Fountaine and Fountaine (Child support)

[2024] AATA 489

Fountaine and Fountaine (Child support) [2024] AATA 489 (7 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC027121

APPLICANT:  Ms Fountaine

OTHER PARTIES:  Child Support Registrar

Mr Fountaine

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  7 February 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care - child living partly with third party - decision under review affirmed

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. Mr Fountaine (the father) and Ms Fountaine (the mother) are the parents of two children. This application concerns their younger daughter, [Child 1] (the child), born [in] July 2006. There has been a registered administrative assessment with Services Australia − Child Support (Child Support) since 23 June 2010. From 20 July 2019 the child was recorded as being in the mother’s 86% care and the father’s 14% care.

2. On 3 March 2023 the father advised Child Support that, as the mother had relocated from Tasmania to Canberra, he had 100% care of the child from 18 February 2023.[1] On the same day the father lodged a request to register a child support case.

   [1] At folio 8

3. On 26 May 2023 Child Support accepted the care change notification, determining that the father had 100% care and the mother had 0% care of the child from 18 February 2023.[2] On 31 May 2023 the father’s application for registration of the case was accepted from 18 February 2023.[3]

   [2] At folios 15 to 16

   [3] At folios 17 to 19

4. On 24 July 2023 the mother objected to the care decision.[4] On 25 August 2023 the objection was disallowed.

   [4] At folios 34 to 35

5. On 29 November 2023 the mother sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

6. On 17 January 2024 the Tribunal issued directions to the mother and father in the following terms:

   1.1.Ms Fountaine must provide the following evidence to the Administrative Appeals Tribunal (AAT) by the close of business on 30 January 2024:

   1.1.1.Any contemporary care calendars regarding care of the child [Child 1] from 18 February 2023 to date;

   1.1.2.Evidence of all transfers made to the child [Child 1] to meet her living expenses and other costs from 18 February 2023 to date;

   1.1.3.Evidence of all transfers made to Mr Fountaine in respect of child support payments or refunds from 18 February 2023 to date; and

   1.1.4.Any other evidence she intends to rely on at hearing.

   1.2.Mr Fountaine must provide the following evidence to the Administrative Appeals Tribunal (AAT) by the close of business on 30 January 2024:

   1.2.1Any contemporary care calendars regarding care of the child [Child 1] from 18 February 2023 to date;

   1.2.2Evidence of all support (financial and otherwise) that he has provided the child [Child 1] from 18 February 2023 to date; and

   1.2.3Any other evidence he intends to rely on at hearing.

7. On 31 January 2024 the mother sought an extension in which to comply with the directions. This was granted, with the father and mother having until close of business on 2 February 2024 to provide their response to the directions.

8. On 31 January 2024 the father provided the following response to the directions via email:[5]

   I have made numerous calls to question why this is continuing as I'm over arguing about this but have never had a return call.

   I received another letter yesterday dated the 8th January but have not had time to reply.

   I have informed child support also on various occasions regarding payment and I have stated that I don't want anything but if her mother is still required pay it either into [Child 1’s] account or her sisters account as she has been living there November.

   I have paid for [Child 1’s] education, doctors account's dietitian appointments and also her medication from [Hospital 1] and never asked for any assistance. Also leaving [Child 1] alone all the time I find that incorrect as I work shift work on a rolling basis and I have been in a relationship with a Lady who lives in [City 1] and I do spend time with her but she had her brother living in my residence.

   [5] At B2

9. In response to the request to provide reasons for his non-compliance with the directions, the father wrote:[6]

   I am getting tired of fighting and arguing with the mother of [Child 1]. I have not had any contact with her since September 2023 and have no intention to.

   I just want to get on with my new life and not have any issues. I know that she can't get any evidence on the claims she has put forward and the greatest amount of my earnings in the last 12months ate from my employer [Employer 1].

   So what ever the outcome is I shall just have to accept it

   [6] At B1

10. The matter was heard on 7 February 2024. The mother appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing but provided documentation (folios 1 to 100). The mother provided her response to the directions on 2 February 2024 (marked folios A1 to A26). The Tribunal also took into account the father’s response to the directions (marked folios B1 to B2). Members K Hamilton and A Ryding observed the hearing.

11. The Tribunal reached its decision on the day of hearing.

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The issues which arise in this case are as follows:

   ·      Was there a change to the child’s care arrangements?

   ·      If so, from what date should the existing care determination be revoked?

   ·      From what date should the administrative assessment be amended to reflect the changes?

CONSIDERATION

1. The legislative scheme requires a new care percentage determination to be made following notification to Child Support of a change to a child’s care arrangements. The relevant provisions are set down in Division 4 of Part 5 of the Act. Sections 49 and 50 of the Act require the decision maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances.

2. There is no statutory definition of care. However, the matter of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 is instructive on what constitutes care. Hughes FM stated at paragraph 56, that it is necessary to consider the following:

   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?

3. Prior to 18 February 2023 the Child Support care register reflected that the mother had 86% care and the father had 14% care. It is also apparent from the documents provided by Child Support that there was a further care change recorded from 11 October 2023 whereby the care record reflected that the father had 76% care and the mother 24% care of the child; neither parent has lodged an appeal regarding this decision.[7] Therefore, the relevant care period is 18 February to 10 October 2023 (the relevant period). It is also noted that the child support case ended on 5 November 2023.[8]

   [7] At folio 49

   [8] At folio 99

Was there a care change?

1. The father reported that there was a care change in respect of the child, whereby the mother had 0% care and the father had 100% care. It is apparent from the mother’s testimony at hearing that this was the agreed upon care arrangement upon the mother relocating to Canberra in February 2023.

2. However, on 24 July 2023 the mother advised Child Support that at the time she left Tasmania the child was residing with her adult sister.[9] She stated that the child did spend some nights or weekends in the father’s care, but that she was primarily living with her older sister and her boyfriend and that the plans were for the child to relocate to Canberra.[10] She went on to state that she has made direct transfers into the child’s bank account and had also transferred funds to the father. In support of her assertions regarding care, the mother stated that an apprehended violence order (AVO), protecting the child, was granted in May 2023 and [Sister A] (the sister), aged [age] years, was recorded as the child’s guardian.

   [9] At folios 34 to 35

   [10] At folio 34

3. On 27 July 2023, in response to the mother’s objection, the father reported that the child did spend nights at her sister’s home, including weekends “so they can hang out together”.[11] He confirmed that he was unable to attend the AVO hearing with the child due to his work commitments after starting a new job and so the AVO was signed by the sister. He went on to state that he did not want any arguments with the mother and would not be sending in any evidence.

   [11] At folio 40

4. On 3 August 2023 the mother stated that there was no impediment to the father attending the court with the child; in fact, he dropped both the child and the sister to the court, as the sister does not have a licence. She went on to state that the child lives between the sister’s home, the father’s home and the child’s boyfriend’s home. She estimated that on average the father would have two nights’ care per week. She went on to state that the child was home schooled due to bullying and both the sister and the father arranged her schooling.[12]

   [12] At folio 41

5. On 22 August 2023 the father stated that the child would only spend time with her sister once a fortnight, for about two or three nights’ duration. He confirmed that it is correct to reflect that he has 100% care of the child, as when she visits her boyfriend’s or sister’s homes it is just for a sleepover. He went on to state that he meets all the child’s costs and her home address is his home, including on the AVO. He stated that during the relevant period the mother had only provided money to the child on her birthday as they are estranged.[13]

   [13] At folio 43

6. The mother’s evidence at hearing can be summarised as follows. Prior to her leaving Tasmania, she had sole care of the child. Together they were living at the sister’s home. The decision to relocate from Tasmania to Canberra was made to assist the child in making a new start in a new city following a sexual assault in February 2021, after which the child was bullied and harassed at school. The plan was for the mother to set up a new home and that the child would follow soon after; it was felt that the child relocating before the mother was established would impact on the child’s mental health. The child was enrolled in [College 1] on 6 February 2023 and was to commence at the school in March 2023.

7. On 29 January 2023 the mother and the sister had a disagreement, and so the mother left the sister’s home on 30 January 2023 and then relocated to Canberra on 18 February 2023. The child refused to speak to the mother from 30 January 2023 until May 2023, as she took the sister’s side in the disagreement. Soon after the mother left the sister’s home, the child returned from time spent with the father and advised the sister that she did not want to live with her father. This coincided with the child starting a relationship with another child named [Boyfriend A] (the boyfriend).

8. The mother advised that prior to her decision to relocate the child rarely spent any time with the father. In fact, since about 2019 the child had not spent any nights in the father’s care. Immediately before her relocation the mother provided the father with pre-cooked meals, paid for the child’s medication and made cash transfers into the father’s account to ensure that the child’s needs were met. The child apparently ceased all medication soon after the mother relocated. She was concerned about the child’s health, but despite her requests to the father to take the child to a doctor, the father refused. During the relevant period she liaised with the child’s general practitioner trying to ensure that the child received the medical attention she needed.  

9. As to the care of the child from February 2023, the mother states that she was kept abreast of the child’s actual care, even though she and the child were not on speaking terms. She would speak to her son, who lived with the father, who would keep her informed of the child’s whereabouts. The father refused to provide her with any information about the child. She now believes that he could not provide her details, as her son has told her that the child would only visit the father’s home when the father was visiting his girlfriend. The mother estimates that the father spent every weekend with his girlfriend, in addition to about three to five weeknights per fortnight. She asserts that this had a negative impact on the child’s mental health and partly explained why the child would move from home to home, seeking company.

10. The mother alleges that the father was indifferent to the child’s welfare. The father would not even provide the child with the funds to have a haircut; instead, he would get his girlfriend to cut her hair. The child lost most of her clothing as she was couch surfing and these were not replaced. Therefore, when she visited the mother in Canberra in October 2023, she wore clothing that was too big for her and had no underwear, despite apparently asking her father to provide this for her. The mother had no option but to purchase a whole new wardrobe for the child.

11. The mother states that from February 2023 onwards the child was moving between the father’s home (when he was not present), to the boyfriend’s home (which the mother described as unclean) and then to the sister’s home where she would shower and be fed. The child also advised her that there was nothing for her to eat in the father’s home that would not trigger her irritable bowel syndrome (IBS). The mother states that she would send supplements to the father’s home to ensure that the child’s nutritional needs were met. If the father did give the child money (which was never enough to support herself with) it was only the money that the mother was actually paying him in child support; he never met any of the child’s costs from his own funds. The mother testified that whilst the father did provide the child with hair dye and moisturiser he was never concerned about “keeping a roof over her head”. She also asserts that the father failed to provide the child with any medications or medical review to assess her IBS. Eventually, due to her health conditions, the child decided to live full-time with the sister.

12. The sister provided the following statement:[14]

    [14] At folios 98 to 99

    Monday January 8^th

    To Whom It May Concern:

    My name is [Sister A] daughter of [Ms Fountaine] and stepdaughter of Mr Fountaine.

    I can confirm from the end of January 2023 that [Child 1] was in my care and living with me for a time, after Ms Fountaine had relocated to Canberra for work.

    Around the time of April, [Child 1] frequently moved from my house to her boyfriend’s house and to Mr Fountaine's house, not spending more than a few nights at a time there before moving on.

    Prior to Ms Fountaine leaving the state, she had bought [Child 1] a heap of new clothes and had off loaded frozen meat, prepared meals and pantry items at Mr Fountaine’s house for [Child 1].

    Are. On two occasions, Ms Fountaine had personally provided [Child 1] with money.

    13 March 2023

    $150.00 To provide her with clothes and self- care necessities. This was organised through Mr Fountaine and Ms Fountaine.

    10 April 2023

    $60.00 which can't be recalled for reasoning. This was organised through Ms Fountaine and [Brother A].

    Majority of the time Ms Fountaine had been sending money to Mr Fountaine and not [Child 1] directly because [Child 1] had no contact with her mother, other than that [Child 1] had been in contact twice with Ms Fountaine regarding healing their relationship. These calls happen through [Brother A's] phone, [Brother A] is Ms Fountaine and Mr Fountaine’s 1st child.

    [Redacted]

    [Redacted] For example, 11/10/23 [Child 1] went to Canberra to spend some time with Ms Fountaine (which was all paid for by Ms Fountaine with no help from Mr Fountaine)

    She arrived with hardly any clothes that fitted her and lacked some of the basics a young woman should have, which Ms Fountaine happily spent over $1000 to make sure she had what she needed.

    Many times, as [Child 1] had been “couch surfing” she had come back to my place [redacted] needing a shower and to take care of herself and doing her washing etc.

    [Child 1] has been permanently staying with me full-time since the 7th of November after a bout of sickness. [Child 1] ended up malnourished, dehydrated and was given food supplements due to her not being able to keep any food down or water.

    It was from that moment that she agreed that she needed somewhere stable to stay, where she could focus on her health and her future. [Child 1] has decided that she will permanently continue to live here, as she can get on her feet and become independent.

    [Child 1] does not stay with her father as she is often left alone [redacted]

    [Redacted] Being left alone for long periods of time is not good for her mental health and her complex health issues that she is currently dealing with. [Child 1] suffers from IBS. [Child 1] is working with a dietitian and gastro professionals on providing relief for her ongoing sickness. This sickness requires [Child 1] to have a specific diet at this stage as she is only just being properly diagnosed with this sickness after years of severe symptoms.

    During this time and other previous times in 2023 when [Child 1] has stayed with me, I have not received any support from Mr Fountaine regarding providing her with meals, accommodation, feminine products and more.

    Mr Fountaine gives [Child 1] money when she asks but it is enough to supporting her.

    If you have any questions or need add any other information, please do not hesitate to give me a call or email anytime.

13. The mother provided a colour-coded care calendar, apparently constructed by the child and the sister, largely from dates stamped on photographs.[15] When they were unsure of where the child was, they marked the calendar in red. The mother annotated the records after reviewing her text messages which indicated where the child was. The mother asserts that on the nights 23 to 27 April 2023 marked in red the child was actually in the sister’s care. As for the period 21 to 30 September 2023 the mother states that the child was staying with her boyfriend.

    [15] At folios A17 to A26

14. The Tribunal collated the care calendar provided, along with mother’s annotations. The care calendar suggests that during the 235 days making up the relevant period the father cared for the child 93 nights, the sister provided care for 58 nights, the child stayed with her boyfriend and his family for 83 nights and the child spent one night with a friend:

2023	Adult daughter	Father	Boyfriend	Friend
February	18–20, 24–28	21–23
March	1–4, 12–21, 25–27, 31	5–11, 22–24, 28–30
April	1–2, 12–16, 18–21, 23–27	3–11, 30	22, 28–29	17
May	5–7	1–4, 8–10, 22–31	11–21
June	8–10, 19–23, 28–30	1–7, 11–18, 24–27
July	1, 20–23, 27–31	2–4, 14–19, 26	5–13, 24–25
August	1, 23–24	2–8, 14–22	9–13, 25–31
September	3–8, 18–20	1–2, 9–17, 21–30
October	5–8	1–4, 9–10

1. It is difficult in situations such as these where parents provide differing accounts of the care of the child. Of course, the task is made more difficult by the father’s refusal to provide oral testimony or corroborating documentary evidence to the Tribunal. However, it is clear that in this case the child largely determined with whom she would spend time. The calculation of nights is made more difficult as the child spent a significant amount of time at the home of her boyfriend.

2. The Tribunal is satisfied that the care calendar is the best available evidence of the nights that the child spent with the father, sister and boyfriend during the relevant period. It suggests that the child spent an average of about six nights per fortnight at the father’s home, about five nights per fortnight with the boyfriend and about three to four nights per fortnight in the sister’s care. In a context where the child (aged 16 and 17 years during the relevant period) dictated where she spent her time the Tribunal is not persuaded that a finding that the child spent regular nights at the home of her sister and boyfriend in an of itself justifies a conclusion that the child was not in the father’s care for the purposes of the Act.

3. The mother asserts that she provided the following financial support for the benefit of the child during the relevant period:

Date	Recipient	Reason	Amount
11 March 2023	Father	Reimbursed father child support payment received prior to his registration application was accepted	$244.73[16]
13 March 2023	Child	Transferred directly into the child’s bank account	$150[17]
8 April 2023	Father	The father had advised her that he was broke and required money	$288[18]
10 April 2023	Child	Transferred directly into the child’s bank account	$60[19]
13 April 2023	Child’s Doctor	Medical appointment	$89[20]
10 August 2023	Child	Transferred directly into the child’s bank account	$60
Total	$891.73

[16] At folio A8

[17] At folio A8

[18] At folio A15

[19] At folio A15

[20] At folio A15

1. At hearing the mother confirmed that she did not make any payments towards the child’s school fees during the relevant period. She is not aware of whether the father paid the fees, noting that the invoice would normally be sent to her. She stated that she had met the child’s mobile costs during the relevant period and could provide evidence of this if required. She also asserted that her bank records reflect that she made other purchases for the child. She confirmed that at no time during the relevant period did she provide direct payments to the sister for the benefit of the child. However, she stressed that the child, father or sister would “only have to ask” and she would have provided financial assistance. She believes that the child’s boyfriend’s family were supporting the child when she stayed at their home. The mother testified that at no time during the relevant period was the child in receipt of youth allowance. She submitted that given the financial support provided the care register should reflect that she had 50% care of the child during the relevant period.

2. When asked to specify what financial support she understood the father had provided the child, the mother stated that she understood that the father would provide the child with money when asked, but it was not enough to meet the child’s needs. She concluded her testimony stating that the father’s behaviour has been “a real kick in the guts” after she provided day-to-day care and financial support to the children for 14 years.

3. The Tribunal finds that the mother provided negligible financial support to the child during the relevant period. By her own account, she transferred only $270 directly to the child, $288 to the father and paid for one medical appointment of $89. Whilst the Tribunal accepts that she also reimbursed the father $244.73, this was in respect of an overpayment of child support she received prior to the case being reversed. In the Tribunal’s view the transfer to the child and father of $558 and the payment of $89 in medical costs ($647 in total) over the 235-day care period does not support the mother’s contention that she cared for the child during the relevant period. In reaching this conclusion, the Tribunal noted that it did carefully consider the mother’s bank statements and determined that, despite her assertions to the contrary, there were no other purchases relating to provision of support to the child during the relevant period apart from those listed in the table at paragraph 31.

4. The Tribunal next considered who in fact did provide for the child. The Tribunal accepts that the sister did not receive any financial support from either the mother or the father to meet the child’s costs whilst in her care. Her statement suggests that she provided the child with food and menstrual hygiene products only; there is nothing to suggest that the sister provided the child with any money, clothing or met any of her travel, medical or schooling costs. As for the time the child spent at her boyfriend’s home, the mother assumes the boyfriend’s family were meeting the child’s costs. There is no evidence before the Tribunal to support or refute this. The mother’s evidence is such that the father did provide financial support to the child but suggested that this was not sufficient to meet the child’s needs, apparently because the child visited her in ill-fitting clothing and required new underwear. In her written statement the sister also confirmed that the father provided financial support to the child, but also suggested that this was insufficient to meet the child’s needs. She reached this conclusion apparently on the basis that the child would arrive at her home needing a shower and when visiting the mother in October 2023 arrived in ill-fitting clothes and “lacked some of the basics a young woman should have”.[21]

   [21] At folio 98

5. Further, the mother does not dispute that she did not provide for any of the child’s schooling, accommodation, food, medical (apart from the medical appointment on 13 April 2023) or other costs during the relevant care period. The mother only made modest transfers to the child during the same period. The sister attests to only providing the child with food and menstrual products when she stayed at her home. There is no evidence to suggest that the boyfriend or his family provided direct financial support to the child. There is also no evidence that the child was meeting her own costs or that the child was in receipt of regular financial support from a source other than the father. Both the mother and sister confirm that the father provided financial support directly to the child when asked. They suggest that this was inadequate, without apparently knowing the quantum or regularity of that support. On balance, the Tribunal is not persuaded that the father did not meet the child’s basic needs, including food, clothing, education, transport and health costs during the relevant period.

6. After examination of the factors outlined in Polec the Tribunal is satisfied that the care record accurately reflects the child’s actual care during the relevant period as the father had 100% care of the child. Having concluded that there was no change in the care arrangements, there is no basis on which the existing care determination may be revoked. This means that the decision under review is correct.

DECISION

The decision under review is affirmed.