Ellington and Ellington (Child support)

[2023] AATA 3406

Ellington and Ellington (Child support) [2023] AATA 3406 (14 September 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026032

APPLICANT:  Ms Ellington

OTHER PARTIES:  Child Support Registrar

Mr Ellington

TRIBUNAL:Member H Moreland

DECISION DATE:  14 September 2023

DECISION:

The decision under review is set aside and the Tribunal, in substitution, decides that there has been no change in the care of [Child 1] and [Child 2].

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

1. Ms Ellington and Mr Ellington are the parents of [Child 1] and [Child 2]. Mr Ellington is the parent liable to pay child support.

2. This child support case commenced on 20 March 2017.[1] From 24 January 2020, Services Australia – Child Support (Child Support) recorded Ms Ellington as having 89% and Mr Ellington having 11% of the care for [Child 1] and [Child 2].[2] According to the Child Support papers, Mr Ellington contacted it on 28 November 2022, to advise it that he would be providing 100% care of [Child 1] and [Child 2] for the period from 13 November 2022 to 24 January 2023.[3] On 2 February 2023, Child Support decided to refuse to reflect the care as Mr Ellington having 100% and Ms Ellington having 0% of the care of [Child 1] and [Child 2] for that period.[4] On 3 February 2023, Mr Ellington objected to the decision.[5] On 3 April 2023, an objections officer decided that from 13 November 2022 Ms Ellington had a care percentage of 86% and Mr Ellington had a care percentage of 14% for both [Child 1] and [Child 2].[6]

   [1] Child Support papers, p 264.

   [2] Child Support papers, pp 278 and 282.

   [3] Child Support papers, pp 36, 68–69, 76–77, 96–97 and 204.

   [4] Child Support papers, p 36.

   [5] Child Support papers, p 36.

   [6] Child Support papers, pp 36, 277 and 281.

3. On 1 May 2023, Ms Ellington lodged an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. The hearing took place on 14 September 2023. Ms Ellington and Mr Ellington both participated in the hearing by videoconference with Ms Ellington giving sworn evidence and Mr Ellington giving evidence on affirmation. In making its decision, the Tribunal took into consideration the documents provided by Child Support (numbered 1–322), which were also sent to Ms Ellington and Mr Ellington. Following the hearing, Ms Ellington provided the Tribunal with a copy of court orders regarding care arrangements for [Child 1] and [Child 2] (numbered A1–A10).

CONSIDERATION

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

2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, while it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[7] In the recent case of G v MIBP,[8] the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

   [7] (1979) 2 ALD 634.

   [8] [2018] FCA 1229.

Should the pre-existing care percentage determinations be revoked?

1. The Tribunal notes that it is not in dispute that court orders regarding the care of [Child 1] and [Child 2] were not being followed in the lead-up to 13 November 2022. According to these orders, the children were to live with Ms Ellington and, on broad terms, spend time with Mr Ellington as agreed between the parties and failing agreement for one weekend in each calendar month in Queensland until 7pm on a Sunday and for 7 nights in the Queensland gazetted school holiday period following Term 1, and for one half of the Queensland gazetted school holiday period following Terms 2, 3 and 4.[9]

   [9] A documents, pp A3–A4.

2. Mr Ellington told the Tribunal that he was unable to afford to have care for [Child 1] and [Child 2] as set out in the orders because he could not afford to travel to visit them. The Tribunal notes that Mr Ellington resides in New South Wales and Ms Ellington lived in Queensland before moving to Victoria.

3. As noted above, according to Child Support, from 24 January 2020, Ms Ellington was recorded as having 89% and Mr Ellington as having 11% of the care for [Child 1] and [Child 2].[10]

   [10] Child Support papers, pp 278 and 282.

4. It is also not in dispute that on 13 November 2022, [Child 1] and [Child 2] travelled from Brisbane to Sydney and were collected, at the airport, by Ms Ellington’s father.

10.The Tribunal asked Ms Ellington and Mr Ellington if they disputed the record of care outlined in the Child Support papers as follows:

3) Self statement with list of care dates for period 13/11/22 to 09/01/23
13/11/2022 - 17/11/2022 - with [Ms Ellington]'s parents
17/11/2022 - 28/11/22 with [Mr Ellington] (12n)
29/11/2022 - 02/12/2022 - with [Ms Ellington]'s parents
02/12/2022 - 04/12/2022 - with [Mr Ellington]'s parents (2n)
04/12/2022 - 09/12/2022 - with [Mr Ellington] (6n)
10/12/2022 - 11/12/2022 - with [Ms Ellington]'s parent
11/12/2022 - 22/12/2022 - with [Mr Ellington] (11n)
22/12/2022 - 09/01/2023 - with [Ms Ellington] and [Ms Ellington]'s parents
26/12/2022 - 02/01/2023 - with [Ms Ellington]'s parents at [Town 1]. Spent time with

[Mr Ellington] during the day for few hours.[11]

[11] Child Support papers, pp 205–206.

11.Ms Ellington and Mr Ellington both agreed that this was an accurate record of the care of [Child 1] and [Child 2] from 13 November 2022 to 2 January 2023.    

12.The Tribunal concludes that 13 November 2022 to 9 January 2023 (inclusive) totals 58 nights and that during that period, Mr Ellington had the following care: 

Nights of care	Nights of care: Mr Ellington/Mr Ellington’s parents	Nights of care: Ms Ellington/Ms Ellington’s parents
13, 14, 15, 16 November 2022	0	4
17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 November 2022	12	0
29, 30 November 2022 and 1 December 2022	0	3
2 and 3 December 2022	2	0
4, 5, 6, 7, 8 and 9 December 2022	6	0
10 December 2022	0	1
11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 December 2022	11	0
22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 December and 1, 2, 3, 4, 5, 6, 7, 8, 9 January 2023	0	19
31	27

13.The Tribunal notes that where it appeared, from the agreed dates in paragraph 10 that the nights were different, it referred to other evidence in the documents for clarity. For example, according to Ms Ellington’s notes, [Child 1] and [Child 2] went into Mr Ellington’s care on 16 November 2022.[12]

[12] Child Support papers, p 11.

14.The Tribunal considered who had care of [Child 1] and [Child 2] on the nights they were staying with Ms Ellington’s parents (ie. was their care delegated by Ms Ellington to her parents). The issue of delegated care typically arises where a child is residing with a non-parent. Common examples of delegated care include a child attending boarding school, or spending holidays with a grandparent, other relative or family friend. On the issue of delegated care, the Full Federal Court in Secretary, Department of Social Security v Lowe noted:

After all, most children will be at school for a large part of each year, and a few may board for weeks or months at some institution, such as a hospital, or a boarding school. Children stay at times with relatives. The delegation of daily care involved in such arrangements need not be regarded as denying the enduring role of a caring parent. While a child is at school, or in hospital, or staying with a relative, the child may remain, in a perfectly intelligible sense, “in the … care” of a parent or parents.[13]

[13] (1999) 56 ALD 609.

1. The Tribunal also notes that there is no statutory definition of care. In Polec & Staker & Anor (SSAT Appeal),[14] however, Hughes FM, said it is necessary to consider the following:

   [14] [2011] FMCAfam 959.

   a.     To what extent does the person meet 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?

   b.     To what extent does the person make arrangements for others to meet the needs of the child?

   c.     To what extent does the person pay for the costs of meeting the needs of the child?

   d.     To what extent does the person otherwise provide financial support for the child?

   e.     To what extent does the child provide for his or her own needs or have those needs met from another source?

   f.   To what extent is the child financially independent or financially supported from another source?

16.This is also reflected in the Child Support Guide section of the Guide to Social Security Law, at 2.2.1 Determining whether care exists.[15]

[15] Ellington told the Tribunal that she had arranged for her parents to look after [Child 1] and [Child 2] because she was moving house in relation to a new job and Mr Ellington had declined to take the children. Ms Ellington told the Tribunal that while [Child 1] and [Child 2] were with her parents: she paid for [Child 1] and [Child 2]’s flights; she was in constant communication with her parents and [Child 1] and [Child 2], at a rate of multiple times per day; she provided her parents with funds for [Child 1] and [Child 2]; during the period, her parents sought her approval for activities [Child 1] and [Child 2] participated in; and there were health issues regarding the children, particularly [Child 1], that Ms Ellington dealt with.

18.The Tribunal is satisfied that on the nights when [Child 1] and [Child 2] stayed with Ms Ellington’s parents, they remained in Ms Ellington’s care as she had control and responsibility for both [Child 1] and [Child 2] on those nights.

19.The Tribunal also notes that it is not in dispute that Mr Ellington had the following care of [Child 1] and [Child 2]:

2022

·School holidays after Term 1, 2022: half of the school holidays

·School holidays after Term 2, 2022: half of the school holidays

2023

·School holidays after Term 1, 2023: half of the school holidays

·School holidays after Term 2, 2023: half of the school holidays

·School holidays after Term 3, 2023: All of the school holidays

20.Ms Ellington and Mr Ellington both told the Tribunal that Mr Ellington had had no care of [Child 1] and [Child 2] for the school holidays after Term 3, 2022 but that Mr Ellington was to have care of them for all of the school holidays for Term 3, 2023, to make up for Mr Ellington not having that care.

21.Mr Ellington told the Tribunal that he had consistently had 14% care of [Child 1] and [Child 2]. The Tribunal asked Mr Ellington how he came to the figure of 14% and Mr Ellington said he had been advised by Child Support to ensure he had 14% care of [Child 1] and [Child 2].

22.Based on the evidence before it, the Tribunal is satisfied that [Child 1] and [Child 2] have been in the care of Ms Ellington with the exception of half of the school holidays after Terms 1, 2 and 3 (with an averaging effect between the 2022 and 2023 years with regard to the school holidays after Term 3). The Tribunal is also satisfied that Mr Ellington, for the period from 13 November 2022 to 2 January 2023 had 31 out of 58 nights of care (or 53% of care) during that period.

23.The Tribunal concludes, based on the evidence before it, however that, while Mr Ellington may have had four additional nights over one part of the 2022/23 summer holidays, the pattern of care that Mr Ellington has of [Child 1] and [Child 2], according to the evidence of Ms Ellington and Mr Ellington, is half of the school holidays each year. There are 40 weeks of school per year in Australia, which means there are 12 weeks of school holidays. This means the Tribunal finds that Mr Ellington has six weeks of care per year, or 42 nights care of [Child 1] and [Child 2] on an annual basis.

24.According to section 54D of the Act, if a responsible person’s percentage of care is not a whole percentage and the person’s percentage of care is greater than 50%, the percentage is rounded up to the nearest whole percentage and if the person’s percentage is less than 50%, the percentage is rounded down to the nearest whole percentage. Therefore, the Tribunal finds that Ms Ellington’s percentage of 323 nights out of 365 nights (88.49%) is to be rounded up to 89% and Mr Ellington’s care percentage of 42 nights out of 365 nights (11.51%) is to be rounded down to 11% under section 54D of the Act.

25.The Tribunal concludes that from 13 November 2022, Ms Ellington had a care percentage of 89% and Mr Ellington had a care percentage of 11%. This care is in accordance with the care that had been recorded in the child support assessment. This means the Tribunal finds there was no change in care of [Child 1] and [Child 2] and the existing percentage of care determinations should not be revoked.

DECISION

The decision under review is set aside and the Tribunal, in substitution, decides that there has been no change in the care of [Child 1] and [Child 2].