Frampton and Lemer (Child support)

[2023] AATA 277

Frampton and Lemer (Child support) [2023] AATA 277 (18 January 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024758

APPLICANT:  Ms Frampton

OTHER PARTIES:  Child Support Registrar

Mr Lemer

TRIBUNAL:Member F Zuccala

DECISION DATE:  18 January 2023

DECISION:

The decision under review is affirmed.

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 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. This application relates to a decision by the Child Support Agency (Child Support) relating to the particulars of the assessment, being the care percentage maintained by Child Support for [the child].

2. Ms Frampton and Mr Lemer are the separated parents of [the child]. This matter relates to contact made by Mr Lemer with Child Support on 7 July 2021 (received by Child Support on 27 July 2021) regarding changes to the care arrangements for [the child].  Mr Lemer lives in [Country].  At the time of Mr Lemer’s contact with Child Support, the administrative assessment of child support reflected Ms Frampton as having 100% care and Mr Lemer as having 0% care of [the child] from 1 July 2008.

3. Following Mr Lemer’s contact with Child Support, on 12 April 2022, a child support officer made a decision that Ms Frampton had had 0% care of [the child] from 5 July 2021 and Mr Lemer had had 0% care of [the child] from 5 July 2021.

4. On 26 April 2022, Ms Frampton lodged an objection to this decision.  On 2 June 2022, an objections officer of Child Support disallowed the objection.

5. On 29 September 2022, Ms Frampton made an application to the Administrative Appeals Tribunal (the tribunal) for an independent review of Child Support’s decision.

6. The tribunal hearing was initially held on 14 December 2022, by MS Teams audio.  The tribunal had difficulty contacting Mr Lemer, and the hearing commenced with Ms Frampton alone.  Eventually the tribunal was able to contact Mr Lemer and the matter was adjourned for 10 mins.  When the hearing recommenced the tribunal was unable to contact Ms Frampton.  The tribunal re-convened the hearing on 18 January 2023.  Mr Lemer advised the tribunal that he did not wish to participate in a further hearing.  Ms Frampton advised that she was unable to participate in the hearing and that the decision should be made on the evidence already provided. On 18 January 2023 the tribunal made its decision based on the affirmed evidence of both parties at the 14 December 2022 hearing. The tribunal had before it a bundle of documents numbered 1 to 119 which had been sent to both parties prior to the hearing.

CONSIDERATION

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

2. The provisions of the Assessment Act relevant to this decision are sections 54F, 54G and 54H. The legal issue for the tribunal in this matter is whether the existing care percentage maintained by Child Support for the child [the child] is to be revoked and, if so, from what date a new care determination is to be made. The tribunal notes that the relevant care determination at the time Mr Lemer contacted Child Support reflected that Ms Frampton had 100% care of [the child] and Mr Lemer had 0% care of [the child].

3. The tribunal first considered section 54F of the Assessment Act. Subsection 54F(1) provides that the Registrar (or the tribunal, standing in the shoes of the Registrar) must revoke a determination of a responsible person’s percentage of care in the following circumstances: (a) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and (b) the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under sections 49 or 50, another percentage to be the person’s percentage of care for the child; and (c) section 54G does not apply; and (d) subsection (2) applies in relation to the individual. Note: The Registrar must make another determination under sections 49 or 50 to replace the revoked determination: see paragraphs 49(1)(b) or 50(1)(b).

10.The tribunal is satisfied that Child Support became aware on 27 July 2021 that the care of [the child] that was taking place did not correspond with Ms Frampton’s existing percentage of care for [the child]. Paragraph 54F(1)(a) is met.

11.Paragraph 54F(1)(b) requires the tribunal to determine whether the parents’ cost percentages for [the child] would change if the tribunal were to determine another percentage of care for [the child]. The legal issue for the tribunal in this matter is whether Ms Frampton continued providing care to [the child], within the meaning of the Assessment Act, from 5 July 2021 onwards.

12.In looking at the care arrangements for [the child] from 5 July onwards, the tribunal noted that subsection 54A(1) of the Assessment Act provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar (or the tribunal, standing in the shoes of the Registrar) is satisfied the child was, or is likely to be, in the care of a person during the care period. In some circumstances, however, it is appropriate to look at a care percentage that reflects something other than the nights of care provided by a parent. In such circumstances, the tribunal will consider other factors that indicate where a parent is providing care for a child.

13.Ms Frampton told the tribunal that [the child] left her care in July 2021.  She said that she was ‘taken’ by [Ms A], who was a friend of Mr Lemer and that [the child] wanted to go.  Ms Frampton stated that [the child] returned to her care sometime in August 2021 (she was unable to recall the exact date but thought it was around 12 August 2021).  It was put to Ms Frampton that Mr Lemer advised Child Support that [the child] left her care on or before 3 June 2021.[1]   Ms Frampton agreed that it must have been in June and that [the child] was not in her care in June or July 2021 but returned to her care in August 2021 until April 2022. 

[1] Centrelink papers, p 9

14.The tribunal accepted from Ms Frampton’s evidence that [the child] left her care in or around June 2021 and lived with a friend of Mr Lemer’s.  Ms Frampton told the tribunal that during the period when [the child] left her care, Ms Frampton had no contact with [the child] and provided no financial support for [the child]. In circumstances where [the child] was not physically residing with Ms Frampton from early June 2021 until mid-August 2021, the tribunal had regard to the guidance provided by the Federal Magistrates Court in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec & Staker), in determining whether Ms Frampton continued to provide care for [the child] – for child support purposes and within the meaning of the Assessment Act – after [the child] left the home in or around early June 2021. The Court in Polec & Staker stated that the following factors should be considered when deciding if a person is providing care for a child (at [56]):

·    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?

·    To what extent does the person make arrangements for others to meet the needs of the child?

·    To what extent does the person pay for the costs of meeting the needs of the child?

·    To what extent does the person otherwise provide financial support for the child?

·    To what extent does the child provide for his or her own needs or have those needs met from another source?

·    To what extent is the child financially independent or financially supported from another source?

15.Having regard to the guidance in Polec & Staker, the tribunal makes the following findings about the care of [the child] from early June 2021 onwards.

16.From the time [the child] was willingly taken from Ms Frampton’s home, she lived with Mr Lemer’s friend, [Ms A].  During the period from early June 2021 to mid-August 2021, Ms Frampton provided no financial support for [the child]’s day to day needs, nor did Ms Frampton have any contact with [the child] during this period.  Ms Frampton did not provide accommodation, clothing, food, childcare, emotional support, supervision, transport or extra-curricular activities for [the child].  Although she remained the primary contact at [the child]’s school, Ms Frampton told the tribunal that she has no recollection being contacted by the school for any incident at the school during this period.  Ms Frampton did attend an appointment with [Mental health services provider] on 16 July 2021, however, she attended this appointment was attended only by her alone. 

17.Mr Lemer told the tribunal that he was unsure exactly how long [the child] was living with [Ms A] but it was ‘around a couple of months’.  Mr Lemer said that he provided some financial support to [the child] through her half-sister (his other daughter) but he later found out that she spent about half the money on herself and not [the child].  Mr Lemer gave evidence that he did not provide any emotional support to [the child] and didn’t know how she was supported financially other than through [Ms A] feeding her.  He said he didn’t hear from [the child] after he questioned her during a call if she was only calling him to ask for more money.

18.In circumstances where [the child] was residing away from Ms Frampton’s residence after early June 2021, was not receiving any financial support from Ms Frampton and in fact did not have any contact with Ms Frampton, the tribunal was not persuaded that Ms Frampton was providing care to [the child] within the meaning of the Assessment Act.

19.The tribunal finds that, if it were to make a new determination that Ms Frampton had 0% care of [the child] from 5 July 2021, Ms Frampton’s cost percentage would change from 100% to 0% (see: section 55C of the Assessment Act). The tribunal finds that paragraph 54F(1)(b) of the Assessment Act is met.

20.As to whether section 54G of the Assessment Act applies, the tribunal finds that it does not on the basis that no other individual made [the child] available to Ms Frampton. The tribunal makes this finding on the basis that [the child] herself was choosing where to spend her time from June 2021 onwards. Paragraph 54F(1)(c) of the Assessment Act is met.

21.The tribunal finds that subsection 54F(2) of the Assessment Act is met, on the basis that there was no interim period. Paragraph 54F(1)(d) of the Assessment Act is also met.

22.As the requirements set out in subsection 54F(2) of the Assessment Act are met, the Tribunal must revoke the existing determination of care and make a new care determination that from 5 July 2021 Ms Frampton had 0% care of [the child] and Mr Lemer had 0% care of [the child].

DECISION

The tribunal affirms the decision under review.