Craven and Craven (Child support)

[2022] AATA 4675

Craven and Craven (Child support) [2022] AATA 4675 (16 November 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024059

APPLICANT:  Mr Craven

OTHER PARTIES:  Child Support Registrar

Ms Craven

TRIBUNAL:Member J Thomson

DECISION DATE:  16 November 2022

DECISION:

The decision under review is affirmed.

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 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

BACKGROUND

1. Mr Craven and Ms Craven are the parents of [Child 1], born 2008.

2. Mr Craven seeks review of an objection decision made by the Child Support Agency (the Agency) dated 1 June 2022. This decision disallowed his objection to an earlier decision of the Agency dated 17 March 2022 to refuse to accept his change in care notification on 7 February 2022 and revoke the existing care percentages being assessed by the Agency of 100% to Ms Craven and 0% to Mr Craven from 30 September 2018, notified on 5 October 2018.

3. The Tribunal heard the matter on 13 October 2022. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Agency (Exhibit 1). Ms Craven’s legal representative, [Mr A] of [Lawyers] provided written submissions on behalf of Ms Craven, admitted into evidence and marked Exhibit B. Both parents had copies of these documents with them at the hearing.

ISSUES

1. The statutory provisions relevant to this review are found 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 the Agency 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 the Agency 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?

2. The issue which arises in this case is whether there was a change in the level of care being provided for the child, [Child 1], by Ms Craven from 1 February 2021 as notified by Mr Craven on 7 February 2022.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing, the oral submissions made by Ms Craven’s legal representative, [Mr A] at hearing, the documents provided by the Tribunal contained in Exhibit 1, and [Mr A]’s written submissions contained in Exhibit B before the Tribunal at the hearing.

2. Prior to Mr Craven’s change in care notification on 7 February 2022, the care percentages being assessed by the Agency for [Child 1] were 100% to Ms Craven and 0% to Mr Craven.

3. Mr Craven’s case concerns a change in care for [Child 1] over a period from early April 2021 to late September 2021, the period during which [Child 1] had been selected for specialised [training] as part of the child’s participation in [Sport] at both [his school] in [Suburb], South Australia, where he is enrolled as a Year [Number] student, and [Sport Club], for whom he and his siblings, [Child 2] and [Child 3], play [Sport] during the South Australian [Sport] season which runs from April to late September. Ms Craven is the manager for [Child 1]’s [Sport] Club team which trains twice a week.

4. [Child 1] was selected for participation in the 2021 [Sport governing body] [age group] [specialised] program conducted by [Sport governing body] from April to September 2021 (see [Sport governing body]’s confirmatory letter 12 April 2021, page 92, Exhibit 1). According to [Mr A]’s written submissions, (paragraph 21, page B4, Exhibit B), [School] offers a [Sport] program which recognises sporting talent in its students and allows them to continue to pursue this in an educational setting.

5. Pursuant to the terms of court orders made by [Judge B] in the Federal Circuit Court at Adelaide, South Australia [in] September 2021 (see Exhibit 1, pages 27 to 33), Ms Craven was granted sole parental responsibility for the children [Child 1], [Child 2] and [Child 3], and Mr Craven was restrained from having contact with the children, except on specific occasions set out in paragraph 11 of the court orders.

6. As a consequence of [Child 1]’s selection for the [specialised] program, he was required to attend additional training sessions on most of the evenings (Monday to Friday) during the [Sport] season, April to September in 2021. A detailed summary of the training sessions is set out at paragraph 28 of [Mr A]’s written submissions (see Exhibit B, page B5). To assist Ms Craven in meeting [Child 1]’s training commitments, the maternal grandparents, in particular, Ms Craven’s father, [Mr C], agreed to collect [Child 1] from school and take him to his [Sport] training sessions. This was because they lived close to [Child 1]’s [school].

7. According to [Mr A]’s written submissions, a combination of factors, including a period in mid-2021 when [Mr C] underwent treatment for cancer and the level of training sessions in which [Child 1] was required to participate, made it more convenient for [Child 1] to stay overnight with the maternal grandparents at least four to five nights during the school week. This was at the height of the training session in mid-June when [Child 1]’s training roster was at its peak.

8. It was Mr Craven’s case at hearing that the regular periods of four to five nights per week between Monday and Friday in the peak period of [Child 1]’s [Sport] training season between April and September/ 2021, when [Child 1] was staying overnight with Ms Craven’s grandparents, [Mr and C], constituted a change in the 100% pattern of care Ms Craven was having for [Child 1], and during which periods there was no evidence of Ms Craven providing any financial contribution for the provision of accommodation, food or general care for the child.

9. In response to questioning by the Tribunal at the hearing, Mr Craven acknowledged he had no direct evidence of the specific nights that [Child 1] stayed with his grandparents during the [Sport] training season, which he agreed extended from April to late September 2021, apart from information provided to him by [Child 1]’s siblings; he acknowledged he had no direct contact with [Child 1] during this period.

10. Mr Craven also agreed that [Child 1] was only involved in [Sport] training during the school terms in 2021, and that [Child 1] spent the weekends and the school holidays with Ms Craven.

11. His submissions at the hearing regarding Ms Craven’s level of care for [Child 1] during the relevant [Sport] training period, April to September 2021, were brief and generally lacking in substance. He asserted Ms Craven’s evidence in the form of bank statements listing her expenditure on groceries did not identify her provision of funds for [Child 1]’s meals while he was staying with the grandparents during the [Sport] training season.

12. Ms Craven’s response to Mr Craven’s assertions were summarised in the detailed written submissions provided by her legal representative, [Mr A] at pages B1 to B9 of Ms Craven’s documents, Exhibit B. Ms Craven gave evidence that she had read those submissions and adopted them as her affirmed evidence.

13. In response to questioning by the Tribunal at hearing, she gave evidence that the arrangement she concluded with her parents to allow [Child 1] to stay overnight with his grandparents during the [Sport] training season was precipitated by the intensity of the level of [Child 1]’s training consequent upon his selection for [Sport governing body]’s specialist [training] program from April to September 2021 and the proximity of the grandparents’ home to [Child 1]’s school and the [Sport] Club’s training grounds.

14. She identified the [Sport] training sessions on the evenings during the week as set out in paragraph 28 at page B5 of [Mr A]’s written submissions, Exhibit B. Ms Craven said this arrangement was intended to be of a temporary nature for the duration of the specialist [Sport] training program; she said [Child 1]’s personal belongings remained at her home and he only took clothing and personal items to his grandparents sufficient for his overnight stay.

15. Ms Craven gave affirmed evidence that [Child 1] returned to her house on the evenings when he was not rostered for [Sport] training, he stayed with her over the weekends; she provided transport for him and his siblings to their sporting fixtures over the weekend as the manager of his [Sport] team with the [Sport] Club.

16. Ms Craven acknowledged that she did not provide funds to the grandparents to cover [Child 1]’s meals on the evenings he stayed at the grandparents’ house, but she said she provided him with special after-school snacks which he took to his grandparents’ house and she also provided him with funds to pay for his school lunches, evidenced in the financial statements she provided at pages 47 and 48 of the Agency documents, Exhibit 1.

17. Ms Craven gave affirmed evidence that she pays for [Child 1]’s school fees at [School], his school uniforms, his sporting outfits and his medical expenses. She also gave evidence that she provides for all of [Child 1]’s daily personal needs as part of her expenditure on the family groceries and other daily needs.

18. [Mr C] provided a detailed sworn statement dated 5 March 2022 (see pages 94 to 96 of Exhibit 1) in which he describes the circumstances in which he and [Ms C] agreed to provide assistance to Ms Craven in the form of transport for [Child 1] to and from school to [Sport] training sessions, and overnight accommodation during the period April to September 2021. Notably, [Mr C] acknowledges that on the nights [Child 1] stayed at his house, Ms Craven financially provided him with all his needs and personal items.

19. In response to direct questioning by the Tribunal at the hearing, Ms Craven gave evidence that she is the school contact parent for [Child 1]; she gave evidence that [Child 1] has received counselling at his school for family trauma-related issues arising from the parents’ separation. She gave evidence of her involvement in meetings with [Child 1]’s school counsellors and his school mentor regarding [Child 1]’s mental health issues.

20. Mr Craven did not challenge Ms Craven’s evidence in this regard and acknowledged and agreed she had provided a significant level of emotional and financial support for [Child 1] during the April to September 2021 period he was involved in the [Sport] training program referred to above. Mr Craven also acknowledged he has no direct daily contact with [Child 1] during this period.

21. [Mr A] dealt extensively in paragraphs 33, 35 and 36 of his submissions at pages B7 and B8 of Exhibit B with the factors to be taken into account in considering to what extent a person has care of a child for the purposes of the Act and the Child Support (Registration and Collection) Act 1988 as set out in the decision of Hughes FM in the case of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec’s case). The Tribunal is satisfied the evidence regarding the level of financial, emotional support and the day-to-day involvement of Ms Craven in the care and supervision of [Child 1] both at her home and when he stayed overnight at his grandparents’ house in the period April to September 2021 is consistent with the factors identified in Polec’s case as constituting ongoing care by Ms Craven for [Child 1].

22. The Tribunal therefore finds that there was no change in the 100% level of care Ms Craven was providing for [Child 1] from 1 February 2021 as notified by Mr Craven on 7 February 2022 (albeit [Child 1] spent some evenings staying with his grandparents) and that his overnight stays with his grandparents were of a temporary nature for the purpose of facilitating his participation in the [specialised Sport] training program during the period April to September 2021 and not intended to be of a permanent nature.

23. As the Tribunal has reached the same conclusion as the objections officer in the decision under review, the Tribunal affirms that decision.

DECISION

The decision under review is affirmed.