Cownie and Adshead (Child support)

[2021] AATA 3349

Cownie and Adshead (Child support) [2021] AATA 3349 (7 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021162

APPLICANT:  Mr Cownie

OTHER PARTIES:  Child Support Registrar

Ms Adshead

TRIBUNAL:Member M Reid

DECISION DATE:  7 July 2021

DECISION:

The Tribunal sets aside the decision under review and replaces it with the decision that both the mother and the father had 50% care of the child from 29 June 2020. This means that the appeal was successful.

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

1. Mr Cownie (the father) and Ms Adshead (the mother) are the parents of one child (the child) subject to a child support assessment. Prior to 29 June 2020 the mother was assessed as having 100% care of the child.

2. On 10 March 2021 Services Australia overturned on objection its initial decision on 6 August 2020 to record 100% care to the father and 0% to the mother from 29 June 2020. (“the original decision”). The mother was subsequently recorded as having 100% and the father 0% care from this date (the “original decision”).

3. A new care decision was made on 13 October 2020 and is not the subject of this appeal.

4. A court order on 18 May 2009 states that the father will have care of the child for five nights every fortnight. But care was 100% to mother before 29 June. Neither the mother nor the father complied with this court order prior to 29 June 2020.

5. On 22 July 2020, the father notified the agency to report a care change for the child as 100% to himself and 0% to the mother. He stated that the child was kicked out of home on 29 June 2020 but did not provide any evidence to support this claim. The mother did not respond to Services Australia’s correspondence regarding the father’s claim and the initial decision was made on 6 August 2020.

6. The mother objected to the initial decision on 22 December 2020. In support of her objection, she later supplied several third-party documents, including a letter from [Ms A], the mother of the child’s boyfriend on 1 January 2021 in which she stated that the child was living with her and that she was responsible for the child for “4 months until October 2020”. [Ms A] stated that she during this time she received a small amount of money from the mother, but none from the father.

7. In response to the mother’s objection, the father claimed he was solely responsible for the child from 29 June to 13 October 2020, when she returned to the care of her mother. He supplied several third-party documents dated 18–20 August 2020 to support his case. These documents state:

   I can confirm that (the child) is 100% in the care of (the father) as (the mother) abused her and kicked her out of the house on 29 June 2020. (The child) went into her fathers’[sic] care from this day and is very happy living there.

8. At the hearing the father stated that on the day the child left the mother’s care, she went straight to her boyfriend’s parents’ house. The child stayed there continuously until 13 October 2020, with the exception of a one-week period from 15 July 2020, when the father went to pick the child up and she stayed with him. The Tribunal asked the father why the statements submitted on 18 to 20 August contradicted this evidence, but the father was unable explain this contradiction. The Tribunal is also unsure why the father sought these statements around two weeks after the initial decision had been made in his favour.

9. In support of his claim that he was solely responsible for the child, on 25 June 2020 the father supplied statements of bank transfers made to the child during the care period in question. These amounts total $1,230 and the Tribunal notes that the father also gave money to the child both before and after the care period in question. Also within the hearing papers are bank statements showing that the mother sent $652 to the child during the same period. The mother also contributed some money to [Ms A] for the child’s care as stated above and both parents were involved in decision-making regarding the child’s schooling.

10. The mother’s objection on 22 December 2020 was made more than 28 days after the initial decision, therefore a decision to attribute a higher percentage of care to the mother would normally not normally be backdated to that date, according to section 87AA of the Child Support (Registration and Collection) Act 1988 (the Registration Act). Services Australia notified the mother in writing about the decision on 7 August 2020 at her reported address at the time. On 13 August 2020, the mother

    contacted the agency to report a change in care had occurred with (the child) and that she was now living with her boyfriend’s family 100%. At this time there is no record of us having a decision [discussion?] with the mother about the recent care decision.

    Services Australia was satisfied that this situation constituted special circumstances under section 87AA of the Registration Act and subsequently attributed 100% care to the mother from 29 June 2020.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Registration Act.

2. The law relevant to care percentage determinations is found in the Act. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies 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, 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 Services Australia makes point-in-time care decisions on the basis of what had happened up until the care decision is made and what is likely to happen thereafter. If for some reason what is likely to happen does not eventuate, a parent can notify Services Australia and a new care determination can be made. However, the legislative test in the first instance and on review remains the same: what had happened until the date of the original decision, and what was likely to happen thereafter.

3. Services Australia decided that the care pattern from 29 June 2020 constituted a change in care and the Tribunal agrees with this decision. The decision under review is the decision to attribute 100% care to the mother from 29 June 2020.

4. In the original decision, Services Australia decided that the father “has not provided any evidence to demonstrate he has provided financial or emotional support”. The father did subsequently supply evidence showing both to the direct and financial support he provided. In regard to direct support, i.e. accommodation, meals etc, the Tribunal finds that the father provided no pattern of care. The care period is approximately 15 weeks in duration and the Tribunal assesses that the father’s one week of direct care during this time constitutes a one-off block of care, rather than an established pattern of care. Similarly, it is evident that the mother also provided no direct care to the child during this 15-week period. However, there is sufficient evidence, both within the hearing papers and from the testimony given at the hearing, that both parents provided indirect support to the child via phone conversations with her and communication with her school.

5. The father supplied evidence of providing direct financial support to the child and the Tribunal accepts this evidence. However, the mother also contributed money, both directly to the child and to [Ms A], meaning that there was likely little difference between the amounts contributed by the father and the mother.

6. Services Australia decided that special circumstances existed that enabled the mother to object to the initial decision, which meant that the objection decision was backdated to 29 June 2020. The Tribunal, however, no longer needs to consider whether there were special circumstances as the objection decision is being set aside

7. The Tribunal is satisfied that a change of care event took place on 29 June 2020, and as a result the prior care arrangement is revoked as of 28 June 2020. The Tribunal is satisfied that both parents provided approximately equal amounts of indirect and financial support until 13 October 2020.

DECISION

The Tribunal sets aside the decision under review and replaces it with the decision that both the mother and the father had 50% care of the child from 29 June 2020.