Ellarby and Clarance (Child support)

[2024] AATA 2026

Ellarby and Clarance (Child support) [2024] AATA 2026 (17 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027403

APPLICANT:  Mr Ellarby

OTHER PARTIES:  Child Support Registrar

Ms Clarance

TRIBUNAL:Member J Thomson

DECISION DATE:  17 May 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS 

CHILD SUPPORT – whether there has been a change in the pattern of care –pre-existing care percentages revoked – 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. Mr Ellarby and Ms Clarance are the parents of [Child 1], born 2008.

2. Mr Ellarby seeks review of an objection decision made by Services Australia (Child Support) on 16 December 2023. This decision allowed Ms Clarance’s objection to an earlier Child Support decision dated 1 February 2023, refusing to accept her notification on 6 December 2022 of a change in care for [Child 1] of 100% to Ms Clarance and 0% to Mr Ellarby from 16 November 2022, and deciding to reflect the care for [Child 1] as 100% to Ms Clarance and 0% to Mr Ellarby from 16 November 2022.

3. The Tribunal heard the matter on 9 May 2024. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 426), admitted into evidence and marked Exhibit 1, and documentation provided by Mr Ellarby (folio A1), admitted into evidence and marked Exhibit A1. Both parents had copies of these documents with them at the hearing.

4. The Tribunal issued a Request pursuant to section 33 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) to provide an unredacted copy of a third-party witness statement at page 91 of the Child Support documents, Exhibit 1. Child Support has complied with the Tribunal’s request and the unredacted copy of the third-party witness statement of Mr [A] has been added to the Child Support documents, Exhibit 1. A copy of this document will be provided to Mr Ellarby with a copy of the Tribunal’s decision.

5. The initial part of the hearing was taken up with issues relating to Ms Clarance’s reluctance to participate in the hearing. She subsequently agreed to participate in the hearing.

6. There was also some disruption to Mr Ellarby’s conference telephone reception during the hearing due to his choice to proceed with the hearing while travelling to meet an overseas flight and continuing to participate in the hearing while in transit. Although he had informed the Tribunal Registry prior to the hearing of his possible need for a rescheduled hearing, due to his overseas travel commitment, he later informed the Registry he had made suitable arrangements to avoid that necessity and was available to proceed with the scheduled hearing on 9 May 2024. The Tribunal is satisfied any disruption to his reception during the hearing was registered and the hearing paused while he was reconnected to the hearing.

7. Section 2A of the AAT Act cites as the Tribunal’s objectives in carrying out its functions that it provides a mechanism of review that is fair, just, economical, informal and quick, and is proportionate to the importance and complexity of the matter before it. The Tribunal is satisfied it has complied with its objectives in the conduct of the hearing on 9 May 2024.

ISSUES

1. The issues which arise in this case are:

   ·      whether there has been a change in the pattern of care for the child, [Child 1], which requires the existing percentages of care to be revoked and a new care percentage determination made; and if so,

   ·      when should the new percentage of care determinations apply?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documents contained in Exhibits 1 and A1 before the Tribunal at the hearing.

2. 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’.

3. To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care being had or likely to be had by the parents by reference to an appropriate care period. Child Support generally considers a period of approximately 12 months to be appropriate. However, a shorter period may be applied, depending on the circumstances of each case. For the Reasons set out below, the Tribunal will consider the parents’ care patterns during the period 16 November 2022 to 31 March 2023.

4. Ms Clarance notified Child Support of a change in care for [Child 1] on 6 December 2022 which she said occurred on 16 November 2022. She gave evidence at the hearing that the change in care occurred when she collected the child, [Child 1] and her personal possessions from Mr Ellarby’s residence following a disagreement between [Child 1] and Mr Ellarby and took her to live with Ms Clarance.

5. The care percentages being assessed by Child Support prior to Ms Clarance’s change in care notification were 27% to Ms Clarance and 73% to Mr Ellarby and had been based on Federal Court of Australia Final Orders (the FCC Orders) signed by both parents at Brisbane on 3 and 6 October 2022, a copy of which was before the Tribunal at pages 31 to 39 of Exhibit 1.  

6. Both parents acknowledged and agreed in their evidence at the hearing that [Child 1] had been living with Ms Clarance for a period of two weeks from on or about 16 November 2022 and that she had spent approximately three to four nights at Mr Ellarby’s house from 3 to 6 January 2023.

7. Mr Ellarby gave evidence that he had gone overseas on business from on or about 20 May 2023 until the end of October 2023 and during that period had consented to a change in care for [Child 1], recorded by Child Support from 1 April 2023, reflecting Ms Clarance’s care at 100% and Mr Ellarby’s care at 0% until 5 July 2023 (see pages 197 to 200 of Exhibit 1) when both parents acknowledged and agreed the child had been placed into protective care under the supervision of the Queensland Department of Children, Youth Justice and Multicultural Affairs (the Department) (see pages 246 to 254 of Exhibit 1).

8. Mr Ellarby’s evidence at the hearing focussed on the level of evidence provided by Ms Clarance in support of her contention that she had 100% care of [Child 1] from 16 November 2022 and the apparent reliance of the objections officer in determining the level of care on the corroborative statement of a third party witness, Mr [B], the Department’s child safety officer responsible for the management of [Child 1]’s protective care placement referred to earlier herein.  

9. For his part, Mr Ellarby acknowledged and agreed that he had not maintained any contemporaneous written record of the care he was having of [Child 1] from 16 November 2022 to 31 March 2023 other than to assert that the child was in his care from 3 January 2023 as reflected in the evidence he gave to the Child Support officer in the initial change in care assessment process (see the Child Support file record at page 70). He was unclear in his evidence as to whether he had the weekend care foreshadowed in his earlier discussions with Child Support on 6 December 2022, and generally acknowledged and agreed that any care he did have was of a sporadic nature during this period.

10. He acknowledged that [Child 1] was going through a difficult period in her life as a 16-year-old adolescent, having issues with each parent and frequently moving between their houses. However, he was unable to identify any specific nights or pattern of care of the child being had by him, and was not able to provide any corroborative statements from third party witnesses as to his level of care of [Child 1] from 16 November 2022 to 31 March 2023 when the care devolved to Ms Clarance 100% from 31 March 2023 until the child was placed in protective care from 6 July 2023 and neither parent was having any care.

11. Regarding the statement of Mr [B], Mr Ellarby challenged the basis upon which Mr [B] asserted Ms Clarance had care of [Child 1] from 1 November 2022, contending that Mr [B] had not become involved with [Child 1]’s Departmental case until at least 7 July 2023, and that his evidence as to the commencement date of Ms Clarance’s 100% care level on 1 November 2022 was based on information provided to him by Ms Clarance and not based on his own personal knowledge of the child’s care arrangements prior to 7 July 2023 when he was assigned to the management of the child’s protective care case.

12. In response to questioning by the Tribunal, Ms Clarance acknowledged and agreed that Mr [B] had only become involved as [Child 1]’s child safety officer from 7 July 2023 and had not visited the child at Ms Clarance’s residence to observe her living arrangements. She acknowledged and agreed that his information as to the child’s care arrangement prior to 7 July 2023 had been provided to him by Ms Clarance as part of her broader background briefing on [Child 1]’s psychological circumstances.

13. Ms Clarance gave evidence that from 16 November 2022, she has provided the substantive care for [Child 1]. She gave evidence that [Child 1] has been living with her since that date, that she has been taking the child to her medical and psychologist appointments for treatment and management of the personal behavioural issues the child has been experiencing prior to and since 16 November 2022, that she has made unsuccessful attempts to enrol [Child 1] in a nearby specialist school from 16 November 2022 prior to the child being placed into protective care under the management of Mr [B] from 7 July 2023, and that she has been providing the child with emotional and financial support throughout that period.

14. Ms Clarance acknowledged and agreed that [Child 1] visited Mr Ellarby during the designated care period under consideration and occasionally stayed overnight at his residence on not more than half a dozen occasions, but not on any consistent patterned basis.

15. In addition to Mr [B]’s statement, she also provided a statement from her former neighbour and close friend, Mr [A] dated 30 January 2023 (see page 91 of Exhibit 1), attesting to him personally visiting Ms Clarance’s residence and observing the child living with Ms Clarance in the care period under consideration.

16. The Tribunal finds the evidence, on balance, is that [Child 1] has been living predominantly with Ms Clarance since 16 November 2022, that Ms Clarance has provided emotional and financial support, medical and mental health care for the child and generally attended to the day-to-day needs of the child consistent with a care level of 100%.

17. On his own admission at the hearing, Mr Ellarby’s evidence suggests he has had only sporadic contact with the child in the period 16 November 2022 to 31 March 2023 and certainly no identifiable pattern of care.

18. The Tribunal finds that section 54G of the Act applies in this case because Mr Ellarby was the responsible parent who was to have at least regular care of the child in the care period under consideration (paragraph 54G(1)(a)); there was no evidence that Ms Clarance had withheld care of the child; both parents acknowledged and agreed she was moving freely between the respective parents up until 16 November 2022 (paragraph 54G(1)(b)), and the Tribunal has found that Mr Ellarby had no care from that date. The Tribunal is also satisfied Ms Clarance notified the Child Support Registrar of the change in care within a reasonable time (paragraph 54G(1)(d)).

19. The Tribunal will therefore revoke the pre-existing care percentages of 27% to Mr Ellarby and 73% to Ms Clarance pursuant to section 54G of the Act.

20. At the hearing, both parents acknowledged and agreed that they had not been following the FCC Orders prior to Ms Clarance’s change in care notification on 6 December 2022 because [Child 1] was continually moving between the parents’ houses. There was no evidence before the Tribunal that Mr Ellarby, as the parent with reduced care, had taken any steps or action to have the court ordered care arrangements complied with as contemplated in section 51 of the Act. This means an interim period does not apply and only actual care will be reflected. Pursuant to section 54B, the new care percentages of 100% to Ms Clarance and 0% to Mr Ellarby apply from 16 November 2022.

21. 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.