Courson and Clother (Child support)

[2022] AATA 3505

Courson and Clother (Child support) [2022] AATA 3505 (19 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024156

APPLICANT:  Mr Courson

OTHER PARTIES:  Child Support Registrar

Ms Clother

TRIBUNAL:Member P Jensen

DECISION DATE:  19 August 2022

DECISION:

The decision to record Mr Courson as providing 0% care and Ms Clother as providing 100% care for [the child] with effect from 6 May 2022 is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review affirmed

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

1. Mr Courson and Ms Clother are the parents of [the child]. On 6 May 2022, Ms Clother applied to register a child support case with the Child Support Agency (“the CSA”). It subsequently decided to grant the application with effect from 6 May 2022.

2. The CSA also decided to record Mr Courson as providing 0% care and Ms Clother as providing 100% care for [the child]. An issue arises concerning the date or dates from which the CSA decided to applied those percentages of care. There are three possibilities. First, the CSA issued notices on 9 May 2022 which stated that Mr Courson was required to pay child support from 6 May 2022 and his rate of child support payable was based, in part, on the parents’ recorded percentages of care. That information suggested that the CSA had decided to record the percentages of care with effect from 6 May 2022. Second, the CSA’s computer system (to which the parents did not have access) recorded Mr Courson as providing 0% care with effect from 1 July 2021 and Ms Clother as providing 100% care with effect from 6 May 2022: page 143 of the hearing papers. Third, an objections officer effectively affirmed a decision to “reflect” Mr Courson as providing 0% care and Ms Clother as providing 100% care “from 1 July 2021”. The original decision-maker and the objections officer made the same findings of fact and, as a matter of law, those findings of fact should have resulted in Mr Courson being recorded as providing 0% care and Ms Clother being recorded as providing 100% care with effect from 6 May 2022: section 54B of the Child Support (Assessment) Act 1989 (“the Act”). Such a decision would “reflect” a finding of fact that Ms Clother had been providing full-time care from 1 July 2021. I will proceed on the basis that the original decision-maker made that decision and the correspondence dated 9 May 2022 was the CSA’s attempt to notify the parents of that decision. Mr Courson objected to that decision. An objections officer disallowed his objection. Mr Courson applied to the Tribunal for further review. Mr Courson and Ms Clother gave sworn evidence via an MS Teams audio hearing on 19 August 2021.

3. An earlier child support case ended in December 2019. At the hearing, Ms Clother explained that she and [the child] had been having “some issues” and [the child] had stayed with Ms Clother’s sister, [Ms A]. Mr Courson informed the CSA that Ms Clother had stopped providing care. Ms Clother initially disagreed with that information; she thought the arrangement was temporary. [Ms A] applied for [the child] to be a boarding student at [School]. When that application was accepted, Ms Clother confirmed that [the child] was on longer in her care and the child support case ended. To the extent that Mr Courson was able to comment on those matters, he agreed with Ms Clother’s evidence.

4. Ms Clother said [the child] was in [Ms A]’s care in 2020. Ms Clother said that she had “a bit” of contact with [the child] during 2020 and “things settled down”. Ms Clother said she gradually started spending more time with [the child] and by July 2021, [the child] had returned to her care, although Jamie continued (and continues) to board at [School].

5. In broad terms, Ms Clother’s evidence can be summarised as follows. As at May 2022, her pattern of overnight care was confined to most weekends and the school holidays, with [the child] otherwise boarding at [School]. However, in her opinion, her provision of care was not confined to that description of her overnight care.

6. Government policy has been developed to assist decision‑makers. The policy is contained in the Child Support Guide. The Tribunal is not bound by government policy but will follow it unless doing so would not result in the correct or preferable decision. Chapter 2.2.1 of the Child Support Guide includes the following, but I have changed the order in which it appears:

   Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period [see section 54A of the Act].

   …

   [I]n limited circumstances, a person may have care of a child who is not living with them for a period of time. For example, a person can provide care for a child who is at boarding school, in hospital or in separate accommodation. However, a person who simply supervises the child (e.g. a baby sitter, a child minder such as a grandparent or a schoolteacher) does not provide care.

   Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves. The Registrar will give weight to statements from both parents and any non-parent carers.

   …

   [W]here there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:

   ·To what extent the person has control of the child, including having overall responsibility for the child and making

   omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

   oarrangements for others to meet the needs of the child (delegated care).

   ·To what extent the person meets 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.

   ·To what extent the person pays for the costs of meeting the needs of the child.

   ·To what extent the person otherwise provides financial support for the child.

   ·To what extent the child provides for his or her own needs or has those needs met from another source.

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

7. It is appropriate to consider the matters listed above, but I am not confined to a consideration of those matters. Ultimately, a decision must be based on a consideration of the facts as a whole. Ms Clother’s evidence can be summarised as follows:

   ·      Ms Clother’s home is approximately 35 kilometres from [School]. During school terms, [the child] normally returns home on a Friday night or a Saturday, depending on what is happening at [School], and she normally returns to [School] in the evening on Sunday. [The child] normally catches the train if she is travelling during the day, and she is driven by Ms Clother if she is travelling at night. During school terms, [the child] is at Ms Clother’s home.

   ·      As [the child]’s mother, Ms Clother retains overall control and responsibility for her. [School] has a policy concerning students leaving school grounds: students are allowed to visit a particular shopping centre but they require parental (i.e. Ms Clother’s) permission to go to other locations. Ms Clother is responsible for decisions concerning [the child]’s health. When [the child] had COVID-19, she returned home and Ms Clother cared for her, which included organising testing, getting medication and taking her to a doctor. It has not been necessary for [School] to discipline [the child], but if that were necessary, Ms Clother would be consulted.

   ·      [Ms A] pays [the child]’s school fees, including the boarding fees, thereby relieving Ms Clother of those accommodation and food expenses. Ms Clother incurs additional utility and food expenses when [the child] is at home. Ms Clother pays for [the child]’s general clothing (but has not bought any school uniform items), selected educational items (such as books and stationery), transportation costs and extra-curricular activities. [The child] was previously [doing Activity 1] and is currently [doing Activity 2], and Ms Clother purchased the associated equipment.

   ·      Ms Clother and [the child] communicate regularly via “constant” text messages and daily phone calls. Ms Clother stated: “[The child] runs everything by my, what’s on her mind.” Ms Clother provides emotional support and guidance for [the child].

   ·      [The child] is employed by [School] to mentor and supervise younger students. Her income fluctuates but is normally between $50 and $100 per week. She spends that money on personal items such as make-up and snacks.

8. Mr Courson was generally not in a position to comment on the accuracy of Ms Clother’s evidence. Having heard from her, I accept her evidence on those matters. If Ms Clother were paying [School]’s fees, [the child] would clearly be in her full-time care. [Ms A]’s payment of those fees reduces Ms Clother’s costs of maintaining [the child], and that is something that could possibly form the basis of a departure application: see generally 2.6 of the Child Support Guide. In raising that possibility, I am not commenting on the merit, if any, of such an application. However, so far as Ms Clother’s care of [the child] is concerned, I am not persuaded that [Ms A]’s payment of those fees reduces Ms Clother’s provision of care. For those reasons, I find that when Ms Clother applied to register the child support case in May 2022, she had been providing, and was likely to continue to provide, full-time care. The CSA made the preferable decision.

DECISION

The decision to record Mr Courson as providing 0% care and Ms Clother as providing 100% care for [the child] with effect from 6 May 2022 is affirmed.