Delabarre and Wadan (Child support)

Delabarre and Wadan (Child support) [2022] AATA 3510 (9 June 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC023278
APPLICANT:  Ms Delabarre
OTHER PARTIES:  Child Support Registrar
Mr Wadan

TRIBUNAL:Senior Member S De Bono
DECISION DATE: 9 June 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care percentages of 86% care to Ms Delabarre and 14% care to Mr Wadan from 1 February 2018 continues to apply.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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

Ms Delabarre and Mr Wadan are the separated parents of [Child 1]. [Child 1] was born [in] December 2003. Mr Wadan is the parent liable to pay child support. [Child 1] turned 18 years old [in] December 2021.
On 3 November 2021 an officer from Services Australia – Child Support (Child Support) made a new care determination for the care of [Child 1] and found that Ms Delabarre had 0% care and Mr Wadan had 0% care of [Child 1] from 1 February 2021. The care for [Child 1] prior to the new care determination was 86% care to Ms Delabarre and 14% care to Mr Wadan which applied from 1 February 2018.
On 16 November 2021 Ms Delabarre lodged an objection to this decision. On 4 February 2022 an objections officer disallowed Ms Delabarre’s objection.
On 11 February 2022 Ms Delabarre applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of this decision. On 26 May 2022 Ms Delabarre and Mr Wadan gave evidence under affirmation via conference telephone. The Tribunal had before it a bundle of documents (132 pages – referred to as the hearing papers) which had been sent to both parties prior to the hearing. Ms Delabarre provided further information prior to the hearing (A1–A4). Relevant aspects of the material and evidence will be referred to in the Tribunal’s consideration of the issues to be decided.

ISSUES

The issues which arise in this case are:
·     Whether the existing care determination should be revoked?
·     If so, from what date should the existing care determination be revoked?
·     Should a new care determination of the percentages of care for [Child 1] be made?
·     If so, from what date should the new care determination take effect?

LAW AND CONSIDERATION

The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the Tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1]
[1] [1979] AATA 179.
The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.
The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Child Support’s policy in this regard, as set out in chapter 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the care of a child began or changed, and the same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

Issue 1 – Should the existing care determination of 86% care to Ms Delabarre and 14% care to Mr Wadan be revoked?

Sections 49 and 50 of the Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the Tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the child or children, before a revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.
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 of the Act reflect the idea that Child Support makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.
The Tribunal’s task on review is to stand in the shoes of the original decision maker. In this respect, on review, there is a clear temporal element in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support. It is not appropriate in undertaking that task to assess care based on what happened from initial notification to Child Support up to the time of the Tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to Child Support. In the Tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to Child Support – so that a new primary care percentage decision can be considered and made if appropriate.
The term “pattern of care” is not defined in the legislation. The Tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.
On 18 October 2021 Mr Wadan notified Child Support that there had been a change in the care of [Child 1]. He advised Child Support that [Child 1] had been living with a friend from 1 February 2021.
There are no written care agreements or parenting plans in respect of the care the parents provide to [Child 1]. The change in care notification to Child Support by Mr Wadan was made some 8 months after the care change was purported to have occurred.
Mr Wadan said [Child 1] had moved to live with his best friend at his best friend’s parents’ house, he was told this by [Child 1]. [Child 1]’s best friend is [Friend A], it was his view that [Child 1] was living permanently with [Friend A]’s parents from 1 February 2021. The Tribunal asked Mr Wadan how he became aware that [Child 1] was no longer living with Ms Delabarre, he said [Child 1] told him, and members of his family had seen him outside [Friend A]’s parents’ house. He also said he and his sister had picked [Child 1] up from [Friend A]’s house for family dinners and [Child 1] had been to his house for family dinners.
Text messages from [Child 1] contained in the hearing papers indicate Mr Wadan only became aware that [Child 1] was staying at [Friend A]’s house from 18 October 2021.[2] Ms Delabarre said Mr Wadan had not seen [Child 1] during most of 2021 due to the COVID-19 lockdowns in Victoria. She said Mr Wadan has young children and did not want their two older children visiting him during this period due to the risk of infection. It was her view that Mr Wadan would not have been aware of [Child 1]’s living situation nor would he have been aware of what support she was providing to [Child 1] during this period.
[2] Page 93 of the hearing papers.
Ms Delabarre said in May 2021 she had to move from her rental accommodation in [Town 1] as the landlord wanted to sell the property. This evidence is confirmed by a letter from [Ms B] from [a real estate agent].[3] Ms Delabarre said she moved in with a friend ([Ms C]) who she had shared with before she partnered with Mr Wadan. She moved into a house in [Suburb 1]. She said [Child 1] has a room at this house where he could stay and often [Friend A] and [Child 1] stayed overnight at this house.
[3] Page 84 of the hearing papers.
Ms Delabarre said [Child 1] was working part time for [Friend A]’s father as a labourer and that is why he would stay overnight at [Friend A]’s because he would need to get up to start work early. She said this work increased in late September 2021 and [Child 1] began staying at [Friend A]’s parents’ house more often and increased his work hours at that time.
Ms Delabarre said at the time of the purported care change [Child 1] was 16 years old, and as an older child he was able to make some of his own decisions, such as, where he lives and with whom he spends time.
The Act does not define what care of a child is. But the Guide provides Child Support policy and guidance on what to consider in determining whether care exists. The Guide at 2.2.1 provides that in most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever is relevant to a 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 arrangements for others to meet the needs of the child (delegated care).
oTo 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.
Evidence contained in the hearing papers includes an email from [Ms D] who is Mr Wadan’s sister. [Ms D] states she has picked up [Child 1] from [Friend A]’s parents’ house in [Town 2] and to her knowledge [Child 1] has lived there for the past 11 months. While this is evidence that [Child 1] stayed with [Friend A] it is not probative that [Child 1] was living permanently with [Friend A]’s family nor is it evidence that Ms Delabarre was not providing ongoing care to [Child 1] in the manner explained in the Guide.
Given Mr Wadan did not become aware that [Child 1] was staying with [Friend A]’s parents until October 2021 the Tribunal does not accept [Ms D’s] email that they were having regular contact with, or seeing [Child 1] during 2021. The Tribunal does not accept this letter as evidence that [Child 1] was not living with his mother from 1 February 2021.
In relation to Ms Delabarre’s evidence the Tribunal accepts that [Child 1] was still living with her until she had to vacate the rental property in [Town 1] on 2 May 2021. The Tribunal notes that the house Ms Delabarre moved into in [Suburb 1] is a four-bedroom house. [Ms C] explains in her supporting letter there are four people living in this house, herself, Ms Delabarre, [Ms C]’s daughter and Ms Delabarre’s daughter.[4] The Tribunal does not accept as plausible that [Child 1] had a room that was set up for him at this house, given it is a four-bedroom house and there were four people living in the house.
[4] Page A3.
The letter from [Ms E] ([Friend A]’s mother) states that [Child 1] did not move into their house on a more permanent basis until late September 2021. She writes that [Child 1] and [Friend A] would stay at their house on weekends. [Child 1] commenced staying more regularly with them after [Child 1] increased his work days with [Friend A]’s father. [Ms E] states:
This arrangement continued until the present time. [Child 1] has never paid rent or board to us and apart from the occasional meal (they are addicted to take-away) we have also never financially supported [Child 1].[5]
[5] Page A4.
It is likely that [Child 1] spent increased time at [Friend A]’s parents’ house after Ms Delabarre moved from [Town 1] to [Suburb 1]. It does not necessarily follow that Ms Delabarre was not providing ongoing care and support to [Child 1] both financially and emotionally. Ms Delabarre said she was paying for [Child 1]’s mobile and providing money to [Ms E]. [Ms E] does not mention she received any financial support from Ms Delabarre in her letter and, Ms Delabarre was not able to provide material evidence that she was financially supporting [Child 1]. However, there is evidence that [Child 1]’s phone is likely on the same account as his mother’s phone.[6] Ms Delabarre said she was paying [Child 1]’s phone bill.
[6] Page 83 of the hearing papers.
Text messages from [Child 1] cannot be used in forming an opinion about whether his care had changed as he is a child in relation to the care decision. As there is conflicting evidence given by both parents and, conflicting evidence in third-party statements, the Tribunal finds on balance that it is not persuaded that a change in the care percentages of [Child 1] occurred on 1 February 2021. Therefore, the existing care percentages of 86% care to Ms Delabarre and 14% care to Mr Wadan continue to apply.

DECISION

[2022] AATA 3510

9 June 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Remedies

Statutory Construction