Gaekwad and Sidhu (Child support)

[2020] AATA 5828

Gaekwad and Sidhu (Child support) [2020] AATA 5828 (10 December 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC020042

APPLICANT:  Ms Gaekwad

OTHER PARTIES:  Child Support Registrar

Mr Sidhu

TRIBUNAL:Member Y Webb

DECISION DATE:  10 December 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of whether care exists – no care provided by either parent – 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 review is about the percentages of care of Ms Gaekwad and Mr Sidhu in relation to their younger son (“the child”).  The child is now 14 years old.

2. Child support has been collectable by the Child Support Agency since 24 December 2004.

3. Since 1 July 2014 the percentages of care for the child were recorded by the Child Support Agency as 51% care to Ms Gaekwad and 49% care to Mr Sidhu.

4. On 17 January 2020 Ms Gaekwad contacted the Child Support Agency and advised that the child had moved interstate from 4 October 2019 and was living with her brother (the child’s uncle) in Adelaide. She stated that she now had 100% care.  She stated that she was paying for the child’s school fees but she did not contribute to the living costs which were being met by her brother (the child’s uncle).

5. The Child Support Agency contacted Mr Sidhu and he confirmed his understanding that the child was now living interstate as arranged by Ms Gaekwad.  He said that the child’s uncle was taking care of all of the financial costs of the child. He stated that he does not believe that the mother was paying for the school fees which he understood were $60,000 as her income is around $20,000 per year.  Mr Sidhu stated that he did not believe that the mother was meeting any of the child’s expenses.

6. On 11 April 2020 an officer of the Child Support Agency decided that Ms Gaekwad’s percentage of care for the child was 100% and Mr Sidhu’s was 0% from 4 October 2019 but with a date of effect of 17 January 2020 for Ms Gaekwad and a date of effect of 4 October 2019 for Mr Sidhu.

7. On 25 May 2020 Mr Sidhu objected to that decision. 

8. On 10 July 2020 an objections officer allowed his objection.  The objections officer determined that Ms Gaekwad had 0% care and Mr Sidhu also had 0% care from 4 October 2019. 

9. On 12 October 2020 Ms Gaekwad requested a review by the Tribunal.

10. Ms Gaekwad and Mr Sidhu both attended the hearing by way of a telephone conference on 10 December 2020 and both gave evidence on affirmation. 

11. The Child Support Agency provided papers relevant to this matter: one bundle contained numbered pages 1 to 284 and these were marked as Exhibit C1. The smaller bundle, numbered pages 285 to 304, was marked as Exhibit C2.  Ms Gaekwad provided additional documents and these were marked Exhibits A1 to A14.

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to the care of the child in the relevant care period?

   b)Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

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

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

3. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflect the pattern of care that a person has, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will continue to apply unless or until a further care determination is made).

4. Section 54A of the Assessment Act then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

5. In this case, neither Ms Gaekwad nor Mr Sidhu contended that nights were an unsuitable measure of the care of the child.  Hence the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.

6. The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the child and whether the care that was occurring did not correspond with the pre-existing care determination of 51% to Ms Gaekwad and 49% to Mr Sidhu.

7. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the Tribunal takes into account evidence of the pattern of care the person has had, from the date of the asserted change in care (4 October 2019) and evidence of the pattern of care the person is, or was, likely to have going forward at that point in time.

   [1] Paragraph 50(1)(a) of the Assessment Act

Ms Gaekwad’s evidence and contentions

1. Ms Gaekwad told the Tribunal that the child was previously living with her in Sydney and she decided to allow him to live with his older brother in Adelaide which meant that both children were residing with her brother (the children’s uncle) and both children were attending [School] in Adelaide.  She stated that the reason that the younger child went to Adelaide was that his older brother was already living in Adelaide and residing with her brother (his uncle) and the younger child really wanted to spend time with his older brother.  She stated that the younger child made “his independent decision” to stay in Adelaide while he was visiting his uncle and brother in October 2019.  She stated that he missed his brother and needed his brother’s support and that they share an interest in [Sport] and they supported each other while they were away from her.  She stated that her brother is [an Occupation] and he could assist the child with his studies.  She stated that the child was attending [School] and that she was re-drawing on her mortgage to pay the [School]’s school fees.  She stated that her father (who lives in Adelaide) enrolled the child at [School] and her father assisted her to purchase the child’s school uniform. She stated that she had telephone interviews with the child’s teachers.

2. She stated that she was not paying for any of the child’s day to day living expenses as her brother was wealthy and she did not believe that he would accept any money from her.  She stated that she paid for some of the [Sport] equipment that her son requested.

3. She stated that although she was still living in Sydney and the child was in Adelaide (until July 2020 when she moved to Adelaide) she was still in communication with the child on two or three occasions each week. 

4. Ms Gaekwad stated that both she and her brother (the child’s uncle) made the day to day decisions regarding the child and she also involved the child in decision making.  She stated that she provided ongoing emotional support to the child while he was in Adelaide residing with his brother and uncle. 

5. Within the C1 papers was a bank transaction printout in the name of Ms Gaekwad showing a BillPay payment to [School] of $16,945.69 on 18 February 2020.  Ms Gaekwad stated that she paid the child’s school fees.

Mr Sidhu’s evidence and contentions

1. Mr Sidhu contended that Ms Gaekwad was not providing financial support to the child as her income was $22,000 and the child was attending a private school interstate and residing with Ms Gaekwad’s brother who is very wealthy. He contended that Ms Gaekwad’s brother was financially supporting the child and meeting all of the child’s expenses.

2. Mr Sidhu stated that he did not believe that the mother was making decisions for the child.  He stated that the child was making his own decisions.

3. Mr Sidhu said that when the child was living in Sydney before he went to Adelaide he was attending a government school.  Mr Sidhu said he was not consulted about the move to Adelaide or the private schooling.  He never agreed to these changes.

4. Mr Sidhu stated that he also had bought items that the child needed for [Sport] and these items were still at his house.  He stated that his relationship with the child has been cut off.

5. Mr Sidhu stated that the mother was now living in Adelaide at the home of her brother.

The Tribunal’s consideration

1. The Tribunal carefully considered all of the available information including the statements at the hearing of Ms Gaekwad and Mr Sidhu.

2. There was no dispute between the parents that the child relocated from Sydney to Adelaide from 4 October 2019 to reside with his uncle and his older brother who was already living with his uncle’s family.  It was arranged that the child would, with his older brother, attend [School]. 

3. The issue for determination is whether the child could be considered to be in the care of Ms Gaekwad in the care period beginning 4 October 2019. 

4. The term “care” is not defined in the legislation.  In the case of Polec & Staker[2] the Federal Magistrates Court of Australia stated that the words of the legislation are to be construed having regard to the objects of the legislation.  The Court stated that “the objects are clearly directed to ensuring that a person with the ongoing daily care of a child should receive adequate financial support from the parents of the child according to the capacity of each of the parents to provide that support”.

   [2] [2011] FMCAfam 959

5. The Court went on to state (at para 56) that in determining whether and to what extent a person has care of a child for the purposes of the child support legislation, the following factors are relevant considerations:

   (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?

6. Ms Gaekwad admitted that she did not pay any of the child’s day to day living expenses such as accommodation costs and food.  She stated that her brother is wealthy and that he took care of the day to day costs.

7. Ms Gaekwad admitted that the only significant cost which she met was the [School] school fees.  She stated that she was funding these by redrawing on her mortgage.  She provided an excerpt from her bank statement but this showed only one payment to [School] on 18 February 2020 of $16,945.69.  The Tribunal is satisfied that Ms Gaekwad has funded some of the [School] fees but it is not persuaded that she has paid for all of the fees from 4 October 2019.

8. The Tribunal accepts that Ms Gaekwad has assisted with the costs of [Sport] gear but there is insufficient evidence to substantiate that Ms Gaekwad was financially supporting the child to any significant degree.

9. In relation to emotional support and decisions relating to the child the Tribunal accepts that Ms Gaekwad was in contact with the child’s teachers and that she spoke with the child two or three times a week.  However, in the period 4 October 2019 to July 2020 Ms Gaekwad advised that she was still living in Sydney and the child in Adelaide and the Tribunal is not persuaded that she was providing a significant oversight of the child in relation to day to day matters albeit that the Tribunal accepts that she was providing some emotional support from afar.

10. During the relevant period the Tribunal concludes that Ms Gaekwad was not predominantly responsible for the care of the child but rather that the child was being mainly supported financially and his day to day needs were being met by his uncle, Ms Gaekwad’s brother.

11. Hence, the Tribunal agrees with the decision of the objections officer that the care percentages for the child were 0% to Ms Gaekwad and 0% to Mr Sidhu from 4 October 2019.

DECISION

The decision under review is affirmed.