Ellsworth and Brooks (Child support)

[2023] AATA 4005

Ellsworth and Brooks (Child support) [2023] AATA 4005 (17 October 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:         2023/BC026396

APPLICANT:  Mr Ellsworth

OTHER PARTIES:           Child Support Registrar

Ms Brooks

TRIBUNAL:Member I Sheck

DECISION DATE:            17 October 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Mr Ellsworth’s care percentage of 50% in respect of [Child 1] is revoked and replaced with a new care percentage of 100% from 6 February 2023; and

• Ms Brooks’ care percentage of 50% in respect of [Child 1] is revoked and replaced with a new care percentage of 0% from 14 July 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations 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 Ellsworth and Ms Brooks are the parents of [Child 1], born [in] January 2022. A case was registered with the Services Australia – the Child Support Agency (“Child Support”) for the assessment and collection of child support on 28 February 2022. The assessment of child support was based on care percentages of 50% for each parent. On 6 February 2023 Mr Ellsworth notified Child Support that [Child 1] was in his care for 100% of the time and had been so since 14 July 2022. Child Support contacted Ms Brooks regarding this and she advised that the care arrangements remained 50% for herself and Mr Ellsworth. Child Support refused to make a new determination of care. On 12 April 2023 the parties were notified that the care percentages would remain at 50% for each parent.

2. On 13 April 2023 Mr Ellsworth sought review of the decision. On 28 June 2023 an objections officer of Child Support disallowed his objection.

3. By application received on 12 July 2023, Mr Ellsworth asked this Tribunal to review the decision of the objections officer. On 17 October 2023, the Tribunal conducted a hearing at which Mr Ellsworth gave evidence by telephone. Ms Brooks did not participate in the hearing. The Tribunal had before it the relevant documents from Child Support (pages 1 to 108) and from Ms Brooks (pages B1 to B30), which had been copied to the parties.

CONSIDERATION

1. The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act1989 (“the Act”) and the Child Support (Registration and Collection) Act 1988 (“the Collection Act”). The Act sets out the statutory formula for the calculation of child support, which takes into account each parent’s adjusted taxable income and the level of care they provide for each child of the assessment. The provisions require Child Support (and the Tribunal on review) to determine whether an existing care determination can be revoked and if so, what new care percentage decision can be made.

Has there been a change in care?

1. As at 14 July 2022 Child Support had recorded that in respect of [Child 1], both Mr Ellsworth and Ms Brooks had an attributed percentage of care of 50%. The first issue is whether the care was actually taking place corresponded with the recorded percentages of care.

2. The background to the case is as set out above. Mr Ellsworth told the Tribunal that he and Ms Brooks had previously been in a relationship but it had ended before she knew she was pregnant with [Child 1]. After [Child 1] was born each of them cared for him week about. When [Child 1] was about five months old there was a deterioration in Ms Brooks’ mental health. She was having trouble dealing with [Child 1] and would often call Mr Ellsworth in distress saying that [Child 1] was crying and she didn’t know what to do. Ms Brooks agreed that [Child 1] should stay with Mr Ellsworth. Mr Ellsworth asked Ms Brooks to confirm that in writing and she did so. Mr Ellsworth told the Tribunal that [Child 1] had been with him 100% of the time since 14 July 2022. They went to court in May 2023 and [Child 1] now sees his mother on supervised visits. The Tribunal asked Mr Ellsworth why he had not notified Child Support of the change in care arrangements until February 2023. Mr Ellsworth responded that Ms Brooks said she was going to tell it. He asked her on several occasions whether she had and she said she was just about to. After several months he gave up and notified it himself.

3. In terms of the evidence provided to Child Support, the Tribunal referred Mr Ellsworth to the document at page 10 of the hearing papers, which was received by Child Support on 6 February 2023. It is a printed document which reads:

   I [Ms Brooks] give [Mr Ellsworth] permission to keep [Child 1] [sic] in his care until court & and my mental health is sorted out from the 14/7/22 4:43 am

   Mr Ellsworth advised that he had provided this document, which was a screenshot of Ms Brooks’ message to him through WhatsApp. That was how they usually communicated. The Tribunal accepts that this is the case. Mr Ellsworth told the Tribunal that his appeal was not about the money, he just wanted the record to accurately confirm that he had the sole care of [Child 1] since 14 July 2022. He also confirmed that Ms Brooks did provide him with some financial recompense for [Child 1]’s expenses (as indicated in Ms Brooks’ documents at pages B8 to B30) but these payments were not regular or consistent.

4. As noted above, Ms Brooks did not participate in the hearing. Her evidence to Child Support, regarding the care arrangements, is set out at page 14 of the hearing papers. Ms Brooks is recorded as saying, in a telephone conversation with a Child Support officer of 16 February 2023, that:

   care has not changed and is still 50/50 week on week off ... stated that this had been the care pattern all along.

   She further stated that:

   she could provide texts between the parents to show pattern of care ... stated she could also get third party statements from her parents and friends to confirm pattern of care is week on week off and has not changed.

   Ms Brooks has not provided any texts or third party confirmation that the care arrangements remained 50/50. She has instead provided bank statements showing that from 17 August 2022 she has been making bank transfers to Mr Ellsworth, generally headed “money for [Child 1]” or similar. The Tribunal is of the view that these payments support Mr Ellsworth’s claim that he had increased care of [Child 1].

5. Section 50 of the Act requires a new determination of a percentage of care to be made where the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. Mr Ellsworth’s notifications to Child Support in February 2023 and his oral submissions to the Tribunal satisfy the Tribunal that the care changed from 14 July 2022, such that Mr Ellsworth had sole care of [Child 1] from that date.

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

1. Subsection 54F(1) of the Act sets out 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. Mr Ellsworth notified Child Support in February 2023 that the care taking place did not correspond with the existing care of [Child 1] from 14 July 2022.

2. The Tribunal is required to consider what the actual care of [Child 1] was or is likely to be during the care period. The Tribunal has accepted Mr Ellsworth’s notification to Child Support and oral submissions to the Tribunal regarding the care of [Child 1]. As discussed above, the Tribunal accepts the evidence of Mr Ellsworth that he had 100% of the care of [Child 1] with effect from 14 July 2022. Accordingly, the determinations of care made from 28 February 2022, that Mr Ellsworth had a percentage of care of 50% and Ms Brooks had a percentage of care of 50%, must be revoked and new care determinations made.

Date of effect of the decision to revoke the care determination

1. In terms of the date of effect of the new care determinations, if a party has advised of the care change within 28 days of the change, then the new determination takes effect from the date of the change. That is not the case here. The notification by Mr Ellsworth of the change in care was received by Child Support on 6 February 2023 and was in relation to a change of care event that happened on 14 July 2022.

2. As the notification of the care change was more than 28 days after the stated change of care event, subsection 54F(3) provides:

   (3) The revocation of the determination takes effect at the end of:

   (a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day; or

(b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

(i) the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

(ii) the responsible person's care of the child has reduced--the day before the change of care day.

1. The term “responsible person” is defined at section 5 of the Act as a parent or non-parent carer of the child, so in this case, Mr Ellsworth and Ms Brooks. As Mr Ellsworth’s care of [Child 1] had increased from 50% to 100%, the determination as to his percentage of care must be revoked from 5 February 2023. As Ms Brooks’ care had reduced, the revocation of her care determination must take effect from the day before the change day, that is, 13 July 2022.

2. New care determinations must therefore be made from the day after the relevant revocations, setting out the new care percentages for each of the parties.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Mr Ellsworth’s care percentage of 50% in respect of [Child 1] is revoked and replaced with a new care percentage of 100% from 6 February 2023; and

• Ms Brooks’ care percentage of 50% in respect of [Child 1] is revoked and replaced with a new care percentage of 0% from 14 July 2022.