Dudfield and Ascroft (Child support)

Dudfield and Ascroft (Child support) [2021] AATA 5192 (6 December 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC022100 & 2021/SC022109
APPLICANT:  Mr Dudfield
OTHER PARTIES:  Child Support Registrar
Ms Ascroft

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 6 December 2021
DECISION:

(a) The Tribunal affirms the care percentage decision that Mr Dudfield provides 0 per cent care and Ms Ascroft provides 0 per cent care of [Child 1] but from 19 February 2018.

(b) The Tribunal sets aside the date of effect decision and, in substitution, decides that as neither party had any care of the child from the start date of the child support assessment there is no requirement to make a determination as to the date of effect of the objection decision.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – neither parents had care – decision under review affirmed – date of effect provisions – terminating event happened – 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 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

This review is about the percentage of care determinations for Mr Dudfield and Ms Ascroft in respect of their child [Child 1] (born October 2003).
On 19 February 2018 the Child Support Agency received an application from Mr Dudfield for a new child support assessment. On 9 March 2018 the Child Support Agency made the decision to implement a Centrelink care determination that Mr Dudfield provides 100 per cent care and Ms Ascroft provides 0 per cent care of [Child 1] from 20 December 2017 (the original decision). Ms Ascroft is the parent liable to pay child support.
On 23 June 2021 Ms Ascroft objected to this decision and on 10 August 2021 the Child Support Agency allowed the objection in part and made the decision that Mr Dudfield provides 0 per cent care and Ms Ascroft provides 0 per cent care of [Child 1] from 20 December 2017 but with effect from 23 June 2021 (the objection decision).
As special circumstances were met the objection decision was applied to the assessment from 15 May 2018 rather than the date Ms Ascroft submitted her objection (the date of effect decision).
On 17 August 2021 Mr Dudfield applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision and on 19 August 2021 Mr Dudfield applied to the Tribunal for a review of the date of effect decision.
The Tribunal conducted hearings into both applications on 2 November 2021. Mr Dudfield and Ms Ascroft gave evidence on affirmation by conference telephone. The Child Support Agency provided the Tribunal and the parties with papers relevant to both matters (444 pages). The Tribunal also received additional evidence from Mr Dudfield (A1–A25) and Ms Ascroft (B1–B618) prior to the hearing.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).
The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.
If a new application is made for a parent to be assessed in respect of the costs of a child and the parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (sections 49 and 50 of the Act).
The issues which arise in this case are:
· what is the percentage of care each parent has for [Child 1]; and
· from what date should the care determinations take effect?

CONSIDERATION

Mr Dudfield told the Tribunal that around the beginning of 2017 [Child 1] and Ms Ascroft had moved away from the [Region 1] , where they were living, but not long afterwards [Child 1] had wanted to be back with him. Mr Dudfield said at some point in February 2017 [Child 1] had returned to [Region 1] and started living with his sister Ms m[A].
Mr Dudfield said that [Child 1] remained with his sister from February 2017 until December 2017 when she then moved to live with him. Mr Dudfield explained that, following an accident in his garden, he was in hospital for most of the first half of 2017 and then recuperating at home for the remainder of the year. He said as [Child 1] was not getting along with her cousin he had agreed with his sister that [Child 1] could live with him once school ended in 2017. By then he felt he would also have recovered sufficiently from his accident that he could care for [Child 1].
Mr Dudfield told the Tribunal that [Child 1] moved to his home in [address], [Region 1], where he lived with his partner, on [date] December 2017. Mr Dudfield pointed out that Ms Ascroft was aware [Child 1] was living with him as she had picked up [Child 1] from his home on at least two occasions when she visited [Region 1] whilst working in Sydney.
Mr Dudfield said that [Child 1] attended [School 1] which was about 20km from his home. He said [Child 1] would catch the bus to school a couple of days a week and at other times he would drive her. Mr Dudfield said he was not listed as a guardian or a contact at the school because there was no immediate need to update the records. Mr Dudfield said he and [Ms A] were very close and she would ring him if there was anything happening at school that he needed to know about. Mr Dudfield pointed out that after [Child 1] moved in with him [Ms A] continued to play a role in her life and supported him in raising [Child 1].
The Tribunal notes in evidence from the Child Support Agency letters from the Principal of [School 1] addressed to Ms Ascroft dated 14 March 2017 and 1 March 2018. The letters confirm that [Ms A] is [Child 1]’s legal guardian and Ms Ascroft is listed as the other parent/guardian. A third letter from the Principal addressed to Mr Dudfield dated 28 July 2021 states that, according to school records, [Child 1] has been in the care of Mr Dudfield from 6 March 2018.
Ms Ascroft said there were contradictions in the statements provided by Mr Dudfield. She pointed out that Mr Dudfield had told the Child Support Agency he and [Child 1] were first living with his elderly parents and not his partner. Ms Ascroft said Mr Dudfield had also said he could not care for [Child 1] from February 2017 because he was in a wheelchair following a motor vehicle accident and not an accident in his garden. Ms Ascroft added she believed the letter from the school to Mr Dudfield was incorrect and the school records had been manipulated.
The Tribunal notes in evidence that during a discussion with a child support officer on 9 July 2021 Mr Dudfield was recorded as stating that [Child 1] came into his care in January 2017. He was then hospitalised due to an accident during which time [Child 1] went to live with his sister for two or three months. Mr Dudfield also stated he and [Child 1] were living with his elderly parents before the COVID-19 pandemic but have since moved. During a further conversation with a child support officer on 23 July 2021 Mr Dudfield states the reason he wasn’t able to care for [Child 1] in February 2017 was because he was recovering from a motor vehicle accident when he spent six months in hospital and 18 months in a wheelchair.
Mr Dudfield told the Tribunal he did have a motor vehicle accident some years before, however, the accident in early 2017 related to a fall in his garden after which he had a serious secondary infection. Mr Dudfield reiterated that [Child 1] was with [Ms A] until the end of 2017 because he was incapacitated following this second accident. Mr Dudfield said, in addition to the letter from the school, he had also provided statements from other third parties confirming his care of [Child 1] commenced in December 2017.
The Tribunal notes in evidence from Mr Dudfield a third party statement from Ms [B] dated 27 July 2021, a letter from Ms [C] dated 27 July 2021, a statutory declaration from Ms [A] dated 24 August 2021 and a statutory declaration from Ms] [D] dated 28 August 2021. Mr Dudfield told the Tribunal that Ms [B] was a neighbour to his sister and so was aware when [Child 1] left and moved to live with him. He said Ms [D] was a close family friend and lived in the same suburb as his sister. He said Ms [C] was a physiotherapist who was friends with [Ms A] and visited often.
The statement from Ms [B] confirms that [Child 1] was living with [Ms A] from February 2017 until December 2017 after which [Child 1] returned to the full-time care of her father. The statutory declaration from Ms [D] states that [Child 1] moved in with [Ms A] from February 2017 until around Christmas 2017 and then moved home to live with her father. The letter from Ms [C], a long-time friend of [Ms A], states [Child 1] moved in with [Ms A] in early 2017 and was living there for approximately nine months. The statutory declaration from [Ms A] states [Child 1] was in her care from February 2017 until December 2017 when school holidays commenced. [Ms A] states that Ms Ascroft paid her $50 per week from 21 September 2017 to 5 February 2018 and these payments ceased when [Child 1] was in the full-time care of Mr Dudfield. [Ms A] also states that no lump sum cash payments were received from Ms Ascroft and evidence provided by Ms Ascroft containing her signature were fraudulent.
Ms Ascroft told the Tribunal that she and [Child 1] had moved to [a named location] in late 2016, however, [Child 1] had difficulty adjusting to her new environment. She said after spending Christmas [together] , [Child 1] returned to [Region 1] to live with her auntie, [Ms A], from [February] 2017. She said this was facilitated by the then New South Wales Department of Family and Community Services under a private kinship care arrangement with the support of [Ms A]. Ms Ascroft said this arrangement was agreed to by the family as Mr Dudfield had been assessed by the Department as unsuitable to care for [Child 1].
Ms Ascroft said the arrangement with [Ms A] was subsequently formalised in a child support agreement signed by both parties in [Region 1]. Ms Ascroft said under this agreement she had been making regular payments to [Ms A] to cover various expenses for [Child 1]. Ms Ascroft reiterated this was a private arrangement and Mr Dudfield was also supposed to make payments to [Ms A]. Ms Ascroft said she had been communicating with [Ms A] regularly and was never informed [Child 1] had moved in with Mr Dudfield. Ms Ascroft said as far as she was concerned [Child 1] had continued to be in the care of [Ms A] until at least 28 May 2021. She said she believed [Child 1] was now living in Sydney.
The Tribunal notes in evidence from the Child Support Agency a copy of a limited child support agreement between Ms Ascroft and [Ms A] made on 24 February 2017. The agreement sets out that [Ms A] is to be the “responsible and sole carer” for [Child 1]. Clause 4 of the agreement states the New South Wales Department of Family and Community Services facilitated the change of care. Clause 5 states that [Ms A] has sole responsibility for [Child 1] and any future transition of care, including to the father, requires formal assessment. Clause 6 states that [Child 1] shall reside at the home of [Ms A] while clause 6 of the agreement envisages that [Child 1] be permitted to stay overnight with Mr Dudfield but in agreement with Ms Ascroft. Clause 14 states the needs of the child will be met by Ms Ascroft paying an amount of $50 per week and Mr Dudfield paying $50 per week by separate arrangement. The agreement notes that [Ms A] has received a lump sum of $2,500 as an initial payment. The agreement is signed by Ms Ascroft and [Ms A]. The signatures were witnessed and certified by a Justice of the [Peace], on 24 February 2017.
Ms Ascroft told the Tribunal she was aware that [Child 1] would stay with Mr Dudfield and her grandparents on occasions, including school holidays, but [Child 1] remained in the care of [Ms A]. Ms Ascroft pointed to a text message she had received from [Ms A] about the holiday care Mr Dudfield had during Christmas 2017 after which [Child 1] had returned to the care of [Ms A]. Ms Ascroft argued that as neither parent had care of [Child 1], a child support case should not have commenced and she was seeking a terminating event.
The Tribunal notes in evidence from Ms Ascroft a screen shot of a text message dated 3 January 2018 from [Ms A]. The Tribunal accepts this to be from [Ms A]. It states:
Yeah there was a bit of name calling as the year come to a end over the bedroom thing glad the holidays came when they did [Child 1] is staying with Mr Dudfield for tbe holidays once school starts i want her back here closer to the school i have told them we all talk after the hols and see how things are progressing Mr Dudfield s good and loves her to death she is safe i message her every second day or so assuring her i am here if zhe needs and so is her bed other than the bedroom issue they get on fine just came to the one year in each others face thing i think they will be fine with a six week break
Ms Ascroft said she had continued to make regular payments to [Ms A] by electronic funds transfer and cash payments. She said the payments were made in advance. Ms Ascroft said [Ms A] had requested she cease making the transfers direct to her and instead pay her in cash as well as transferring funds into an account she controlled for [Child 1].
The Tribunal notes in evidence from the Child Support Agency copies of Westpac transaction statements showing a payment to [Ms A] on 1 August 2017 of $200 with the description “[Child 1] Hair”, a payment to [Ms A] on 20 September 2017 of $200 and weekly payments of $50 from 25 September 2017 to 5 February 2018. The Tribunal further notes receipts for cash payments made by Ms Ascroft to [Ms A] of $1,300 on 14 April 2018, $2,500 on 15 October 2018, $2,300 on 21 November 2019 and $1,500 on 22 December 2020. The receipts are signed by [Ms A] and these signatures all match the signature on the limited child support agreement signed by [Ms A] and certified by the Justice of the Peace on 24 February 2017.
Ms Ascroft said she had been communicating with [Ms A] by email about the payments she was making under their agreement. Ms Ascroft referred the Tribunal to emails and text messages she provided in evidence to the Child Support Agency.
The Tribunal notes in evidence a series of email exchanges between Ms Ascroft and [Ms A] regarding care of [Child 1] and payments made under the limited child support agreement. Of relevance:
·     On 27 February 2017 Ms Ascroft writes, “Hi [Ms A], Just following up on my last email so that we are both clear on the payments” and “If you can email me back so I know that you’ve got it”. On 28 February 2017 [Ms A] responds, “got it”.
·     On 31 August 2017 Ms Ascroft writes, “Hi [Ms A], Thanks for your time on the phone, I’m glad we’ve got everything sorted out” and “Just want to make clear that the original lump sum covers us until 24 Feb 2018…”. On 31 August 2017 [Ms A] responds, “that sounds good Ms Ascroft”.
·     On 29 September 2019 Ms Ascroft writes, “Hi [Ms A], Just trying to work out the next payment to you, from the last count its been 350 days paid for excluding the 37 days that she’s spent with me since the last one…” and “Let me now if you want me to do a bank deposit for the next one”. On 30 September 2019 [Ms A] responds, “its fine Ms Ascroft, dont stress I will be in [a region] next month so give it to me then…”.
·     On 5 November 2020 Ms Ascroft writes, “Hiya [Ms A], I’m due to send you another payment but I thought I would do the maths to work out where we’re at: Last payment covered 350 days excluding the 21 days that she has spent with me since the last one”. On 6 November 2020 [Ms A] responds, “yep, that sounds about right”.
·     On 22 December 2020 Ms Ascroft writes, “Hi [Ms A] Just confirming the last payment”. On 22 December 2020 [Ms A] responds, “got it”.
Ms Ascroft told the Tribunal the last payment she made to [Ms A] was on 22 December 2020. [Ms A] said that covered a period up until around mid-2021. Ms Ascroft said if [Child 1] had been living full-time with Mr Dudfield she believed [Ms A] would have informed her in accordance with the agreement and she had never received such advice. She said the first time she had been told [Child 1] was living with Mr Dudfield was on 23 June 2021 when [Ms A] also said she would lie about the matter if she had to. Ms Ascroft said [Ms A] had subsequently sent her a text message to that effect.
The Tribunal notes in evidence from Ms Ascroft a screen shot of a text message dated 23 June from [Ms A]. The Tribunal accepts this to be from [Ms A]. It states:
Not my fight Ms Ascroft thanks for nothing don contact me again everyone will lie if they have to ill tell them I’ve never received any child support for [Child 1]…
Mr Dudfield told the Tribunal the limited child support agreement was fake as were the receipts provided by Ms Ascroft. He said it was not his sister’s signature on these documents and the matter was being investigated by the police. Mr Dudfield said Ms Ascroft was a [occupation] and could easily have forged the emails and text messages from [Ms A]. Mr Dudfield added that he had never been found by any organisation to be an unfit parent.
Mr Dudfield has explained to the Tribunal that [Child 1] was living with his sister, [Ms A], from February 2017 until [Child 1] moved into his care on 20 December 2017. He has provided several third-party statements which support this contention. Mr Dudfield has also told the Child Support Agency, however, that [Child 1] came into his care in January 2017 and then went to live with his sister for two or three months before returning to his care. The statement from the Principal of [School 1] addressed to Mr Dudfield says that, according to school records, [Child 1] has been in the care of Mr Dudfield from 6 March 2018.
Ms Ascroft has told the Tribunal that [Child 1] was in the care of [Ms A] from 10 February 2017 and has remained in her care until at least 28 May 2021. Ms Ascroft argues the care of [Child 1] was the subject of a limited child support agreement with [Ms A] and [Ms A] had not told her that [Child 1] was living with Mr Dudfield until 23 June 2021.
The limited child support agreement signed by Ms Ascroft and Ms Dudfield is dated 24 February 2017 and requires Ms Ascroft to provide funds of $50 per week to Ms Dudfield to assist with meeting various expenses for [Child 1]. Mr Dudfield agrees that Ms Ascroft was paying funds to [Ms A], but this ended in March 2018 because [Child 1] was living with him by this stage. Mr Dudfield also argues that the limited child support agreement was never signed by [Ms A] and it is not her signature on the document. The statutory declaration from [Ms A] also states that her signature on all evidence provided by Ms Ascroft is fraudulent and she has never seen the limited child support agreement.
The signatures on the limited child support agreement have been certified by a Justice of the Peace and the Tribunal is satisfied this is a legitimate document. The evidence in the form of emails and text messages between Ms Ascroft and [Ms A] strongly indicate that Ms Ascroft continued to receive funds for the care of [Child 1], as per the limited child support agreement, well beyond March 2018. In this regard the Tribunal is also persuaded by the text message from [Ms A] to Ms Ascroft dated 23 June 2021 in which [Ms A] states she will deny receiving child support for [Child 1] and everyone will lie if necessary. Mr Dudfield has also said these emails and text messages are fraudulent, however, in the absence of further evidence the Tribunal does not accept this argument.

Care percentage decision

Mr Dudfield applied to the Child Support Agency for a new child support assessment on 19 February 2018. Although it is apparent that both Mr Dudfield and Ms Ascroft were having some care of [Child 1], mostly holiday care, the weight of evidence indicates that Mr Dudfield did not have 100 per cent care of [Child 1] from the date of his application. The Tribunal is satisfied that [Child 1] was in the above primary care of [Ms A] when Mr Dudfield made his application.
The Tribunal notes the Child Support Agency recorded the level of care to Mr Dudfield and Ms Ascroft from 20 December 2017. As there is no provision in the Act for a care percentage decision to be made before the administrative assessment is in place, the Tribunal is of the view the care percentage decision should be made from the date of application.
The Tribunal finds that Mr Dudfield provides 0 per cent care and Ms Ascroft provides 0 per cent care of [Child 1] from 19 February 2018.

Date of effect of new care percentage decision

An objection to a care percentage decision does not have to be lodged within 28 days, however, if it is lodged outside the 28-day period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the R&C Act). If special circumstances exist that prevented the person from lodging the objection within the relevant period, a determination under subsection 87AA(2) of the R&C Act may be made that subsection 87AA(1) applies as if the reference to 28 days was a reference to such longer period as determined to be appropriate.
Ms Ascroft lodged her objection to the care percentage decision on 23 June 2021 and the objection was allowed in part. In this case the objections officer then found that special circumstances existed and made a determination under subsection 87AA(2) of the R&C Act. As a consequence, the date of effect of the objection decision was 15 May 2021 and not the date Ms Ascroft lodged her objection to the original decision.
The Tribunal is of the view this should not be a decision pursuant to subsection 87AA(2).
Section 12 of the Act deals with a series of circumstances giving rise to the happening of a terminating event. Relevantly, in this case, subsection 12(2AA) of the Act provides a terminating event happens in relation to a child if:
(a) both of the parents of the child are not eligible carers of the child; and
(b) there are no non-parent carers entitled to be paid child support in relation to the child.
Subsection 7B(1) of the Act states that an “eligible carer” is a person who “has at least shared care of the child.” Subsection 5(3) states that a person “has shared care” of a child “if the person’s percentage of care for the child during a care period is at least 35% but not more than 65%”.
The Tribunal notes that in this matter the objections officer found, effectively, that [Child 1] was not in the care of either Mr Dudfield or Ms Ascroft on 19 February 2018. The Tribunal has found similarly. This constitutes a terminating event from the start date of the child support assessment.
Notwithstanding this, as noted above, the objections officer has purported to make a determination under subsection 87AA(2) that, “it is appropriate for the care percentage to be applied from an earlier date, I have decided to apply the care percentage from 15 May 2018”.
Pursuant to section 74 of the Act, the Child Support Agency is required to give effect to the happening of a terminating event by immediately taking appropriate action to take account of the happening of the terminating event, including amending the administrative assessment or otherwise. Thus, the terminating event should be given effect from 19 February 2018. A determination under subsection 87AA(2) is, therefore, unnecessary.
The Tribunal considers the appropriate decision in this case to be a determination that a terminating event occurred with effect from 19 February 2018.

DECISION

(a) The Tribunal affirms the care percentage decision that Mr Dudfield provides 0 per cent care and Ms Ascroft provides 0 per cent care of [Child 1] but from 19 February 2018.

[2021] AATA 5192

6 December 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction