FFTS and Child Support Registrar (Child support second review)

[2024] AATA 338

FFTS and Child Support Registrar (Child support second review) [2024] AATA 338 (21 February 2024)

Division:GENERAL DIVISION

File Number(s):      2022/2995

Re:FFTS

APPLICANT

ANDChild Support Registrar

RESPONDENT

ANDFKGR

OTHER PARTY

DECISION

Tribunal:Senior Member A Poljak

Date: 21 February 2024

Place:Sydney

The decision under review is set aside and in substitution it is found that there was no change in the care provided by the applicant to Child B after June 2019. As such, the existing care percentage determination should not be revoked. 

..............................[SGD]..........................................

Senior Member A Poljak

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.

Catchwords

CHILD SUPPORT – Percentage of care – Care period – Whether there has been a change in the pattern of care – Whether existing care percentage determination should be revoked – Whether care for child ceased – Child support terminating event – Decision under review set aside and substituted.

Legislation

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988

Secondary Materials

Child Support Guide

REASONS FOR DECISION

Senior Member A Poljak

21 February 2024

1. The applicant (mother) and other party (father) are the separated parents of three children. These proceedings relate to the care of their second child (child B).

2. A child support case was first registered on 27 June 2006 in relation to Child B. Since 27 July 2016, the administrative assessment of child support for Child B reflected that the applicant provided 100% care and the other party 0% (existing care percentage determinations).

3. On 11 June 2019, the other party notified Services Australia (the Agency) that prior to 15 May 2019, Child B had ceased to live with the applicant and had been living with her stepbrother’s mother. He later advised that the change in care occurred on 10 May 2019.

4. On 11 and 27 June 2019, the applicant advised the Agency that she disagreed with the applicant’s notification and indicated that Child B occasionally stayed at the stepbrother’s mother’s house to study, but otherwise Child B stayed at her house every night and she was still financially and emotionally responsible for Child B.

5. On 27 June 2019, a delegate of the Registrar rejected the other party’s change in care notification as neither parent provided evidence for their claims (care refusal decision). The other party objected to the care refusal decision on 3 July 2019.

6. On 9 September 2019, following the provision of further evidence and claims by both parents, another delegate disallowed the other party’s objection (objection decision). The delegate was not satisfied that there had been a change in care given the conflicting information provided by the parents.

7. In July 2020, Child B turned 18 years of age. Beforehand, on 9 June 2020, the Registrar had decided to extend the child support case for the Child to the end of the school year being the date of 10 November 2020, following an application made by the applicant. On 9 July 2020, the other party wrote to the Registrar stating that he disagreed with that decision.

8. On 10 November 2020, Child B completed her secondary schooling and her child support assessment ended.

9. On 28 August 2021, the applicant applied for review of the objection decision.

10. On 21 March 2022, the Social Services & Child Support Division of the Administrative Appeals Tribunal (SSCSD) set aside the objection decision and in substitution determined:

    (a)neither parent had any care of Child B from 14 June 2019;

    (b)there were no special circumstances preventing the other party from applying to the AAT1 earlier than he did, such that section 95N of the Child Support (Registration and Collection) Act 1988 (Collection Act) applied; and

    (c)a “child support terminating event” (terminating event) occurred on 14 June 2019, to which the Registrar was to give effect from that date.

11. This is the decision under review in these proceedings.

    Issues

12. The issues to be determined in these proceedings are:

    (a)Whether the existing care percentage determination should be revoked and if so:

    (i)From when do the revocations take effect?

    (ii)What were the parents’ percentages of care for Child B during an appropriate period (which would constitute the ‘care period’)?

    (iii)From when do the new care percentage determinations take effect?

13. The other party has made extensive submissions which include claims of fraud, conspiracy, or discrimination. These do not form part of a review of the decision under review. The relevant issues relate only to the percentage of care for Child B during the relevant period.

    Consideration

14. The revocation of care percentage determinations is dealt with in Subdivision C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act). The relevant provisions are sections 54F, 54G and 54H.

15. Section 54H can only apply if sections 54F and 54G do not apply; section 54H(1)(c). Further, section 54F can only apply if section 54G does not apply; section 54F(1)(c). It is therefore appropriate to first consider the applicability of section 54G.

16. The existing care percentage determination from 2016, provides that the applicant was to have greater than regular care of Child B (100%). There is no question in this case of the applicant making Child B available to the other party given he has had no care of Child B for a number of years. The current care percentage determination was made under section 49 of the Assessment Act. Section 54G(1)(c) is therefore not satisfied and section 54G is not applicable.

17. Any revocation of the existing care percentage determination of 100% will necessarily lead to a decrease in care for the applicant. A revocation decision under either section 54F or 54H would ordinarily take effect at the end of the day before the change in care day; sections 54F(3)(b)(ii) or 54H(3)(b)(ii). However, in this case, the application to the SSCSD was made more than 28 days after notice was given of the objection decision. There being no application for review before this Tribunal of the SSCSD’s decision that special circumstances did not prevent the other party from applying for first review within time, the date of effect of the Tribunal’s decision must be 28 August 2021.

18. If the existing care percentage determination is revoked, it must be determined whether the applicant has had, or is likely to have had, a pattern of care for Child B during a care period. The care period is not of any fixed duration but will generally be “a 12-month period from the day on which actual care of a child changed”.

19. It does not appear to be in dispute that the applicant ceased to have overnight care of the child from June 2019. The issue is whether the applicant provided any other care of the child from that point in time. A person may provide actual care for a child without providing overnight care for that child. They may do so, for example, by providing the child with food, clothing, education, health care, or otherwise providing financially for the child’s care. The Child Support Guide (Guide) at [2.2.1] provides useful guidance for determining whether care exists.

20. The applicant submits that she continued to provide financial support for the child after she had moved out. On the other hand, the other party appears to accept that the applicant provided some financial support for the child since June 2019, but contends that it was not significant.

21. In a written statement dated 15 August 2022, the applicant said Child B resided with the other party’s ex-wife, Kate, between the period of mid-June 2019 to about the end of July 2019. She said that during this time, she continued to purchase groceries for Child B and provided her with transport whenever she needed.  The applicant said she spent time with Child B daily, would have meals with her, and take her to and from school to extracurricular activities and to work. She said she met all of Child B’s financial expenses during this time that she resided with Kate. The applicant further explained that during a brief period between late July and October 2019, Child B resided with her grandparents, but she still met all of Child B’s financial expenses including schooling, dietary requirements, and extracurricular activities. She said that she assisted Child B with school and schoolwork decisions and subjects, provided tutoring, decisions related to her casual work, university and all medical and health related decisions.

22. In late October 2019, Child B and the parties’ oldest child (Child X], secured a unit for both to live in together. The applicant said the rental agreement was in her and Child X’s name and she paid the entirety of the bond. She said she also purchased all the furniture for the property including white goods. The applicant said she would purchase weekly groceries, would cook meals, assist with cleaning and driving.

23. Annexed to the applicant’s written statement is a copy of the Tenant Trust Ledger for the unit between the period 22 October 2019 to 6 November 2020 under the names of Child X and the applicant. The ledger shows a total of $20,900 paid in rent. The applicant said she paid the sum of $12,230 on Child B’s behalf.

24. Child B obtained her drivers license in about July 2019. The applicant said that she purchased Child B a second-hand Toyota Corolla and paid for insurance, registration, petrol, and maintenance of the vehicle. The applicant said she would also transfer cash to Child B regularly to meet her expenses.

25. Annexed to the applicant’s written statement are copies of bank statements for the period 31 December 2018 to 22 February 2021 and a table of expenses paid for the relevant period out of the account. The documents show regular transfers of funds from the applicant into Child B’s account as well as regular payments for expenses for Child B.

26. Additional expenses met by the applicant included amounts towards weekly rent, gym membership fees, mobile phone bills, private health insurance, doctor’s fees and health related expenses, and costs of schooling including textbooks and stationery. The applicant said that she struggled to keep up with all of the expenses and her parents assisted in the approximate sum of $2,800. Child X also paid a share of the rental expenses.  

27. At hearing, the applicant reiterated the evidence as provided in her written statement. She stated that after June 2019 when Child B moved out of her home, she still had 100% care. She said she had to pay a lot more to support her, than had she still been living under her roof.

28. Child B has provided a written statement in these proceedings dated 7 June 2022. She confirms that she moved out of the other’s home in June 2019. She resided firstly with Kate, then with her grandparents and finally with Child X. Child B said:

    During this time (2019-2020) [the applicant] continued to support me financially. I can confirm that she used all the child support she received to cover my expenses. This included costs such as rent, school fees, phone expenses, car expenses i.e. insurance, registration and tyres. I also received support for school related expenses i.e. stationary and textbooks, and further living expenses i.e., groceries, a gym pass and transfers to my account.

29. In a written statement dated 14 August 2022, Child X detailed the reasons she said she moved out of the other party’s care and detailed the nature of the difficult relationship she had with the other party, describing abusive and traumatic experiences. Child X also detailed her and Child B’s living arrangements, relevantly, Child X said:  

    “Regarding [Child B’s] and [I’s] living arrangements, we moved into a flat in October 2019 together under a lease in my name and mum’s name. Prior to this [Child B] lived temporarily at Kate’s from late June 2019 until we found a flat we liked. Due to [the other party] harassing Kate… about [Child B’s] living arrangements, as well as Kate returning home to [redacted] for a period, [Child B] then stayed with Nan and Pop for a short time. Mum was fully financially responsible for [Child B], providing financial and emotional support throughout her living aways from home temporarily, and was in constant contact with Kate, Nan, and her school during this time. It was our wish [the other party] did not have any knowledge of our whereabouts and living arrangements…

    Mum covered all of [Child B’s] rent…

    …

    I was working, but Nan also paid a portion of my rent to assist me. Mum also covered all of [the Child B’s] expenses, including: purchasing her first car, car insurance, rego, CTP, car services and tyres, phone, school costs, school fees, health insurance, gym membership, regular money transfers, doctors’ appointments and [Child B’s] share of bills whilst living at the unit.

    Mum was regularly at our unit visiting and delivering fresh fruit, vegetables, groceries and cooked meals. Mum would eat dinner with us sometimes, help with our washing and cleaning and would purchase anything we needed for our unit. Mum was providing more financial support for [Child B] than required if she lived under her roof…”

30. Annexed to the statement of Child X dated 14 August 2022, is bank account statements for Child X for the period 14 November 2019 to 16 December 2020. The statement shows regular payments into Child X’s account which are said to be a true copy of rent payments made by the applicant for Child B.

31. In an earlier statement provided to the SSCSD dated 22 February 2022, Child X said she was living in a rental unit from October 2019 with a friend and that Child B visited regularly. She said Child B didn’t move in until she finished her HSC. Child X noted that the applicant paid for Child B’s bills including phone, car expenses, school expenses, schoolies trips, uniforms and shoes.

32. This earlier evidence of Child X is plainly inconsistent to her recent evidence that Child B resided with her at the rental unit from October 2019. There does also appear to be other references in the evidence of Child B’s living arrangements during the relevant time which are inconsistent. Having considered the evidence as a whole, it is apparent that Child B, Child X, and the applicant have a very turbulent and difficult relationship with the other party. Child B and Child X decided years ago not to have contact with the other party and it is plain that they wished their living arrangements to be kept private from the other party. Both Child B and Child X were very reluctant to engage in these proceedings. Child B provided a written statement only in these proceedings and expressly stated that she opposed giving oral evidence. Child X expressly stated that she would not appear at hearing to give evidence if the other party was present. Given the circumstances of this matter, the difficult relationship between Child X, Child B and the applicant, is a very plausible explanation for the inconsistencies in the evidence over time. In any event, it is now accepted that Child B moved out of the applicant’s home in June 2019. It is also plain that the evidence is consistent about the applicant maintaining full financial and emotional responsibility for Child B after this time, despite her living elsewhere.

33. Child B’s grandmother has also provided a written statement in these proceedings dated 14 August 2022. She states that Child B has been in the applicant’s full-time care from 2016 to when she completed her high school education in 2020. She said that Child B left the applicant’s house in June 2019 and lived with her for approximately 3 months until she found suitable accommodation with Child X. She further stated that throughout this time, the applicant paid all Child B’s expenses and provided all school requirements such as school fees and uniforms. She also said the applicant purchased a car for Child B in 2019. Child B’s grandmother further explained that it became necessary for her to contribute financially to large bills for motor vehicle expenses and school trips and contributed to Child X’s fortnightly rent payments.  

34. Kate advised in a written statement dated 22 February 2022, that she was never financially responsible for Child B.

35. Considering all of the available evidence, it is plain that despite Child B moving out of the applicant’s home in June 2019, the applicant still maintained 100% care. Although Child B did not stay overnight under the applicant’s roof, the applicant nevertheless provided full financial and emotional support. She delegated overnight accommodation of Child B to Kate and to her parents for a short period of time but maintained overall responsibility for Child B at all times. This was also the case when child B resided with Child X. I am satisfied that from June 2019, the applicant was responsible for making decisions related to Child B’s health, schooling, education, and recreational needs. She paid for the cost of accommodation, food, clothing, health needs, phone, transport, and other costs to meet Child B’s needs.  When the applicant was unable to meet the needs of Child B financially, she sought assistance from her parents.

    Decision

36. The decision under review is set aside and in substitution it is found that there was no change in the care provided by the applicant to Child B after June 2019. As such, the existing care percentage determination should not be revoked. 

37.     I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.........................[SGD]...............................................

Associate

Dated: 21 February 2024

Date of hearing:

28 November 2023

Applicant:

Self-represented

Other Party:

Solicitor for the Respondent:

Self-represented

Mr A Taverniti, Sparke Helmore Lawyers