Follon and Wayman (Child support)

[2018] AATA 3487

Follon and Wayman (Child support) [2018] AATA 3487 (14 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013803

APPLICANT:  Mr Follon

OTHER PARTIES:  Mrs Wayman

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  14 June 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Percentages of care - Whether there was a change to the likely pattern of care - No change to the pattern - 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

1. Mr Follon and Mrs Wayman are the parents of [Child 1] and [Child 2]. This case concerns the parents’ recorded care of [Child 2]. By way of background, the Department of Human Services – Child Support (“the CSA”) recorded Mr Follon as providing 6% care and Mrs Wayman as providing 94% care to [Child 2] from 13 February 2017. For child support purposes, if a parent is recorded as providing less than 14% care, the actual percentage does not affect the administratively assessed rate of child support, and similarly, if a parent is recorded as providing more than 86% care, the actual percentage does not affect the administratively assessed rate of child support: section 55C of the Child Support (Assessment) Act 1988 (“the Act”). The administratively assessed rate of child support payable in respect of 6% / 94% care is identical to the administratively assessed rate of child support payable in respect of 0% / 100% care.

2. On 7 November 2017, Mr Follon informed the CSA of two occasions on which Mrs Wayman potentially ceased providing care to [Child 2]. The first occasion was on 17 April 2017 when [Child 2] started living with Mrs Wayman’s mother, [Ms A], on [location]. At the time, Mrs Wayman was living at [a town] which is in [City 1]. The second occasion was on 5 November 2017 when [Child 2] started living with Mrs Wayman’s sister, [Ms B], in [Country 1]. On 6 December 2017 the CSA decided to record Mr Follon as providing 0% care and Mrs Wayman as providing 0% care from 17 April 2017. Mrs Wayman objected to that decision. An objections officer allowed her objection and decided not to record a change in care from 17 April 2017, i.e. Mr Follon continued to be recorded as providing 6% care and Mrs Wayman continued to be recorded as providing 94% care. Mr Follon sought further review by the Tribunal and I heard the matter on 14 June 2018. Mr Follon attended the hearing by conference phone. Mrs Wayman attended the hearing in person.

3. Mrs Wayman’s written submissions included the following concerning the reasons why [Child 2] started living with [Ms A]:

   ... [W]e were selling our home and moving to the [another location] to be closer to family and to hopefully move [Child 2] away from the growing negative influences and bullying at [the high school], where she was attending. We had hoped that she could get a head start on settling in and be surrounded by more positive influences, and it was something that [Child 2] was keen to do.

4. [Child 2] was 14 years old at that time. Mrs Wayman’s evidence concerning the care she provided while [Child 2] was living with [Ms A] can be summarised as follows. During the school week she was in daily phone contact with [Child 2]. She was also in daily phone contact with [Ms A] concerning [Child 2]. On weekends she visited [Child 2] and [Ms A] at [Ms A’s] home and spent time with them. She made weekly bank transfers of $80 to [Ms A] to cover some of [Child 2’s] ongoing costs and she purchased other items that [Child 2] needed while she was with [Child 2] on weekends.

5. Mr Follon stated that while [Child 2] was living with [Ms A], he was paying $120 per week in child support. He implied that Mrs Wayman had withheld the difference between the $120 per week that he paid and the $80 per week that she paid to [Ms A]. Mrs Wayman provided a record of her bank transfers to [Ms A]. In addition to the weekly payments of $80 she also made one-off payments of $150 for “school stuff”, $99 for “gym” and $230 for “dentist”. However, Mrs Wayman stated that the majority of her extra payments in respect of [Child 2] were made during her weekend visits to [Ms A’s] home. There is no reason to doubt Mrs Wayman’s evidence on that issue and I accept it.

6. The relevant policy in his case is contained at 2.2.1 of the Child Support Guide which is available on the internet. The Tribunal is not bound by Departmental policy. However, the Tribunal will apply lawful Departmental policy unless there are cogent reasons to the contrary: Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179. The relevant policy states:

   Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

   Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

7. Mrs Wayman was not only supporting [Child 2] financially; she was also activity involved in [Child 2’s] day-to-day care via her daily phone conversations with [Child 2] and [Ms A] during the school week and her visits during weekends. I find that Mrs Wayman was providing full‑time care to [Child 2] while [Child 2] was living with [Ms A].

8. Unfortunately the move to [another location] did not have the positive effect that Mrs Wayman had hoped. [Child 2] became more isolated from her family. Police officers and child welfare officers became involved. It is not necessary to recount the details here. There is no dispute that Mr Follon and Mrs Wayman agreed that it would be in [Child 2’s] best interest to start living with Mrs Wayman’s sister, [Ms B], in [Country 1]. At the hearing, Mr Follon said he agreed to that arrangement on the basis that [Child 2] would return to Australia after approximately three months. Mrs Wayman disputed that evidence. However, nothing turns on that issue in these proceedings.

9. [Child 2] flew to [Country 1] and started living with [Ms B] on 5 November 2017. Mrs Wayman stated, and I accept, that she had daily phone contact with [Child 2] and [Ms B]. Mrs Wayman provided evidence of the costs she incurred in respect of [Child 2] during the first few months that [Child 2] was living with [Ms B]. Mr Follon did not dispute that those costs significantly exceeded his payments of child support. Mrs Wayman flew to [Country 1] in December 2017 to be with [Child 2] on her 15th birthday. I find that Mrs Wayman continued to provide full-time care to [Child 2] when [Child 2] started living with [Ms B].

10. In summary, there was no change in care on 17 April 2017 or 5 November 2017.

11. Mr Follon also queried whether he was required to pay child support in respect of [Child 2] when she was not living in Australia. The Act provides for terminating events. Relevantly, paragraph 12(1)(f) of the Act states:

    A child support terminating event happens in relation to a child if:

    ...

    (f)none of the following subparagraphs applies any longer in relation to the child:

    (i)the child is present in Australia;

    (ii)the child is an Australian citizen;

    (iii)the child is ordinarily resident in Australia; ...

12. Both parents confirmed that [Child 2] is an Australian citizen. Her absence from Australia is not a terminating event. Child support continued to be payable notwithstanding her absence from Australia.

13. Finally, the evidence establishes that Mrs Wayman has been providing 100% care. She is recorded as providing 94% care. In those circumstances, section 54H of the Act provides decision-makers with a discretion to vary the parents’ recorded care, but it does not require decision-makers to vary the parents’ recorded care, presumably because, for the reasons stated earlier, such a variation would have no practical consequences. Mrs Wayman did not submit that the recorded care should be varied and I consider it preferable to simply affirm the decision under review.

DECISION

The decision under review is affirmed.