George and Wheatley (Child support)

George and Wheatley (Child support) [2024] AATA 375 (5 January 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026673
APPLICANT:  Miss George
OTHER PARTIES:  Child Support Registrar
Mr Wheatley

TRIBUNAL:Member S Irvine
DECISION DATE: 5 January 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, determines that Miss George had 100% care of [Child 1], and Mr Wheatley had 0% care of [Child 1], from 2 January 2023. Miss George’s new care determination of 100% will apply in the child support assessment from 31 January 2023, and Mr Wheatley’s new care determination of 0% will apply in the child support assessment from 2 January 2023.

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 determination made – date determined as when written notice given to party – 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

Miss George and Mr Wheatley are the parents of [Child 1] born in 2007 and [Child 2] born in 2010. A child support assessment for the children commenced on 31 March 2015. The decision under review relates to the care of [Child 1].
Prior to the decision under review the assessment reflected that [Child 1] was in Miss George’s care for 75% of the time, and in Mr Wheatley’s care for 25% of the time.
On 27 March 2023 Services Australia – Child Support (Child Support) made a decision to revoke the existing percentages of care for [Child 1], and make new care determinations of 70% to Mr Wheatley and 30% to Miss George. The new determinations for both parents applied in the child support assessment from 5 February 2023.
Miss George objected to Child Support’s decision on 11 May 2023, and the objection was disallowed by an objections officer at Child Support on 11 August 2023. Miss George applied to this Tribunal for a review of Child Support’s decision on 28 August 2023.
A hearing was held on 5 January 2024. Miss George attended by telephone and gave sworn evidence. The Tribunal attempted to contact Mr Wheatley on the telephone number recorded for him at the time of the hearing, but Mr Wheatley did not answer the phone. I am satisfied that Mr Wheatley was given proper notice of the date and time of hearing, and on that basis the hearing proceeded in his absence. The Tribunal also had regard to documents submitted by Child Support, folios 1 to 297. Miss George confirmed at hearing that she had received copies of those documents.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).
The issues which arise in this case are:
·      whether the existing percentages of care for [Child 1] should be revoked; and if so
·      what new care determinations should be made for [Child 1]; and
·      the date from which any new decision should apply.

CONSIDERATION

Child Support records reflect that Mr Wheatley had 25% care of [Child 1], and Miss George had 75% care, from 30 June 2022. It appears from the records provided that at the time the original decision under review was made, on 27 March 2023, the care that was reflected in the assessment was 10% to Miss George and 90% to Mr Wheatley, however that care record appears to have been removed at some point prior to the making of the objection decision on 11 August 2023.
On 16 January 2023, Child Support records reflect that Miss George contacted Child Support and reported that Mr Wheatley had had 25% care of [Child 1], and she had had 75% care, from 2 January 2023. On 31 January 2023 Child Support contacted Mr Wheatley to discuss that notification and according to Child Support records Mr Wheatley responded that “… since the child came into his care, she has only been back to mum for 2 nights, he advised she has also had a couple of nights at her boyfriend’s place but definitely not with mum 75% care.”
On 9 February 2023, Child Support records reflect that Mr Wheatley contacted Child Support and notified that [Child 1] was in Miss George’s care for 30% of the time, and in his care for 70% of the time, from 5 February 2023.
At the hearing, Miss George explained that during all of 2022 [Child 1] was living with her but there were difficulties with [Child 1]’s behaviour. She would frequently run away from home and go and stay with friends, and she would have to be brought back. Around the beginning of December 2022 [Child 1] ran away with her then boyfriend, and went to [City 1]. Mr Wheatley had to travel to [City 1] to bring her back.
When [Child 1] returned from [City 1] she didn’t immediately want to go back to Miss George, as she knew she would be in a lot of trouble and she was embarrassed, so she stayed for most of December 2022 with Mr Wheatley. During that period Miss George was still involved in trying to get [Child 1] back into education but she didn’t have overnight care of her.
However, [Child 1] had difficulty living within Mr Wheatley’s household and she returned to live with Miss George on 1 or 2 January 2023. At the time, [Child 1]’s boyfriend was unable to stay with his own mother, who was in the process of moving house, so the boyfriend also stayed with Miss George until he was able to return to his mother’s home.
Since then Miss George said that [Child 1] has only spent two nights in her father’s care. Otherwise she has lived with Miss George, although she spends some nights staying at her boyfriend’s home, and the boyfriend also spends some nights staying at Miss George’s home. Miss George’s evidence is that she has been solely responsible for [Child 1]’s financial support, she provides [Child 1]’s meals and pays for her clothing, toiletries, personal items and other needs, as well as providing accommodation. [Child 1] has a casual job but that money is just for her to spend, Miss George provides for all of her needs.
In relation to the child support decisions, Miss George confirmed that Mr Wheatley had claimed child support from her for [Child 1] in January, and at that time Child Support were unable to contact Miss George and so they made a decision that [Child 1] was in Mr Wheatley’s 90% care. However, she has since objected to that decision and it has been removed. But the 70% decision has stayed in place and Miss George doesn’t understand why.
Miss George acknowledged that in January 2023 she did tell Child Support that she wanted [Child 1]’s care to be reflected as 75% to her and 25% to Mr Wheatley. She said that actually Mr Wheatley was not having any regular care of [Child 1], but at the time she didn’t want him to have to pay too much child support as she knew he didn’t have a job and didn’t have much money, so she was trying to do the right thing. But in fact even before January 2023 Mr Wheatley wasn’t really having any regular care of [Child 1], apart from the few weeks in December 2022.
Miss George said she does not understand why Mr Wheatley would have told Child Support in February 2023 that [Child 1] was in his 70% care. He did that before Child Support had reversed the 90% decision, so she can only assume he was trying to continue to get child support from her. But she said that the notification was not true and [Child 1] was in Miss George’s sole care when that notification was made. In support of her contention, Miss George pointed to a copy of a text message that she had provided to Child Support, where she had texted Mr Wheatley to ask what was going on. The text message reads in part:
I don’t quite understand what you are trying to do regards the children and child support. I had a phone call today telling me i now only have care of the children 30% from what you have told them. How can i afford to care for the children and pay you for not having them.
The response in the text message exchange is:
I’ll change it now
Miss George’s evidence was that this was a message that she sent to Mr Wheatley after she was contacted by Child Support about his care change notification, and that his response acknowledges that the care notification was false.
Miss George said that she has not generally stopped either of her children from spending time with Mr Wheatley, although she believes that if he had participated in the hearing he would say that she stops him from seeing them. She only tells them they can’t go if she has heard that there has been violence or a police incident at Mr Wheatley’s home, or in the case of her younger child [Child 2] she sometimes doesn’t let him go if he has misbehaved, because going to do activities like monster trucks with Mr Wheatley isn’t appropriate when his behaviour has been bad.
In addition to the oral evidence provided by Miss George at hearing, I have considered the supporting evidence she provided to Child Support. This includes:
· A written statement from Miss George’s mother, [Ms A], provided to Child Support on 7 February 2023. Although heavily redacted by Child Support, the statement is consistent with Miss George’s oral evidence that [Child 1] returned to live permanently with Miss George “after Christmas”, and that at the time of writing the statement [Child 1] was yet to return to her father’s to visit. According to the statement [Ms A] resides with Miss George and the children and so is in a position to provide information about [Child 1] living with her mother from her first-hand knowledge.
· The text message exchange between Miss George and Mr Wheatley that Miss George highlighted in her oral evidence. While this is not conclusive as to where [Child 1] was living, it does tend to suggest that Mr Wheatley’s notification to Child Support that Miss George had 30% care of [Child 1] was not reliable.
· A statement I am satisfied with based on the oral evidence provided by Miss George at hearing that [Child 1] was in Miss George’s 100% care from 2 January 2023, and that Mr Wheatley has not had a pattern of care for [Child 1] since that date, and I find accordingly. I note that Miss George’s oral evidence is generally supported by the evidence she provided to Child Support, including the screen shot of the text message. For the purposes of this matter I therefore find that the change of care day, as defined in section 5 of the Act, is 2 January 2023.
I note that Miss George also provided other evidence to Child Support including a written statement signed by [Ms B], who is identified as the mother of [Mr C] [surname redacted], who is in a relationship with [Child 1]; a copy of a work schedule from [Employer 1]; and a written statement from [Ms D] who identifies herself as the sibling of [Child 2] and [Child 1]. In relation to that evidence I find that the statement from [Ms B], while generally corroborative of Miss George’s oral evidence, does not speak directly to whether [Child 1] spent any time in her father’s care (and [Ms B] may not be in a position to make any comment about that in any event). The work schedule from [Employer 1] similarly does not in itself tend to prove whether [Child 1] was spending any time in Mr Wheatley’s care. In relation to the statement from [Ms D], I have placed little weight on that. While there is no prohibition on Miss George’s daughter providing written evidence to the Tribunal, there is an inherent risk that a child of one of the parties may feel pressure to support their parent, even if it is not the intention of the parent to apply any pressure.
I note that there is no corroborating evidence provided by Mr Wheatley to support his contention that he had care of [Child 1] for 70% of the time, either to Child Support or to the Tribunal.
I am satisfied on the basis of the oral evidence provided by Miss George, as well as the corroborating evidence outlined above, that Miss George had 100% care of [Child 1] from 2 January 2023, and I find that 2 January 2023 is the relevant change of care day as defined in section 5 of the Act.
Miss George contacted Child Support about care of [Child 1] on 16 January 2023, but at that time she advised that the pattern of care for [Child 1] had continued to be 75% to herself and 25% to Mr Wheatley. I am satisfied that the first notification to Child Support after 2 January 2023 that indicated that the care of [Child 1] was different to the pre-existing pattern of 75% to Miss George and 25% to Mr Wheatley was on 31 January 2023, when, according to the documentation provided by Child Support, Child Support spoke with Mr Wheatley and Mr Wheatley advised that Miss George did not have 75% care. I therefore find that the first day the Child Support Registrar became aware that the care for [Child 1] was not in accordance with the existing care determinations of 75% to Miss George and 25% to Mr Wheatley was 31 January 2023.
Sections 49 and 50 of the Act provide that determinations of the percentages of care for a child must be made in certain circumstances, including relevantly where an existing care determination for a child has been revoked. I must therefore first consider whether the existing care percentages for [Child 1] of 75% to Miss George and 25% to Mr Wheatley are to be revoked.
Subsection 54F(1) of the Act sets out circumstances in which a determination of a percentage of care must be revoked. Specifically, a determination must be revoked pursuant to section 54F if:
· the care of the child that is actually taking place does not correspond with a parent’s existing percentage of care for the child;
· a new care determination corresponding with the parent’s actual care would change that parent’s “cost percentage” for the child;
· section 54G does not apply; and
· subsection 54F(2) applies.
In this matter I have found that Miss George had 100% care of [Child 1], and Mr Wheatley had no pattern of care, from 2 January 2023. I am satisfied that if new care percentages corresponding with each parent’s actual care were made, they would change the cost percentages for [Child 1] in accordance with section 55C of the Act.
Section 54G of the Act applies if, relevantly:
· one parent has had no care or less than regular care of the child despite the other parent making the child available to the first parent; and
· the other parent notifies the Registrar that the first parent has had no or less than regular care of the child within a period that the Registrar considers is reasonable in the circumstances.
In this case, Miss George’s evidence was that she knew when she contacted Child Support in January 2023 that Mr Wheatley was having no care of [Child 1], but she nevertheless notified that his care was 25%. While this was done with good intentions, I cannot find that Miss George notified Child Support within a period that is reasonable in the circumstances that Mr Wheatley had no care of [Child 1], and so I find that section 54G of the Act does not apply. I am also satisfied that subsection 54F(2) of the Act applies.
As all the conditions set out in subsection 54F(1) of the Act apply, the existing care determinations must be revoked, and therefore new care determinations must be made for [Child 1] in accordance with the actual care that has occurred. Pursuant to section 49 of the Act I find that Mr Wheatley has no pattern of care for [Child 1] from 2 January 2023, so the care determined for Mr Wheatley in relation to [Child 1] is 0%. Pursuant to section 50 of the Act I find that Miss George had a pattern of care of 100% for [Child 1] from 2 January 2023, and the care determined for her in relation to [Child 1] is therefore 100%.
Paragraph 54F(3)(b) of the Act provides that if Child Support becomes aware that the actual care of the child is different to the existing care determinations more than 28 days after the change of care day, the existing determinations are revoked:
· for the parent whose care has increased, at the end of the day before the day Child Support became aware; and
· for the parent whose care has decreased, at the end of the day before the change of care day.
Section 54B of the Act provides relevantly that the new care determination for each parent applies in the child support assessment from the day after the previous determination is revoked.
I have found that the change in care day in this matter is 2 January 2023, and the day the Child Support Registrar became aware is 31 January 2023, which is more than 28 days after the change of care day (although only barely). This means that Miss George’s new care percentage of 100% will apply from 31 January 2023, and Mr Wheatley’s new care percentage of 0% will apply from 2 January 2023.

Date of effect of the Tribunal’s decision

Section 87AA of the Registration Act provides relevantly that if a person lodges an objection to a care percentage decision, and the objection is lodged more than 28 days after notice of the care percentage decision was served on that person, and the outcome of the objection decision is to allow the objection in a way that has the effect of varying the care determination or substituting a new care determination, then the date of effect of the review decision is the day on which the person lodged the objection.
In this matter, the original care decision made by Child Support was notified in a letter dated 27 March 2023. I am satisfied on the basis of the documentary evidence provided by Child Support that the notice of that decision was printed and posted to Miss George.
In determining the day on which Miss George was served with the notice of the decision I have considered sections 160 and 163 of the Evidence Act 1995 (the Evidence Act). Section 163 of the Evidence Act provides that a letter from a Commonwealth agency addressed to a person at a specified address is presumed to have been sent by pre-paid post to that address on the fifth business day after the date the letter was prepared. Section 160 provides that a postal article sent by pre-paid post addressed to a person at a specified address was received at that address on the seventh working day after having been posted. Applying those presumptions, I find that Miss George was served with a copy of the decision on 14 April 2023, and that she therefore had until 12 May 2023 to lodge her objection within 28 days of the day she was served with a notice of the decision.
According to the documents provided by Child Support Miss George lodged her objection on 11 May 2023. I therefore find that Miss George lodged her objection within 28 days of the day notice of the decision was served on her, and section 87AA of the Registration Act does not apply.

DECISION

[2024] AATA 375

5 January 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Judicial Review

Procedural Fairness