Freckleton and Freckleton (Child support)

[2020] AATA 1023

Freckleton and Freckleton (Child support) [2020] AATA 1023 (20 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017932

APPLICANT:  Mr Freckleton

OTHER PARTIES:  Child Support Registrar

Ms Freckleton

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  20 February 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the likely pattern of care – 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

BACKGROUND

1. This review is about a change to the percentage of care determinations for Mr Freckleton and Ms Freckleton in respect of their child [Child 1].  There has been a child support assessment in place since 21 January 2004 and Mr Freckleton is the liable parent.

2. Mr Freckleton and Ms Freckleton are the parents of [Child 2] (born February 1999), [Child 3] (born January 2001), [Child 1] (born July 2004) and [Child 4] (born August 2006).  [Child 2] and [Child 3] are no longer children of the assessment.  This matter relates to [Child 1] only.

3. From 27 June 2012 the child support assessment reflected Mr Freckleton as having 14 per cent care and Ms Freckleton as having 86 per cent care of [Child 1].

4. On 29 May 2019 Mr Freckleton notified the Child Support Agency that from 1 November 2017 there had been a change of care with Mr Freckleton providing care of 52 nights of [Child 1] and Ms Freckleton providing care of 52 nights with a third party also providing care.

5. On 20 July 2019 the Child Support Agency made the decision to record the care of [Child 1] as 0 per cent care to Mr Freckleton and 0 per cent care to Ms Freckleton from 1 July 2018.

6. On 18 September 2019 Ms Freckleton objected to this decision and on 13 November 2019 the Child Support Agency allowed the objection and made the decision to refuse a change of care for [Child 1] (the objection decision).

7. On 28 November 2019 Mr Freckleton applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 20 February 2020.  Mr Freckleton and Ms Freckleton gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (352 pages). Additional documents were received from Ms Freckleton prior to the hearing (B1-B12) and copies were distributed to the parties.

ISSUES

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

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·      has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·      from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Freckleton told the Tribunal that care of [Child 1] changed when Ms Freckleton moved to [Town 1] in early 2018 and left [Child 1] in [Town 2] in the care of a third party, [Mr A].

2. Mr Freckleton said the two towns were 244 km apart and Ms Freckleton was not caring for [Child 1] while she was living in [Town 1].  He said [Child 1] was not properly supervised, at times left on his own overnight with no food and often required to find his own way to school.  Mr Freckleton said [Child 1] had told him that on many occasions he needed to make his own meals.  Mr Freckleton added that he was living closer to [Child 1] than Ms Freckleton at that time.

3. Mr Freckleton said in addition he did not believe [Child 1] was receiving proper medical care while he was living in [Town 2] with [Mr A].  He said on 11 July 2019 he had taken [Child 1] to the dentist and was surprised to discover he needed extensive dental treatment.  Mr Freckleton said [Child 1]’s basic health needs were not being met.  Mr Freckleton said he also had concerns about [Child 1]’s welfare.  On one occasion [Child 1] had been driven home by the police because he was left at a sporting ground and had tried to make his own way home.

4. Mr Freckleton said he was never consulted about [Child 1] living on his own with [Mr A] and would not have approved.  Mr Freckleton said he believed [Child 1] felt like he had no choice because Ms Freckleton had told him it was in his best interests to stay at school in [Town 2] while she returned to [Town 1] with their youngest son [Child 4].

5. Mr Freckleton told the Tribunal it was unreasonable that he should pay child support for [Child 1] while he was living with a third party.  Mr Freckleton said his care of [Child 1] had remained essentially the same during the period in question and yet he had provided nearly $14,000 in child support while Ms Freckleton was not caring for him.  Mr Freckleton said in addition to paying child support he was meeting other costs for [Child 1] such as his prepaid mobile phone.

6. Mr Freckleton submitted that care should be based on nights of care.  He referred to the Child Support Guide at 2.2.1 to support his argument:

   A person's percentage of care for a child will generally be determined according to the actual care that they have of the child. The actual care may be reflected in care arrangements agreed upon by the parents, including non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child's care.

   A parent or non-parent carer's percentage of care for a day in a child support period is the percentage of care that the person is likely to have of the child during the care period.

   Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period.

7. Mr Freckleton said he notified the Child Support Agency of the change of care because Ms Freckleton was not having care of more than 300 nights, or 86 per cent care, of [Child 1].

8. Ms Freckleton told the Tribunal she was living in [Town 2] with her partner, [Mr A], until she returned to [Town 1] around 20 September 2018.  Ms Freckleton said the relocation was prompted primarily by concerns for her younger son, [Child 4], who was struggling at school in [Town 2] and wanted to return to his old school in [Town 1].  Ms Freckleton said she decided to leave [Child 1] in [Town 2] with [Mr A] because [Child 1] was engaged and focused at [School 1].  She said [Child 1] also had strong sporting and social connections in [Town 2] and she felt it would be more disruptive for him to move.

9. Ms Freckleton said she remained the primary carer for [Child 1] and made arrangements to ensure he was looked after when she was in [Town 1].  Ms Freckleton said during the school term she would spend many weekends in [Town 2] and be in [Town 1] during the week.  On other weekends she said [Mr A] would bring [Child 1] to [Town 1] to stay.  Ms Freckleton said when in [Town 2] she would place home cooked meals in the freezer and stock up with food and snacks for [Child 1] before leaving.  She would also provide [Mr A] with money to shop during the week and purchase any necessities [Child 1] might need.

10. Ms Freckleton told the Tribunal that although she was living in [Town 1] nothing else really changed.  Ms Freckleton said parenting arrangements remained the same and she maintained regular contact with [Child 1] during the week through video calls on [communication applications] or telephone.  She said if there was any reason to discipline [Child 1] she would do so personally.  Ms Freckleton added that [Mr A] would always advise her of any issues with [Child 1].  Ms Freckleton said [Child 1] was rarely unwell but as she was not working in [Town 1] if there was any reason for her to return to [Town 2] she could do so very quickly during the week.  Ms Freckleton said she also remained the primary point of contact at school for [Child 1].

11. The Tribunal notes in evidence from the Child Support Agency an extract from the enrolment form for [Child 1] to attend [School 1] dated 30 January 2018.  The form lists Ms Freckleton and [Mr A] as the contacts in the event of any first aid or medical emergencies.  The Tribunal also notes a consent form signed by Ms Freckleton on 3 June 2019 in relation to [Child 1]’s participation in a career advisory service.

12. Ms Freckleton told the Tribunal she also continued to support [Child 1] financially while she was living in [Town 1].  Ms Freckleton said in addition to giving [Mr A] cash to cover any incidental expenses during the week for [Child 1], she also contributed to the payment of utility costs such as power and water.  Ms Freckleton said she had provided the Child Support Agency with bank statements showing some of the expenses she met for [Child 1].

13. The Tribunal notes in evidence from the Child Support Agency bank statements covering the period from 4 October 2018 to 13 June 2019.  The bank statements show expenditure at [a supermarket], [a retail store] and other stores in [Town 2] during this period.  In her description of these transactions Ms Freckleton has said they were for food, clothes, school books and vitamins.  The Tribunal also notes bank transfers marked as “[Mr A]” on 7 September 2018 for $30, on 3 June 2019 for $880 and on 15 August 2019 for $1,600 as well as a receipt from [School 1] dated 11 June 2019 for $190 marked as “camp deposit”.

14. Ms Freckleton told the Tribunal she had not kept full records of all her expenditure relating to [Child 1] during the period he was with [Mr A] in [Town 2].  She said this was because she did not know her care would be disputed by Mr Freckleton.  Ms Freckleton said [Mr A] had also provided a statement outlining the arrangements in place while [Child 1] was staying with him.  She said she had also provided other third party statements to support she had continued caring for [Child 1].

15. The Tribunal notes in evidence a statement from [Mr A] dated 9 June 2019 which states that while [Child 1] was living at his home Ms Freckleton visits “on a regular basis” from Friday night to Monday morning through the school term and longer throughout holidays and long weekends.  It also states that in between visits Ms Freckleton “monitors his homework” and liaises with the school if there are any issues relating to [Child 1]’s behaviour.  [Mr A] confirms that Ms Freckleton provides him with cash deposits to cover general expenses and concludes by stating “I consider and expect Ms Freckleton to still be the primary parenting source for his Health and Welfare as well as taking direction from her in regard to any decisions that are made in regard to his care”.  The Tribunal also notes a third party statement dated 13 June 2019 from [Ms B], a friend through church group, confirming the accuracy of the details in the statement by [Mr A].

16. Mr Freckleton argues that Ms Freckleton was not providing care for [Child 1] once she moved from [Town 2] to [Town 1] and [Child 1] was then in the care of a third party.  Ms Freckleton has confirmed that [Child 1] remained with her partner, [Mr A], in [Town 2] when she moved to [Town 1] but believes she continued to be the primary care giver for [Child 1].

17. In such circumstances care as measured in nights may not be a true reflection of the care arrangements.  The Tribunal must determine whether or not a particular parent is providing ongoing care even though the child is living separately from that parent.

18. The term “care” is not defined in the legislation.  The Federal Magistrates Court of Australia, in Polec[1] discusses the meaning of “care” in detail including the factors that should be taken into account when deciding if a person is providing care for a child. These are:

    ·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 to 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?

    [1] Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959

19. On balance, in light of the evidence provided, the Tribunal finds that Ms Freckleton was providing ongoing care for [Child 1] even though he was living in the home of a third party.  Ms Freckleton continued to have overnight care of [Child 1] on weekends when [Child 1] was not in the care of Mr Freckleton.  She made the arrangements for [Mr A] to assist in caring for [Child 1] while she was in [Town 1] and was providing financial and emotional support for [Child 1].  Ms Freckleton remained in regular contact with [Child 1] and continued to make decisions in relation to his schooling.  The third party statement provided by [Mr A] supports that Ms Freckleton retained parental responsibility during the time [Child 1] was living with him.

20. The Tribunal is not satisfied there has been a change to the pattern of care for [Child 1] as advised by Mr Freckleton on 29 May 2019.  Therefore there is no reason for the existing percentage of care determinations to be revoked.

DECISION

The decision under review is affirmed.