the change in care actually occurring on 23 May 2022, pursuant to paragraph 54F(3)(a) of the Act, the existing care percentages of 86% to Mr Coolidge and 14% to Ms Coolidge is revoked on 22 May 2022, the day before the change in care day. The new care percentages of 0% to Mr Coolidge and 100% to Ms Coolidge will apply in the assessment from 23 May 2022.

DECISION

[2023] AATA 2130

5 June 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Remedies