Dunphy and Bamford (Child support)

[2018] AATA 4468

Dunphy and Bamford (Child support) [2018] AATA 4468 (14 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014511

APPLICANT:  Mr Dunphy

OTHER PARTIES:  Child Support Registrar

Miss Bamford

TRIBUNAL:Member J Longo

DECISION DATE:  14 September 2018

DECISION:

The Tribunal sets aside the decision under review, and, in substitution, decides that Mr Dunphy and Miss Bamford have a percentage of care of 0% for [Child 1] from 27 December 2017.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – neither parent has care of the child – existing determination of percentage of care revoked and new determination 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 Dunphy and Miss Bamford are the parents of [Child 1]. Mr Dunphy is the parent liable to pay child support.

2. From 12 March 2010, the Department of Human Services – Child Support (the Department) had determined that Miss Bamford had a percentage of care of 80% for [Child 1] and Mr Dunphy had a percentage of care of 20% for [Child 1].

3. On 8 January 2018, Mr Dunphy notified the Department that the care of [Child 1] had changed. Mr Dunphy stated that [Child 1] was no longer in either parent’s care as she had moved into her own unit and was undertaking an apprenticeship from 27 December 2017.

4. On 12 February 2018, the Department changed the care determination to reflect that [Child 1] was no longer in either parent’s care. Miss Bamford disagreed with the decision and lodged an objection on 28 February 2018. On 28 June 2018, an objections officer decided to allow Miss Bamford’s objection and determined to refuse to change the care determination.

5. On 5 July 2018, Mr Dunphy lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 14 September 2018. Mr Dunphy and Miss Bamford spoke to the tribunal and gave sworn evidence. In making its decision the tribunal took into consideration the documents (numbered 1 to 198) provided by the Department, which were also sent to Mr Dunphy and Miss Bamford. Mr Dunphy also provided additional information to the tribunal (numbered A1 to A8), which was provided to all parties to the review.

CONSIDERATION

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

Has there been a change in the care of [Child 1]?

1. Mr Dunphy stated at hearing that [Child 1] commenced an apprenticeship in December 2017 and that she moved into her own unit in [Town 1] from Miss Bamford’s home. Mr Dunphy stated that he paid half the bond for the unit on behalf of [Child 1] to help her with the move.

2. He stated that [Child 1] had told him that she was not going home every weekend as suggested by Miss Bamford and also that her mother was not staying each Wednesday night. Mr Dunphy stated that [Child 1] would catch a V/line train/bus from [Town 1] to [a town] and pay for this trip herself to visit her mother. He stated that [Child 1] is very proud and wanted to be independent. Mr Dunphy conceded that both parents provided emotional support to [Child 1] but that she was financially independent of both of them. Mr Dunphy provided evidence given to him by [Child 1], which showed her transferring funds from her account to Miss Bamford’s account for the payment of the rent. Mr Dunphy conceded that Miss Bamford paid four weeks rent and half of the bond for the property for the property. The child support which he had paid for December 2017 would have covered for these costs. Mr Dunphy also stated that [Child 1] was covered under his health insurance and so therefore her medical expenses would be covered. Mr Dunphy stated that only occasionally has [Child 1] asked for money from him because she is proud of her independence and she wants to pay her own way. He stated that [Child 1] has visited him occasionally since moving out and that when she has visited Miss Bamford she was not home and stayed with her brother.

3. Miss Bamford stated that [Child 1] only started paying her own rent from about mid-May 2018. Miss Bamford stated that [Child 1] started paying her the rent, as originally the direct debit was made from her account but in the past four weeks the payments have been directly debited from [Child 1’s] own account. Miss Bamford also referred to the travel costs for moving [Child 1] to her unit. She stated that she would stay with [Child 1] and also do some grocery shopping for her.

10.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to [Child 1] be revoked?

11.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children.

12.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 12 March 2010 and that Miss Bamford had a percentage of care for [Child 1] of 80% and that Mr Dunphy had a percentage of care of 20%. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Mr Dunphy contacted the Department on 8 January 2018 to advise that neither Miss Bamford nor Mr Dunphy had care of [Child 1] as she was living independently in a unit in [Town 1]. Therefore, paragraph 54F(1)(c) of the Act is satisfied.

13.The Act also requires that there would be a change in the cost percentage if another percentage of care were determined for Miss Bamford and Dunphy under section 50 of the Act. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of a child, the tribunal must determine the percentage of care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1) of the Act).

14.The tribunal is required to consider what the actual care Mr Dunphy and Miss Bamford have had or are likely to have of [Child 1]. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate in this matter. In this case, the Department determined that the care period should start from 27 December 2017, the date the care changed.

1. The tribunal has determined that the care for Mr Dunphy and Miss Bamford has changed since determined by child support from 12 March 2010. The tribunal is satisfied that neither Mr Dunphy nor Miss Bamford has care of [Child 1] from 27 December 2017 when she moved to her own unit in [Town 1] to commence her apprenticeship. Mr Dunphy has provided evidence of [Child 1] paying her own rent via fund transfers to Miss Bamford. The tribunal notes that the lease for the premises was in [Child 1’s] name and there is no dispute that [Child 1] had obtained employment via an apprenticeship. It would seem, on the balance of the evidence before the tribunal, that [Child 1] was providing for her own expenses since 27 December 2017. While it is clear that both Mr Dunphy and Miss Bamford had provided some support to [Child 1], both financially and emotionally, the tribunal is of the view that neither parent was providing care for [Child 1] from 27 December 2017.

2. It is clear that neither parent was physically providing for the needs of [Child 1] through the provision of accommodation, clothing, food, education, transport and extracurricular activities. While there had been some payment of [Child 1’s] initial costs, such as the bond and the first month’s rent for the property, the tribunal is not satisfied that her ongoing costs were consistently met by Miss Bamford during this period. While there may have been some ad hoc assistance provided, the tribunal is of the view that these costs were being met by [Child 1] through her employment.

3. Therefore, the tribunal is satisfied that from 27 December 2017 there has been a change in the care which constitutes a change to the pattern of care, as required under section 50 of the Act. Accordingly, the tribunal has decided to revoke the existing care determination for Mr Dunphy and Miss Bamford’s care percentages from 27 December 2017, paragraph 54F(1)(d) of the Act is satisfied. The tribunal therefore concludes that from 27 December 2017, Mr Dunphy and Miss Bamford had nil care of [Child 1].

DECISION

The Tribunal sets aside the decision under review, and, in substitution, decides that Mr Dunphy and Miss Bamford have a percentage of care of 0% for [Child 1] from 27 December 2017.