Cramton and Cownies (Child support)

[2024] AATA 2018

Cramton and Cownies (Child support) [2024] AATA 2018 (24 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/PC027498

APPLICANT:  Mr Cramton

OTHER PARTIES:  Child Support Registrar

Ms Cownies

TRIBUNAL:Member A Ryding

DECISION DATE:  24 April 2024

DECISION:

The decision under review is affirmed.

(That means that this application is unsuccessful.)

CATCHWORDS 
CHILD SUPPORT – change of assessment – percentage of care – there has been no change in care – care percentages are accurately reflected in 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 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. This is an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision of Services Australia – Child Support (Child Support) regarding the percentage of care attributable to each of the parents in this matter.

2. The applicant, Mr Cramton, and one of the other parties to this application, Ms Cownies, are the parents of two children, one of whom is relevant to the present application, [Child 1] (born [date] 2006).[1]

   [1] The Tribunal notes that Mr Cramton and Ms Cownies’ other child, [Child 2], was the subject of a separate application to the Tribunal in 2023.

3. On 19 April 2024, the Tribunal conducted a hearing in this matter by MS teams audio. Mr Cramton and Ms Cownies participated, Child Support did not participate and instead relied upon its documents.  The hearing took place by way of a shuttle hearing, in which the Tribunal spoke with and took evidence from each party separately. This is addressed further below.

4. Before the Tribunal were hearing papers supplied by Child Support, numbered 1 to 162 (the hearing papers).  

5. Mr Cramton and Ms Cownies provided evidence on affirmation at the hearing.  Mr Cramton did not have the hearing papers with him. However, as discussed below, this matter turns almost entirely on oral evidence.

6. The Tribunal has had regard to all of the documents provided to it that appear relevant to the matters in issue, and to the evidence provided by Mr Cramton and Ms Cownies. Reference below is made only to the documents and evidence relevant to this decision.

7. Mr Cramton and Ms Cownies have had a registered child support case in relation to [Child 1] since 23 June 2008.

8. The Tribunal understands that a court order providing for care of [Child 2] and [Child 1] was made by the Family Court on 30 August 2014 but has not seen that court order.[2]

   [2] The Tribunal’s understanding comes from Child Support’s file note of a call with Mr Cramton on 30 August 2023 (folio 66).

9. From 1 February 2022, care was recorded as 0% to Mr Cramton and 100% to Ms Cownies.

10.  On 30 August 2023, Mr Cramton reported a change in care for [Child 1] of 0% to Ms Cownies and 25% to Mr Cramton, from 30 April 2023 (folio 66). From Child Support’s file note, Mr Cramton informed Child Support that [Child 1] had moved out of her mother’s house, moved in with a friend and was working, from 30 April 2023.

11.  On 10 October 2023, Child Support decided to reflect care of [Child 1] as 0% to Ms Cownies and 0% to Mr Cramton, from 30 April 2023 (folio 70 and following). It appears that Child Support was unable to speak with Ms Cownies prior to making that decision, nor (it appears) did she receive Child Support’s letter dated 29 September 2023 asking her to provide evidence by 9 October 2023 (folio 67) until 9 October 2023 (refer Child Support’s file note of a call with Ms Cownies on 11 October 2023, folio 76).

12.  Ms Cownies objected to that decision on 11 October 2023 (folio 78). The file note of her call with Child Support prior to formally making an objection (folio 76) records:

Queried where [Child 1] is residing - Ms Cownies advised with her. I asked if there has been any change in circumstances that may have promoted this. Ms Cownies advised no and explained there is a restraining order for Mr Cramton against herself and [Child 1] so he would not even know. He is not permitted to make enquiries or contact etc in regards to either of them.

13.  Ms Cownies’ formal objection on 11 October 2023 (folio 78) records as follows:

Ms Cownies states no change happened to the care of [Child 1] on 30 April 2023. Ms Cownies was  providing 100% care of [Child 1], and Ms Cownies continues to provide 100% care of [Child 1]. Ms Cownies told us [Child 1] has not applied for payments in their own right. [Child 1] studies courses face-to-face with an educator to take into consideration [Child 1]’s special circumstances and this was arranged by [Child 1]’s school. Ms Cownies continues to be the parent meeting [Child 1]’s essential needs such as; food, clothing, accommodation, essential education, essential medial, etc. Ms Cownies advised Mr Cramton provided incorrect information to Child Support as [Child 1] has not moved out of home, and [Child 1] is not living with a friend or working. Ms Cownies advised there was a court order relating to the care of [Child 1] however the court order has not been followed [redacted].

14.  On 9 December 2023, Child Support provided its decision in respect of Ms Cownies’ objection (the Objection Decision) (folio 62). Child Support allowed Ms Cownies’ objection, refusing to reflect the care of [Child 1] as 0% to Ms Cownies and 0% to Mr Cramton from 30 April 2023. Child Support determined that care would be recorded as 100% to Ms Cownies and 0% to Mr Cramton, from 30 April 2023. That is, that there should be no change to the care record following Mr Cramton’s care notification (the care stayed the same).

1. On 9 February 2024, Mr Cramton applied to the Tribunal for review of the Objection Decision. Mr Cramton’s ground for seeking review was that his children do not live with Ms Cownies.

ISSUES

16.  The assessment by Child Support and the provision of child support by Child Support are governed by the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

17. Part 5 of the Assessment Act sets out the way in which the annual rate of child support payable by a parent for a child for a day in a child support period is to be calculated. A critical element of that calculation is each parent’s “percentage of care” for the child, which falls to be determined under sections 49 to 54E of subdivision B of Division 4 of Part 5 of the Assessment Act.

18.  It also involves a consideration of whether, within the “care period”, there is a pattern of “actual care” that the Registrar is satisfied the person responsible has had or is likely to have for the child in question, or no pattern of care.

19.  The issue for consideration in this application is whether there has been a change in care and, if there has, what are the new percentages of care?

CONSIDERATION

What is the care period?

20.  In determining the pattern of care parents have for a child, it is usual to look at the pattern of care over a specific care period.  A “care period”[3] is calculated from the day on which the actual care of a child changed and is stated in the Assessment Act to be “such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

[3] Defined in subsection 5(1) of the Assessment Act to have the meaning given by paragraph 49(1)(a), subparagraph 49(1)(b)(ii), paragraph 50(1)(a) or subparagraph 50(1)(b)(ii).

21.  The Child Support Guide states that it will:

generally be a 12-month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12-month periods, unless otherwise advised.[4] 

[4] Noting that the Child Support Guide does not have legislative effect and is merely persuasive.

22.  The care period is used only for assessing whether there is a pattern of care and, if there is, what that pattern is. It does not set the period over which the care assessment applies.

23.  In this case, a 12-month period would be from 30 April 2023 and the Tribunal finds that this is the most appropriate care period to apply in this matter.     

What is the pattern of care?

24. As to what can be considered in determining the pattern of care, the term “care” is not defined in the Assessment Act or the Registration and Collection Act. Subsection 54A(1) of the Assessment Act states that the Child Support Registrar may determine actual care by reference to the number of nights the Registrar is satisfied the child was, or is likely to be, in the care of the person during the care period.  There are various other methods that can be used to determine actual care.

25.  In the present case, Child Support based its assessment on nights in care. The Tribunal finds that this is the most appropriate method of determining care, in circumstances where no other method appears preferrable. For example, there is no suggestion that [Child 1] spends part of her days with one parent and part with the other.

26.  The Federal Court has made it clear that Tribunal is not limited to considering care up to the point in time of the original care determination. Instead, the Tribunal must consider evidence after date of notification of the change in care, and up to the date of the Tribunal’s decision.[5]

[5] Child Support Registrar v DQFY [2023] FCA 601.

27.  It is common for the Tribunal, in care percentage matters, to consider material such as care calendar, diary entries, text messages or other contemporaneous documents. Here, there are only two documents. The first is a family violence restraining order. Although the order is not in the hearing papers, both Mr Cramton and Ms Cownies agreed that the restraining order was taken out by Ms Cownies in or about November 2022 for the benefit of Ms Cownies, [Child 2] and [Child 1].

28.  The second document is a letter from the Western Australian Department of Education dated 21 November 2023 (folio 98). Other than these documents, the only evidence before the Tribunal is the competing testimonies of the two parents.

29.  As noted above, the hearing took place by way of a shuttle hearing, which meant that each party could not hear the evidence the other party gave. Great care was taken by the Tribunal to put the evidence of one party to the other and give that other party the opportunity to respond. Where information was determined by the Tribunal not to be relevant to the present matter, it was not put to the other party. This decision is based only on evidence given by one party where the other party had the opportunity to respond to that evidence.

30.  The evidence of the two parents on key issues is as follows.

31.  Mr Cramton gave evidence as follows:

• [Child 1] had not lived with her mother for at least a couple of years and has been living with her boyfriend. He said he knew this because his son, [Child 2], lives with Mr Cramton and told him. Mr Cramton also said that [Child 1]’s boyfriend is [Child 2]’s best friend. Mr Cramton did not know the boyfriend’s name.

• He said that the last time he spoke to [Child 1] was in a conversation with his children in his care in February 2023, the day before Mr Cramton’s wedding (which the children did not attend). He said that [Child 1] told him she was seeing her boyfriend and [Child 2] said, “That’s bullshit, you’re living with him”.

• Mr Cramton said that [Child 1] ‘s boyfriend had also told him that they were living together. He said that he met [Child 1] ‘s boyfriend once in the street in [Town 1] around 12 months ago.

• Mr Cramton told the Tribunal that there was a protection order against him that Ms Cownies obtained around 12 months or two years ago. She obtained it on the same day that he obtained an order against her and she said that the order prevented him from speaking to Ms Cownies and his children (Mr Cramton later told the Tribunal that it was subsequently amended to allow him to speak to [Child 2]). He said Ms Cownies obtained it after he went to her home with around $20,000 to pay outstanding child support.

• Ms Cownies’ house has two bedrooms only and even if [Child 1] wanted to stay there she could not because the second bedroom is rented out. There is physically nowhere for [Child 1] to sleep.

32.  In response, Ms Cownies told the Tribunal:

• She did know the name of [Child 1]’s (former) boyfriend. Ms Cownies shared the name with the Tribunal and said that fact that Mr Cramton did not know his name showed the lack of contact he had had. Both [Child 1] and her boyfriend had lived at Ms Cownies’ house before they broke up, around two years ago.

• She said that [Child 1] does not even call Mr Cramton “dad” and never talks to him.

• Both children had been living with Ms Cownies, however she had thrown [Child 2] out a couple of weeks ago.

• Ms Cownies said that she had a three-bedroom home and that Mr Cramton had never been inside the house. Both [Child 2], when he lived with Ms Cownies, and [Child 1] have their own room. There was no way she could have them in the same room. Ms Cownies said it was correct that she had a side room that she rented out which was connected to the house.

• As far as she was aware, [Child 1]’s boyfriend only met Mr Cramton once, at Mr Cramton’s house.

• A caseworker from the Department of Education comes to Ms Cownies’ house to discuss with Ms Cownies and [Child 1] a plan for [Child 1] using the Department of Education’s WorkSkil Australia program. Ms Cownies referred to the letter at folio 98 from the Department of Education in this regard. Miss Cownies noted that [Child 1] doesn’t sleep very well so Ms Cownies often has to go wake her up for the meeting

• Whilst the WorkSkil Australia program helps with paying various things related to [Child 1] seeking work, Ms Cownies pays for food, clothes and everyday things, as well as petrol.

33.  In response, Mr Cramton said:

• [Child 2] told him a week ago, [Child 1] is living with her boyfriend, his best mate.

• The boy Ms Cownies refers to coming to Mr Cramton’s house was a “complete different bloke”, it was around three years ago and [Child 1] was too young at that stage to have a boyfriend. He was “a skinny blonde fellow, a quiet lad who pinched cigarettes off my mum”.

• Mr Cramton knows that Ms Cownies’ house is a two-bedroom house because he’s gone on realestate.com and because his children have told him. He has also been in the house a few times when she was not there. Ms Cownies has lived there for six or seven years. When he was inside the house he saw that there were two bedrooms only, a little kitchen at the back, two bedrooms on the left, lounge room on the right and the front door goes off the lounge room. It is a very old house that is small but has large rooms.

• In relation to the caseworker meeting regularly with [Child 1], Mr Cramton said it must be a one-off thing and wanted to see the dates of the appointments. He said that there was no such case worker living in [Town 1] so someone would have had to come from [City 1] (which is further away).

• He disputed that Ms Cownies had paid for petrol and said that Ms Cownies did not have her licence, she had lost it and never got it back and around four weeks ago ([Child 2] had told Mr Cramton) Ms Cownies’ car had been impounded. [Child 1] did not have a driver’s licence.

34.  In response, Ms Cownies said:

·     The person who was [Child 1]’s boyfriend until about a year ago had brown hair, medium build and does not smoke.

• As regards her house, it was correct that she had been living there for six or seven years. There was a court order a while ago that [Child 2] and [Child 1] must have separate rooms so after that court order, Ms Cownies put walls in to divide what was the lounge room into two bedrooms and a smaller lounge room. The social worker came into the house afterwards to check that there were separate bedrooms for the two children.

• Miss Cownies said that [Child 1] did have a driver’s licence, but that her eldest son, [Child 3] (who the Tribunal understands has a different father), uses her car for work, as he is a [occupation]. If a friend takes [Child 1] into [City 1], Ms Cownies will pay for petrol.

• The Department of Education case worker lives in [Town 1].

35.  In response, Mr Cramton said:

·     In relation to Ms Cownies’ house, he went over and knocked on the door just before she took out the restraining order, the door was open, it was still a big room with an empty fish tank and a lounge. This was under 12 months ago when he went to offer her money.

• Mr Cownies maintained that [Child 1] did not have her driver’s licence, asked why she would have friends drive her to [City 1] and stated that [Child 3] had two of his own cars. Mr Cramton said he was with [Child 2] recently when [Child 2] had a phone conversation with [Child 3] in which [Child 3] offered to give him his old car.

36.  The Tribunal places little weight on the letter from the Department of Education dated 21 November 2023 as all it shows is that [Child 1] is enrolled in the Transition to Work program, run through WorkSkil Australia. It does not show that the caseworker from the Department of Education attends meetings with [Child 1] and/or Ms Cownies at Ms Cownies’ house.

37.  The Tribunal has concerns as to the credibility of both parties, and notes the financial impact on each of them depending on the way in which the Tribunal. However, the Tribunal has determined that, overall, Ms Cownies’ evidence should be preferred.

38.  Mr Cramton’s knowledge of [Child 1]’s living arrangements is entirely second hand and is based on what he told the Tribunal his son, [Child 2], has told him.

39.  The Tribunal does not accept that Mr Cramton met with [Child 1]’s boyfriend (whose name Mr Cramton does not know despite him being his son’s best friend) on the street in [Town 1]. The Tribunal notes that, when Mr Cramton reported the change in care to Child Support on 30 August 2023, he said that [Child 1] was living with a friend and was working, and did not say she was living with her boyfriend (folio 66).

40.  Whilst the Tribunal accepts that Mr Cramton may have been to Ms Cownies’ house (possibly in violation of the restraining order, depending on when he visited), both Mr Cramton and Ms Cownies referred to a social worker requiring separate bedrooms for [Child 2] and [Child 1]. The Tribunal considers it more likely that Ms Cownies did separate the rooms and the social worker inspected after the subdivision of the large room.

41.  Whilst there were inconsistencies in Ms Cownies’ evidence on specific points, they were insufficient to detract from a conclusion that the evidence supports that there has been no change in care, and that [Child 1] continues to live with Ms Cownies.

42.  In all the circumstances, therefore, the Tribunal finds that care of [Child 1] remains 0% with Mr Cramton and 100% with Ms Cownies (that is, the same decision reached in the Objection Decision dated 29 December 2023).

43.  As the care percentages are accurately reflected in the administrative assessment, the care change application lodged by Mr Cramton on 30 August 2023 is refused.

DECISION

The decision under review is affirmed.

(That means that this application is unsuccessful.)