Firth and Fish (Child support)

[2023] AATA 4462

Firth and Fish (Child support) [2023] AATA 4462 (18 December 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026645

APPLICANT:  Ms Firth

OTHER PARTIES:  Child Support Registrar

Mr Fish

TRIBUNAL:Member I Sheck

DECISION DATE:  18 December 2023

DECISION:

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

• Ms Firth’s care percentage of 0% in respect of [Child 1] and [Child 2] is revoked and replaced with a new care percentage of 50% from 23 May 2023; and

• Mr Fish’s care percentage of 100% in respect of [Child 1] and [Child 2] is revoked and replaced with a new care percentage of 50% from 9 November 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to care arrangements – 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 omitted 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 Firth is the mother of [Child 1] and [Child 2], twins born [in] July 2011, and Mr Fish is their stepfather. A case was registered with Services Australia – Child Support (Child Support) for the assessment of child support on 6 October 2021. The assessment of child support was based on care percentages of 100% to Mr Fish and 0% to Ms Firth. On 23 May 2023 Centrelink notified Child Support that the “FAO care” for the twins was being assessed as 51% for Mr Fish and 0% for Ms Firth with effect from 9 November 2022. Pursuant to the care alignment provisions the new care determination was applied by Child Support to Ms Firth’s child support assessment. On 24 May 2023 the parties were notified of the new care percentages for each party. 

2. On 23 June 2023 Mr Fish objected to the decision on the basis that he retained 100% care of the children. On 15 August 2023 an objections officer of Child Support allowed his objection.

3. By application received on 22 August 2023, Ms Firth asked this Tribunal to review the decision of the objections officer. On 18 December 2023, the Tribunal conducted a hearing at which Ms Firth gave evidence by MS Teams audio. Mr Fish had been notified of the scheduled time of the hearing but did not answer his telephone when called. The hearing continued in his absence. The Tribunal had before it the relevant documents from Child Support (pages 1 to 96), 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 23 May 2023 Child Support had recorded that in respect of [Child 1] and [Child 2], Ms Firth had an attributed percentage of care of 0% and Mr Fish 100%. The first issue is whether the care that was actually taking place corresponded with the recorded percentages of care.

2. The background to the case is as set out above. Ms Firth told the Tribunal that she never gave up on seeing the twins and they wanted to see her, but Mr Fish would not allow it. She talked to them on the phone all of the time. When asked what happened such that care resumed on 9 November 2022 Ms Firth responded, “maybe he just gave up”. Ms Firth told the Tribunal that from 9 November 2022 she and Mr Fish had care of [Child 1] and [Child 2] week about during school terms and half each of the school holidays. There was never any contact with Mr Fish; all of the details for pickup time were made by phone with the girls. They would bring their school bags, uniforms and other things that they needed for the week; Ms Firth had a supply of their clothes at her house. Ms Firth lives about half an hour’s drive from Mr Fish’s house. The Tribunal noted that the letter Ms Firth provided from NSW Health[1] states in part that Ms Firth was an inpatient from 17 May to 20 June 2023. Ms Firth agreed this was the case; she was in hospital for her mental health. [Child 1] and [Child 2] stayed with Mr Fish during that time. She called them every day and when she was given access to her phone she made video calls with them. After she was discharged from hospital the care resumed week about as it had been before.

   [1] Hearing papers, page 59

3. As noted above, Mr Fish did not participate in the hearing. His evidence to Child Support regarding the care arrangements is set out at pages 46 and 66 of the hearing papers. Mr Fish is recorded as saying, in a telephone conversation with a Child Support officer of 23 June 2023, that:

   [Mr Fish] said that back from the date in November 2022 [Ms Firth] had the children for ONE WEEK as per an informal agreement for [Ms Firth] try to reconcile with the children.

   [Mr Fish] said that after this one event occurred, [Ms Firth] only had a further 2 weekends (nights) care of BOTH children.

   [Mr Fish] said that now [Ms Firth] regularly comes over to his house to visit to take the children out for things like lunch and to go to the park. But [Ms Firth] since the one off event in November and the addition of 2 weekends, ceased taking the children and providing overnight care where she was the primary carer.

   In a further conversation dated 10 August 2023 Mr Fish is recorded as saying that:

   It's not every fortnight as she claims, it was occasionally. Since November 2022 she has had the girls may [sic] twice or three times for the week but not consistently. Last time was about three weeks ago and before that was about two months ago.

   She has been staying at my house herself sometimes and once she spent almost a whole week.

4. The Tribunal read out these statements to Ms Firth for her comments. She responded that they were false.

5. In addition to her personal evidence to Child Support, Ms Firth has provided some
   

   [2] Hearing papers, page 57

   [3] Hearing papers, page 56

   [4] Hearing papers, page 59

   [5] Hearing papers, page 50

   [6] Hearing papers, page 51

   third-party letters. A letter from her previous landlord, [Landlord A],[2] attests to her personal qualities. [Child 1] and [Child 2’s] bible studies teacher notes[3] that he has picked up and dropped off the girls from Ms Firth’s house on multiple occasions over the past six months. The letter is undated. Ms Firth has also provided a letter from her Community Mental Health Service care coordinator.[4] This sets out the care arrangements in detail and supports Ms Firth’s evidence that [Child 1] and [Child 2] are with her for seven days at a time; however the point must be made that this would have been information that Ms Firth herself provided to the author of the letter. Mr Fish has provided a letter from [the named] High School[5] dated 13 June 2023. This states that “school records indicate that all girls reside with their Stepfather Mr Fish”. Although this is no doubt accurate, it does not assist in determining whether there is a shared-care situation, as the school may not have been informed of that. Mr Fish has also provided a letter from a family friend attesting to his personal qualities.[6]

6. The Tribunal considers that the third-party evidence provided by the parties is not particularly useful in helping to determine the care arrangements, however the undated letter from the bible studies teacher does support that [Child 1] and [Child 2] were regularly at Ms Firth’s house. Ms Firth has consistently stated that the girls were with her on a week about basis, other than the one-off occasion when she was hospitalised. Mr Fish’s evidence has however varied. While he initially stated Ms Firth had care of the girls for one week only, commencing 9 November 2022, then for two weekends and no overnight care thereafter, he later stated that she had weekly care on two or three occasions.

7. 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. Taking into consideration the inconsistency of Mr Fish’s notifications to Child Support in June and August 2023, the third-party documents provided by the parties as well as Ms Firth’s oral submissions at the hearing, the Tribunal is satisfied that the care arrangements changed from 9 November 2022, such that Ms Firth had 50% care of [Child 1] and [Child 2] from that date. The Tribunal notes that there was a period of some five weeks when Ms Firth was in hospital so did not have care of [Child 1] and [Child 2], but consider this to be a one-off modification that does not affect the overall pattern of care.

Should the existing care determinations in relation to [Child 1] and [Child 2] 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. Ms Firth notified Centrelink, who notified Child Support in May 2023 that the care taking place did not correspond with the existing care of [Child 1] and [Child 2] from 9 November 2022.

2. The Tribunal is required to consider what the actual care of [Child 1] and [Child 2] was or is likely to be during the care period. As discussed above, the Tribunal accepts the evidence of Ms Firth that she had 50% of the care of [Child 1] and [Child 2] with effect from 9 November 2022. Accordingly, the previous determinations of care made from the start of the child support assessment on 6 October 2021, that Ms Firth had a percentage of care of 0% and Mr Fish had a percentage of care of 100%, must be revoked and new care determinations made.

Date of effect of the decision to revoke the care determinations

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 determinations take effect from the date of the change. That is not the case here. The notification by Ms Firth of the change in care was received by Child Support on 23 May 2023 and was in relation to a change of care event that happened on 9 November 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, their mother Ms Firth and stepfather Mr Fish. As Ms Firth’s care of [Child 1] and [Child 2] had increased from 0% to 50%, the determination as to her percentage of care must be revoked from 22 May 2023. As Mr Fish’s care had reduced, the revocation of his care determination must take effect from the day before the change day, that is, 8 November 2022.

2. The 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:

• Ms Firth’s care percentage of 0% in respect of [Child 1] and [Child 2] is revoked and replaced with a new care percentage of 50% from 23 May 2023; and

• Mr Fish’s care percentage of 100% in respect of [Child 1] and [Child 2] is revoked and replaced with a new care percentage of 50% from 9 November 2022.