Gagnon and Maddock (Child support)

[2020] AATA 5096

Gagnon and Maddock (Child support) [2020] AATA 5096 (17 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019379

APPLICANT:  Miss Gagnon

OTHER PARTIES:  Child Support Registrar

Mr Maddock

TRIBUNAL:Member J Longo

DECISION DATE:  17 September 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Miss Gagnon has a percentage of care of 50% for [Child 1] and Mr Maddock has a percentage of care of 50% for [Child 1] from 1 March 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations should be revoked and new determinations made – decision under review set aside and substituted

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.Mr Maddock and Miss Gagnon are the parents of [Child 1]. From 6 December 2019 the now Services Australia – Child Support (the Department) had determined that Miss Gagnon had a percentage of care for [Child 1] of 0% and that Mr Maddock had a percentage of care of 100% for [Child 1].

2.On 17 April 2020, Services Australia – Centrelink (Centrelink) notified the Department that there had been a change in the care for [Child 1], and that Centrelink had determined that Miss Gagnon had 100% care of [Child 1] from 1 March 2020 and Mr Maddock had 0% care of [Child 1].

3.On 17 April 2020 Mr Maddock lodged an objection to the care decision by Centrelink. On 2 July 2020, the Department allowed the objection and determined that Mr Maddock still had 100% care of [Child 1] and Miss Gagnon had 0% care of [Child 1].

4.On 3 July 2020, Miss Gagnon lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 17 September 2020. Miss Gagnon and Mr Maddock spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department (296 pages), which were also sent to the parties prior to the hearing.

CONSIDERATION

5.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [Child 1]?

6.It is not in dispute that the Department had recorded the care of [Child 1] as Mr Maddock having 100% care and Miss Gagnon having 0% of the care from 6 December 2019. It is also not in dispute that Centrelink advised the Department on 17 April 2020 that the care of [Child 1] had changed and that Centrelink had recorded Miss Gagnon as having 100% care of [Child 1] and Mr Maddock as having 0% care from 1 March 2020. The tribunal finds accordingly.

7.Miss Gagnon and Mr Maddock both confirmed that there were no court orders or parenting plans in place for [Child 1]. Miss Gagnon stated that she moved to where [Child 1] was living, with [Ms A], on 1 March 2020. Miss Gagnon stated that prior to moving, she and [Child 1] were homeless. She was provided with gift cards which allowed her to purchase fuel and groceries, which she stated that she used to buy food for her and [Child 1]. Miss Gagnon stated that she was not paying rent but was cleaning the house, as well as buying food for her and [Child 1]. Miss Gagnon stated that she was also taking [Child 1] to school at this time. Miss Gagnon stated that prior to moving to stay with [Child 1], Mr Maddock was paying [Ms A] food and board for [Child 1]; he stopped paying on 11 March 2020. In addition, Miss Gagnon stated that while he paid food and board prior to this date, when she arrived at the house, she had to buy food for [Child 1] because there was no food in the house. Miss Gagnon stated that she also bought a mattress for [Child 1], paid with funds provided by the Salvation Army, which was left at [Ms A]’s house when they moved. She stated that they moved on 27 April 2020. With the help of her caseworker, they found emergency accommodation, because of [Ms A]’s drug use and trying to get [Child 1] to use drugs. Miss Gagnon stated that while Mr Maddock paid for [Child 1]’s Myki, he received a refund for this cost from the school. Mr Maddock stated that Miss Gagnon had made an agreement, which was to be signed by himself, Miss Gagnon, [Ms A] and [Child 1] regarding [Child 1]’s care arrangements but the document was never signed as he was not able to speak to Miss Gagnon.

8.He stated that he organised for [Child 1] to stay with [Ms A] when she returned from [Country 1]. After [Child 1] started living with [Ms A], Miss Gagnon moved there on 1 March 2020. He was paying board and food for [Child 1] to [Ms A] as well meeting other expenses, such as medication. He also took her to medical appointments prior to March 2020 and organised (and paid) to renew her passport and travel costs to stay in [Country 1]. Mr Maddock confirmed that he was reimbursed for the cost of the Myki by the school. Mr Maddock stated that he also set up [Child 1]’s banking so he could give her money for her own expenses. Mr Maddock acknowledged that he stopped paying [Ms A] for board and food on 11 March 2020. He stated that he was under the impression that Miss Gagnon would be making these payments but when [Ms A] told him that Miss Gagnon had not paid, he paid the arrears of board to her.

9.Section 50 of the Act requires a new determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. The evidence before the tribunal is that the percentages of care for [Child 1] have changed from what was recorded on 6 December 2019.

Should the existing care determinations in relation to [Child 1] be revoked?

10.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children. Miss Gagnon notified Centrelink that the care taking place did not correspond with the existing care of [Child 1] from 1 March 2020.

11.In most cases, it is relatively clear whether and to what extent a person is caring for a child. Where the evidence is not as clear, it is open to the tribunal to examine other considerations, such as:

·     To what extent the person has control of the child, including having overall responsibility for the child and making:

-    major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

-    arrangements for others to meet the needs of the child (delegated care).

·     To what extent the person meets 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 the person pays for the costs of meeting the needs of the child.

·     To what extent the person otherwise provides financial support for the child.

·     To what extent the child provides for his or her own needs or has those needs met from another source.

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

12.In this application, the tribunal has determined that it is appropriate to consider the provision of financial support for [Child 1], the arrangements for the care of [Child 1] provided by [Ms A] as organised by Mr Maddock for [Child 1]’s benefit, together with his provision of other care, such as medication and attending medical appointments with [Child 1] from 1 March 2020. While Miss Gagnon was residing with [Child 1] and providing care, her ability to provide care was limited by her financial means at the time and this factor has been taken into account in the determination of the care of [Child 1] for child support purposes. While the tribunal accepts that she was able to take [Child 1] to school as required, the tribunal is not satisfied, based on the oral evidence and documents provided, that Miss Gagnon was providing all of the care for [Child 1] from 1 March 2020. This care, however, does change from 27 April 2020 when Miss Gagnon and [Child 1] leave [Ms A]’s home.

13.The tribunal has accepted that the care did change from 1 March 2020 and has based that care change on Mr Maddock’s and Miss Gagnon’s oral evidence at hearing, in addition to the documents provided to the Department. Accordingly, the determination of care made from 6 December 2019 is revoked from 29 February 2020 and a new determination made from 1 March 2020, which reflects that Miss Gagnon has a percentage of care of 50% for [Child 1] and Mr Maddock has a percentage of care of 50% for [Child 1]. This sets aside the objection decision and changes the care determination from this date.

14.The tribunal notes that both Miss Gagnon and Mr Maddock have confirmed that the care changed again on 27 April 2020. The tribunal notes that a subsequent care determination has been made by the Department from 27 April 2020 and this is the current care determination in place. Therefore, the tribunal’s determination will have limited effect.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Miss Gagnon has a percentage of care of 50% for [Child 1] and Mr Maddock has a percentage of care of 50% for [Child 1] from 1 March 2020.