Gill and Crabbe (Child support)

[2018] AATA 2409

Gill and Crabbe (Child support) [2018] AATA 2409 (19 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013721

APPLICANT:  Mr Gill

OTHER PARTIES:  Child Support Registrar

Ms Crabbe

TRIBUNAL:Member K Timbs

DECISION DATE:  19 June 2018

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS
Child support - Percentages of care - Whether there was a change to the pattern of care - Refusal to revoke the existing percentage 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. Mr Gill and Ms Crabbe are the parents of [Child 1] (born August 2000).  At relevant times, the Department of Human Services made child support assessments for him on behalf of the Child Support Registrar.  Mr Gill is the parent liable to pay child support.

2. In March 2017, the Department used care percentages in the assessment of 0% for Mr Gill and 100% for Ms Crabbe.  On 12 June 2017, the Department changed Ms Crabbe’s care percentage to 0% from 14 April 2017.  However, on 30 January 2018, an Objections Officer of the Department allowed Ms Crabbe’s objection to that decision and decided not to change her care percentage.

3. On 19 March 2018, Mr Gill applied for review of the Objections Officer’s decision.  The Tribunal heard the application for review on 19 June 2018.

ISSUES

1. The Registrar makes child support assessments using a formula in the Child Support (Assessment) Act 1989.  The elements of the formula include care percentages for each parent for each child in the assessment.

2. The Registrar determines care percentages that correspond with the actual care a parent has for a child during a care period (section 50).  The care percentage must be 0% if the parent has no pattern of care for a child (section 49).  The Registrar must revoke care percentage in the circumstances set out in sections 54F and 54G (discussed below).

3. To deal with Mr Gill’s application for review, the Tribunal considered whether those sections applied to Ms Crabbe’s care percentage in April 2017 when Mr Gill notified the Department of a change in her pattern of care for [Child 1].

CONSIDERATION

Evidence considered

1. The Tribunal considered documents relevant to the decision under review provided by the Department and by Mr Gill.  He gave evidence at hearing.

Revocation of care percentage

1. Mr Gill said [Child 1] was living at Ms Crabbe’s  home in early March 2017 with his girlfriend,[Ms A].  He said he spoke to both [Child 1] and Ms Crabbe in early April 2017 and they told him [Child 1] and [Ms A] had moved to [Ms A]’s sister’s home because of an argument with Ms Crabbe.  Mr Gill provided an SMS message from Ms Crabbe sent in June 2017 confirming [Child 1] was living with [Ms A] at her sister’s home.

2. Mr Gill more recently contacted [Ms A].  He provided text messages confirming they lived with her sister from March 2017.  [Ms A] also told him they moved back in about September 2017 for two or three months and that, from then, he has lived with her sister or Ms Crabbe’s sister.

3. In her text message in June 2017, Ms Crabbe told Mr Gill that she continued to care for [Child 1].  She said he was at her home every day and that she paid his board to [Ms A]’s sister.  In September 2017, she told the Department [Child 1] was living with her and that he was still at school and relied on her financially.  The Objections Officer found it was consistent with information from Centrelink that [Child 1] did not receive any income support.  The Tribunal finds that it is also consistent with the information from [Ms A] about their living arrangements in September 2017.

4. Mr Gill lives in [State 1] and [Child 1] and Ms Crabbe live in [State 2].  Mr Gill said he was in contact with [Child 1] by telephone until a few months ago.  However, he did not suggest the contact was so regular that he was aware of his day-to-day activities in March or April 2017.  He said he did not know if [Child 1] went to Ms Crabbe’s home each day in June 2017.  He firstly said it was unlikely because they had an argument.  However, he did not disagree when the Tribunal suggested that was not the case because the argument was several months earlier.  In the absence of evidence to the contrary, the Tribunal accepts Ms Crabbe’s assertion that she was on good terms and in very regular contact with [Child 1] by June 2017.

5. Mr Gill said he did not know if Ms Crabbe was supporting [Child 1] when he moved with [Ms A] to her sister’s home.  The Tribunal suggested it was likely because he was still at school and Centrelink did not pay him income support.  He said his experience is that [Child 1] does not regularly attend school and that his family members have told him [Child 1] was [committing an illegal activity].  He said that means he might have supported himself rather than relying on Ms Crabbe.  The Tribunal pressed him about whether his information was reliable and he said he and Ms Crabbe are from the same [Ethnic] community and his family members know who [commit the same illegal activity] in that community.  That might be the case but his evidence is second hand and lacks detail.  The Tribunal gives it little weight and it is not satisfied [Child 1] was financially independent from Ms Crabbe at any relevant time.

6. Finally, Mr Gill could not say that Ms Crabbe was not involved in his day-to-day care.  For example, he said he did not know who would have talked to the school if there was a problem or taken him to any necessary medical appointments.

7. The Registrar’s policy is set out in the Child Support Guide (at  It provides particular guidance for decisions makers about ‘Older children living away from home’ at chapter 2.2:

   Generally, older children who live independently and separately from their parents or carers provide for many of their own needs.  This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues.  Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

   Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child.  The support can be in relation to daily costs such as food, accommodation and transport, and/or longer-term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

   While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant.  In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

8. In this case, [Child 1] was not living independently and caring for himself at any time.  It might be that he and [Ms A] moved from the care of one relative to the care of another when he moved to live with [Ms A]’s sister.  However, in the absence of evidence to the contrary, the Tribunal accepts Ms Crabbe’s assertion that she paid for his board while he continued to attend school (whether regularly or otherwise).  In the Tribunal’s view, it is not unlikely they remained in contact despite the argument and it accepts he regularly spent time with him at her home by June 2017.  She might, or might not, have been responsible for decisions about matters such as schooling or health.  However, it appears she maintained a parental relationship and the Tribunal infers she monitored his welfare and influenced any decisions he had to make.  On balance, it finds, by June 2017, she had a pattern of care for [Child 1] that was consistent with her care percentage of 100%.

9. There might have been a period of estrangement between Ms Crabbe and [Child 1] following the argument in March 2017.  If so, the Tribunal has no evidence that it was lengthy and, given they had reconciled by June 2017, is not satisfied that it interrupted her pattern of caring for him in any significant way.

10. Section 54G does not apply unless Ms Crabbe ceased to have a pattern of care for [Child 1].  The Tribunal finds that is not the case on the evidence available.  Section 54F does not apply unless Ms Crabbe’s actual pattern of care no longer corresponded with her care percentage.  The Tribunal is not satisfied that was the case in March or April 2017 on the evidence available.  It follows the Registrar may not revoke Ms Crabbe’s care percentage.  The Tribunal will affirm the decision under review not to change the care percentages for that reason.

DECISION

The Tribunal affirms the decision under review.