Gilmour and Gilmour (Child support)

Gilmour and Gilmour (Child support) [2018] AATA 4983 (4 December 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC015004
APPLICANT:  Ms Gilmour
OTHER PARTIES:  Child Support Registrar
Mr Gilmour

TRIBUNAL:Member Y Webb
DECISION DATE: 04 December 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there is no change of care from 1 May 2018 and that the pre-existing care percentages of 50% to Ms Gilmour and 50% to Mr Gilmour are retained and continue to apply.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the pattern of care - 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

This review is about the percentages of care of Ms Gilmour and Mr Gilmour in relation to their child (“the child”) from 1 May 2018.
The child is 16 years old. A child support assessment has been in place in relation to the care of the child since August 2012, collectable by the Department of Human Services (“Child Support Agency”) since 21 March 2018.
There are court orders from the Federal Magistrates Court of Australia in relation to the care of the child dated 20 July 2012. It is not disputed by the parents that the court orders provided that Ms Gilmour had 67% care of the child (243 nights per annum) and Mr Gilmour had 33% care (122 nights per annum).
In a separate decision made on 4 December 2018 the Administrative Appeals Tribunal has decided – affirming a decision of an objections officer of the Child Support Agency – that the care percentages for the child were 50% to each of the parents from 2 February 2018 (with a date of effect of 21 March 2018).
On 8 May 2018 Mr Gilmour contacted the Child Support Agency to advise that the care of the child had changed from 1 May 2018. He asserted that the child was now spending two nights per fortnight in Ms Gilmour’s care. He submitted a care details form stating that Ms Gilmour’s care of the child was 14% and his care was 86%.
Ms Gilmour disputed the care change. She maintained that Mr Gilmour’s care was approximately consistent with the court orders; that is, that her percentage of care was around 67% and Mr Gilmour’s percentage of care around 33%.
On 28 June 2018 the Child Support Agency rejected the care change. It decided that a new pattern of care had not been sufficiently established and the existing care percentage of 50% to each of the parents was retained.
On 29 June 2018 Mr Gilmour objected to that decision and on 28 August 2018 his objection was allowed and the objections officer decided that the care of the child was 98% to Mr Gilmour and 2% to Ms Gilmour from 1 May 2018.
On 10 September 2018 Ms Gilmour applied for review by the Administrative Appeals Tribunal.
Ms Gilmour attended the hearing on 4 December 2018 by way of a telephone conference and gave evidence on affirmation. Mr Gilmour also attended the hearing by way of a telephone conference and gave sworn evidence.
The Tribunal had regard to all of the documents from the Child Support Agency (marked as C-1 Exhibits (pages 1-314) and C-2 Exhibits (page 315-350). Ms Gilmour provided additional documents marked A1 to A28. Mr Gilmour also provided additional documents marked B1 to B25. All of these documents have been considered by the Tribunal.

ISSUES

The issues for the Tribunal to determine are:
a) What were the actual care arrangements in relation to 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 under the new determination and from when should it apply?

CONSIDERATION

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) Act1988 (the Registration and Collection Act).
Amendments to the Assessment Act and the Registration and Collection Act were made effective from 23 May 2018 and 1 July 2018 respectively but this matter predates those amendments and the legislation as it was prior to those dates applies.
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. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.
The pattern can be established either according to a ‘care arrangement’ (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).
In this case court orders exist but Mr Gilmour asserts that they were only ever followed until the child was 13 years old[1] and Ms Gilmour has advised that during the whole of 2017 Mr Gilmour had only five nights of care.[2] On 14 February 2018 Ms Gilmour told the Child Support Agency that she believed there was agreement between herself and Mr Gilmour that care should revert to the 2012 court orders.[3] As a result, the Child Support Agency updated its records and recorded that from 1 January 2017 to 31 December 2017 Ms Gilmour had 90% care of the child and Mr Gilmour 10% care and that from 1 January 2018 Ms Gilmour had 67% care of the child and Mr Gilmour 33% care. Since that time, a further decision has been made that the care of the child was 50% to each of the parents from 2 February 2018.
[1] B1
[2] A23
[3] C1-30
In this case, the Tribunal is required to consider the actual care during the care period. 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 reflecting the actual care that a person has, or is likely to have, during the care period.
Section 54A then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.
In this case, Ms Gilmour and Mr Gilmour did not contend that nights were an unsuitable measure of the care that they were providing to their child and the evidence in the Child Support Agency papers indicates that nights have been the measure of care to date. The Tribunal finds that nights are an appropriate method of ascertaining the actual care of the child in this case.
Hence, the Tribunal must form a view as to the likely pattern of care from the date that the care changed (if it did) and that may or may not be informed by care prior, or after, that date.

Mr Gilmour’s contentions and evidence

Mr Gilmour was the parent who contacted the Child Support Agency on 8 May 2018 and advised that the care of the child had changed since 1 May 2018.
He stated that the child was only in Ms Gilmour’s care for two nights per fortnight and that all remaining nights were with him.[4]
[4] C1-80
On 31 May 2018 Mr Gilmour provided a care details form to Centrelink in which he claimed that his care was 86% and Ms Gilmour’s was 14% from 19 April 2018.
When Mr Gilmour’s care change claim was refused on 28 June 2018 due to lack of sufficient evidence to support an ongoing pattern of care[5] he lodged an objection on 29 June 2018.
[5] C1-158
In support of his objection, Mr Gilmour provided a written submission including rebuttal of some of the evidence provided by Ms Gilmour.[6]
[6] B docs
Mr Gilmour provided some third party evidence in support of his contentions regarding care of the child. He provided a letter from the Deputy Principal of the child’s school dated [in] June 2018 confirming that the school’s records “indicate that [child’s name] resides with his father Mr Gilmour at [an address[”.[7] Mr Gilmour also provided the covering email from the school to which the letter was attached.[8]
[7] B24 and C1-122
[8] B23
In addition, Mr Gilmour provided a letter from [Ms A] dated [in] July 2018. [Ms A] is Mr Gilmour’s legal adviser and also a personal friend.[9] She claimed to be “aware that Ms Gilmour agreed that [child’s name] should live with Mr Gilmour …full-time …from February 2018”. She stated that once Ms Gilmour moved to [a suburb] “.initially [child’s name] remained in Mr Gilmour’s care on a full-time basis however stayed with his mother a couple of nights per week”.[10]
[9] C1-215
[10] C1-216
In addition, Mr Gilmour provided on 23 July 2018 a copy of the child’s Learner Driver Licence which showed Mr Gilmour’s address and the date of 17 July 2023 as the expiry date.[11]
[11] C1-219
In addition, on 5 July 2018 Mr Gilmour provided a care calendar showing that in April 2018 Mr Gilmour had 24 nights of care; in May 2018 Mr Gilmour had 30 nights of care and that in June 2018 Mr Gilmour had 29 nights of care.[12]
[12] C1-173-174
On 5 July 2018 Mr Gilmour also provided an email from [Ms B] who stated that she had started her friendship with Mr Gilmour on 4 May 2018 and has been his partner since 20 May 2018 and that the child “has always lived with his father on a full-time basis and visits his mother for a few hours per week”.[13] [Ms B] also provided a second email in which she stated that she “currently stays at [Mr Gilmour] and [the child’s] apartment several nights a week and know[s] that [the child] resides with his father on a full-time basis. [The child] normally goes and sees his mum on a Thursday night for a couple of hours but returns back to his father’s place on the same day”.[14]
[13] C1-175
[14] C1-137
Mr Gilmour also provided on 5 July 2018 a letter from the [Bank] dated [in] July 2018 confirming that the child had opened a bank account [in] April 2018 and the account address was recorded as Mr Gilmour’s address.[15]
[15] C1-175
Mr Gilmour also provided a letter dated [in] May 2018 from his former de facto partner, [Ms C]. She stated that she was the partner of Mr Gilmour from [December] 2017 to [April] 2018 until Mr Gilmour moved to [a suburb]. She stated that the child resided with them for 12 days in February (2-7 (inclusive), 9, 10, 13, 20, 27 and 28); 14 days in March (5-15 inclusive, 17, 18, and 22); 14 days up to 18 April (1-4 inclusive, 9-18 inclusive). She stated that from 19 April 2018 the child commenced living with Mr Gilmour on a near full-time basis, spending time with his mother “every second weekend on a Saturday and Sunday night”. She stated that to the best of her knowledge this is still the current situation.[16]
[16] B14
Mr Gilmour also provided some additional information which was not directly relevant to the issues in this case.

Ms Gilmour’s contentions and evidence

Ms Gilmour denied that her care changed to 2% and Mr Gilmour’s to 98% from 1 May 2018. She also denied that her care had changed to 14% from 19 April 2018 as Mr Gilmour had advised Centrelink. She stated in her letter to the Child Support Agency of 8 July 2018 that since she moved with the child to [a suburb] in March 2018 “our arrangements have been flexible in terms of what specific nights or days [the child] would spend with each parent”. Ms Gilmour stated that she “had not kept a diary of the exact days or nights that [the child] has been in my care in 2018 as I didn’t think it was necessary”.[17]
[17] C1-182
Ms Gilmour acknowledged that Mr Gilmour enrolled the child in school in [a suburb] in March 2018 “and when he did he gave my address as [the child’s] permanent address”.
The Child Support Agency records provide that on 24 May 2018 Ms Gilmour stated that “the care is not really occurring as per the CO however this is the care level she advised should remain in place”.[18]
[18] C1-40
Ms Gilmour provided a written submission in support of her claims.[19] She reiterated her statements that from February 2018 Mr Gilmour’s care of the child increased but she stated that she was contrasting the increased care with the fact that Mr Gilmour had no care of the child in 2017. She stated that the care from February 2018 reverted to the court ordered care. Ms Gilmour told the Child Support Agency on 24 August 2018 that since around the end of May 2018 the child “has pretty much gone between the two of them as he has wanted to. believes the care would be roughly 60% to 70% to her.”[20]
[19] A-23 – A27
[20] C1-229
Ms Gilmour rebutted some of Mr Gilmour’s third party evidence. She also stated that Samantha was overseas from 17 April 2018 and so was not in a position to know with whom the child was residing after 16 April 2018.
Ms Gilmour also rebutted the statements made by [Ms A], Mr Gilmour’s legal adviser, predominantly on the basis that [Ms A] could not provide first-hand information about where the child was residing or about a number of the details about the child’s care to which [Ms A] attests.
Ms Gilmour provided a care calendar compiled from diary notes, her Facebook posts, photos, messages and cross referencing this information with friends and family members.[21]
[21] A4
Ms Gilmour provided letters from a number of third parties including [Ms D] (a former wife of Mr Gilmour) whose evidence, in relation to care, related to a period prior to 2018.[22]
[22] A1
Ms Gilmour also provided two letters from [Ms C]: one dated [in] September 2018 was identical to the letter (in terms of dates of care) that [Ms C] provided to Mr Gilmour (but with two other paragraphs deleted).[23] The other letter from [Ms C] was dated [in] December 2018. In that letter [Ms C] stated that she was in [another country] from [a date in] April 2018 and had no first-hand knowledge of any dates that the child spent with Mr Gilmour after that date.[24]
[23] A2
[24] A28
Ms Gilmour also provided text message exchanges between herself and the child purporting to support a finding that Ms Gilmour had overnight care of the child in accordance with the court orders.[25]
[25] C1-193-203
Ms Gilmour also provided two letters from the child’s school. The first from the Deputy Principal dated [in] June 2017 stated that according to the school’s records the child’s residential address was Ms Gilmour’s address.[26] The second also from the Deputy Principal dated [in] July 2018 stated that the school’s records confirmed that the child’s current address was Ms Gilmour’s address and that the child’s address had remained as the mother’s address during his enrolment at the school.[27]
[26] C1-204
[27] A5
Ms Gilmour provided a letter dated [in] October 2018 from [a] Real Estate confirming that Ms Gilmour and the child have been resident tenants at Ms Gilmour’s address since their lease started on 5 March 2018.[28] Ms Gilmour also provided a rent certificate which named the child as a person with whom Ms Gilmour was sharing accommodation dated 14 March 2018.[29]
[28] A7
[29] C1-191-192
In addition, Ms Gilmour provided multiple third party statements from friends and from the child’s adult older brother. These included from [a witness] who stated that she had visited Ms Gilmour’s home and she “could see that her 3-bedroom apartment was set up for her children to live there”.[30]
[30] A8
Ms Gilmour also provided a letter from [Ms E] dated [in] September 2018 in which [Ms E] stated that “during my visits [the child] has not once mentioned that he wanted to or had moved to live with his father or that he no longer lived with his mother”. She stated that she “believes that [the child] lives with Ms Gilmour and his older brother …during the week, and visits Mr Gilmour on odd days or weekends when he is not busy with his friends, work, or other activities. I know this because I have spoken with [child’s name] about it”.[31]
[31] A9-A10
Ms Gilmour also provided a letter dated [in] September 2018 from [Ms F] who is Ms Gilmour’s sister and who lives overseas. She stated that she and Ms Gilmour Skype weekly and that “often when talking with Ms Gilmour (she) can see and hear the boys in the background”. She stated that she knows that the child has been living mainly with Ms Gilmour since the move to [a suburb], because she has spoken with the child and with his brother about it.[32]
[32] A11-A12
Ms Gilmour also provided a letter dated [in] September 2018 from [Ms G]. She stated that the child ”has lived with Ms Gilmour since her move to [a suburb] and visits his father but does not live with Mr Gilmour permanently”. She stated that she knows this because “Ms Gilmour and I catch up often and I have visited her in [her home]”.[33]
[33] A13
Ms Gilmour also provided a letter dated [in] October 2018 from [Mr H], a neighbour of Ms Gilmour. He stated that he has spent a lot of time in Ms Gilmour’s apartment and with Ms Gilmour and her children and that he has a clear view of the balcony of Ms Gilmour’s apartment. He stated that he knows that the child sees his father occasionally. He stated that he has spoken with the child many times and the child “has never made any comments about wanting to live with his father”.[34]
[34] A14
Ms Gilmour also provided two emails from [a] solicitor who previously represented Ms Gilmour. Her emails did not relate to the care of the child.[35]
[35] A21-A22
Ms Gilmour also provided a letter dated [in] July 2018 from [another witness] who stated they have visited Ms Gilmour and the boys “a few times in 2018…and nothing I’ve seen makes me think that [the child] does not live with in a similar way as before. [The child] has never mentioned to me that he no longer lives with his mum. He has his own room…and I have not noticed any changes in the care of [the child]”.[36]
[36] C1-183
Ms Gilmour also provided a letter from Ross dated 2 July 2018. He stated that “I can assure you that I have seen nothing to tell me that anything has changed as far as who [the child] lives with and who as a parent has the main responsibility of looking after [the child].”[37]
[37] C1-185
Ms Gilmour also provided some additional information which was not directly relevant to the issues in this case.

The Tribunal’s consideration

Both parties provided copious documentation and third party statements but the information provided was of limited assistance to the Tribunal either because it was not relevant to the issue of the actual care of the child or else the person had not witnessed the actual care over the period in question from 1 May 2018.
While the Tribunal accepts that the letters from the child’s school are contradictory, none of them in any event prove where the child was residing from 1 May 2018. The same is true of the Learner Driver Licence, Commonwealth Bank account address and the letter from [the] Real Estate.
While the Tribunal acknowledges that the third party statements from both parties were written in good faith and represent those persons’ genuine beliefs about the care situation the only third parties who were in a position to witness the actual care on an ongoing basis from 1 May 2018 were the child’s older brother, [Mr J]; to some extent [Ms B]; and the parents themselves.

The evidence is contradictory with [Mr J] supporting his and the child’s mother and [Ms B] supporting Mr Gilmour. The letter from [Mr J], the child’s adult brother attests that the child stayed with Mr Gilmour for a two-week period when they were in the middle of moving house but apart from that “he has been spending most weeknights at home and every second weekend or so with Mr Gilmour.” [Mr J] goes on to state that “recently I have noticed that [the child] has been asking to spend more time on weekends with his dad”. He states that “in any case [he] can testify that [the child] still mostly lives with us”. While the Tribunal accepts that the statement from [Mr J] is genuinely made, it is vague in relation to actual dates of care. It tends to infer that Mr Gilmour’s care was increasing over time.
Likewise [Ms B’s] statement is somewhat vague other than the reference to the child visiting his mother on Thursday evenings. It is not clear from her statement whether she is living full-time with Mr Gilmour or not.
Neither [Mr J] nor [Ms B’s] statements are persuasive of a change of care.
There is essentially no common ground between the parents and their statements are unable to be reconciled. In addition, the Tribunal considered the care calendars of both parents. Mr Gilmour’s care calendar records that he had care of the child for 24 nights in April 2018; 30 nights in May 2018; and 29 nights in June 2018.
Ms Gilmour in her care calendar claimed Mr Gilmour had 12 nights of care in April 2018; 10 nights in May 2018; and seven nights in June 2018.
The Tribunal is concerned that these records of care are so startlingly different that it is impossible to describe the discrepancy as inadvertent or minor.
The Tribunal did not consider that the evidence provided by either parent was reliable. Both accused the other of not being truthful and both alleged the other was motivated by money: Mr Gilmour alleged that Ms Gilmour wished to preserve her family tax benefit entitlements (despite a reduction in her care of the child) and Ms Gilmour alleged that Mr Gilmour was attempting to reduce his child support liability to a former wife by claiming increased care of his and Ms Gilmour’s child. The Tribunal found that neither parent’s evidence was convincing.
Taking all of the information and submissions into account the Tribunal finds that the evidence is not sufficiently compelling to justify a change of care determination. Hence, the Tribunal finds that there is no care change and that the pre-existing care of 50% to each of the parents from 2 February 2018 is retained and is ongoing.

67.The cost percentage remains unchanged. As the Tribunal has found that there is no change in the care percentage from 1 May 2018, the existing care determination of 50% to each of the parents is not revoked and the child support assessment is not amended.
DECISION

[2018] AATA 4983

4 December 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction