Goggin and Child Support Registrar (Child support)

Goggin and Child Support Registrar (Child support) [2022] AATA 354 (6 January 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC022162
APPLICANT:  Mr Goggin
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Member H Moreland
DECISION DATE:  6 January 2022
DECISION:

The decision under review is affirmed.

CATCHWORDS

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

Mr Goggin and [Ms A] are the parents of [Child 1]. They are also the parents of [Child 2] and [Child 3] but their care is not the subject of this application for review. Mr Goggin is the parent liable to pay child support.
From 28 November 2016, the Department of Human Services (now Services Australia) – Child Support (Child Support) recorded [Ms A] as having a percentage of care of 66% and Mr Goggin having a percentage of care of 34% for [Child 1].[1]
[1] Child Support papers, p 179.
According to Child Support’s records, on 19 March 2019, Mr Goggin contacted Child Support to say that a change in care had occurred and that [Child 1] had been in his care since January 2019. In that conversation, according to Child Support’s records, Mr Goggin also told Child Support that [Child 1] had been living with a third party. He then clarified that [Child 1] had visited him in [Country 1] and had been living with a friend since returning to Australia.[2]
[2] Child Support papers, pp 5 and 10.
On 5 April 2019, Child Support decided to refuse to reflect the care of [Child 1] as 100% to Mr Goggin and 0% to [Ms A] from 7 March 2019.[3]
[3] Child Support papers, p 4.
On 22 February 2021, Mr Goggin lodged an objection to that decision because, he said, the care of [Child 1] should have been recorded as 0% to him, 0% to [Ms A] and 100% in the care of a third party, [Ms B].[4] On 30 July 2021, Child Support disallowed his objection.[5] On 26 August 2021, Mr Goggin applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of the decision.
[4] Child Support papers, p 4.
[5] Child Support papers, p 4.
The hearing took place on 24 November 2021. Mr Goggin participated in the hearing by telephone and gave sworn evidence. [Ms A] did not participate. In making its decision, the Tribunal considered the documents provided by Child Support (193 pages). The Tribunal also asked Child Support to provide additional information which was received by the Tribunal on 29 November 2019 and provided to Mr Goggin. The Tribunal also deferred its decision to provide Mr Goggin with the opportunity to provide additional evidence to the Tribunal; and for additional information from Child Support and Centrelink to be obtained.

CONSIDERATION

The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).
The Tribunal also referred to the Australian Government’s Child Support Guide (the Guide) in making this decision.[6] The Guide sets out the approach taken by Child Support to its consideration of social security matters. It expresses policy and the Tribunal is not bound by such policy, however, in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, the Full Court of the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the relevant legislation. The Tribunal adopts this approach in the present matter.
[6] there a change in the care of [Child 1]?
1. The Tribunal is required to consider the actual care of [Child 1] during the care period and the care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the Tribunal but the Tribunal has determined that it is appropriate to consider the policy in the circumstances of this matter. The Tribunal considers that, having considered all of the circumstances of this case, an appropriate care period is the 12-month period from 27 January 2019, based on the evidence of the care of [Child 1] as submitted to Child Support and the Tribunal.
10.Mr Goggin told the Tribunal that he believed that since 2019, [Child 1] had been independent and that he believed that the correct care percentage was 0% for him and 0% for [Ms A] because he said, [Child 1] was living with a third party, [Ms B].
11.There is no dispute that in December 2018, [Ms A] decided to move from [Area 1] to [Area 2], as is evident from an email sent by [Ms A] to Mr Goggin and provided to Child Support by Mr Goggin.[7] There is also no dispute that [Child 1] did not want to leave [Area 1], as she wanted to remain at her school, so she moved in with [Ms B]. This is evident from verbal evidence provided to the Tribunal by Mr Goggin, as well as an email written by [Ms A].[8]
[7] Child Support papers, p 142.
[8] Child Support papers, p 41.
12.A copy of an email from [Ms B], dated 7 May 2019, was included in the Child Support papers. It states that from 27 January 2019, [Child 1] had been living at her home and [Ms A] was paying board for [Child 1] to stay there.[9] Based on the Child Support papers, the Tribunal concludes that this arrangement continued until January 2020, when [Child 1] commenced boarding with [Ms A]’s parents.
[9] Child Support papers, p 37.
13.What is in dispute in this matter is how the care of [Child 1] should be apportioned for the period when [Child 1] was boarding with [Ms B].
14.The issue of delegated care typically arises where a child is residing with a non-parent. On the issue of delegated care, the Full Federal Court in Secretary, Department of Social Security v Lowe (1999) 56 ALD 609 noted:
After all, most children will be at school for a large part of each year, and a few may board for weeks or months at some institution, such as a hospital, or a boarding school. Children stay at times with relatives. The delegation of daily care involved in such arrangements need not be regarded as denying the enduring role of a caring parent. While a child is at school, or in hospital, or staying with a relative, the child may remain, in a perfectly intelligible sense, “in the … care” of a parent or parents.
15.Child Support’s policy covering the administration of the child support scheme is contained in the Guide which includes the following at paragraph 2.2.1:
Determining whether care exists
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, CSA will consider whichever of the following are relevant to the particular case.
•To what extent does the person have control of the child, including having overall responsibility for the child and making:
omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities; and
oarrangements for others to meet the needs of the child.
•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?
•To what extent does the person pay for the costs of meeting the needs of the child?
•To what extent does the person otherwise provide financial support for the child?
•To what extent does the child provide for his or her own needs or have those needs met from another source?
•To what extent is the child financially independent or financially supported from another source?
16.The Tribunal then considered these elements outlined in the Guide.
17.According to court orders in relation to the care of [Child 1] and her siblings, dated 16 November 2017, Mr Goggin and [Ms A] were to make all major long-term decisions with regard to the children jointly. The orders also provide for circumstances when Mr Goggin lived in “[Country 1], or anywhere else further than a 35-kilometre radius of [Town 1] in Queensland”, as he did throughout 2019. The orders provide that in such circumstances, [Child 1] was to live with [Ms A].[10]
[10] Child Support papers, pp 129-134.
18.[Ms A] made the following statement in a letter dated 6 April 2021:
My desire was that [Child 1] would have moved to [Town 2] with the family when she was 15 and in Grade 10, I felt she would benefit from the support of her family. Upon [Child 1]’s return from [Country 1], she had telephone conversations with [Mr Goggin] where he agreed she could trial a boarding arrangement with [Ms B’s] family for term one of the school year and then reassess at the end of the first term.
[Mr C] and I would not of agreed to [Child 1] staying at [Area 1] and board with [Ms B’s] family except that [Mr Goggin] said yes to [Child 1] and we felt we were left with no choice. I spoke with [Ms B], and we agreed on $50 a week to cover her meals and internet usage. This was for the school term only as she returned home to us every school holidays.
Primarily her boarding was Monday to Friday as [Child 1] would stay with friends on the weekend or travel to [Town 2] to stay with us. We soon discovered $50 was not enough to cover her costs at [Ms B]’s so from April 2019 I began paying $100 per week during school terms, (See bank transfer details supplied).
In response to [Mr Goggin]’s claim that [Ms B] was making day to day decisions for [Child 1] that is not true. When I contacted [named] High School to explain our situation, they ask could we make [Ms B] a residential guardian on the school’s files as that is where she was residing. In the case of an emergency or regarding fee payment of [Child 1]’s school fees that remained my responsibility and has been for her 6 yrs of High School at [named] High school, (Please see attached communication from the school regarding Billing to myself).
…
I do not see how [Mr Goggin] could think [Ms B] had 100% care of [Child 1] in 2019. [Ms B] was a beautiful support for [Child 1], however [Child 1] only ever boarded with [Ms B’s] family which included accommodation, meals and often taking her with her own children to school. It was still myself who would make the day-to-day decision making eg. even if [Child 1] was unwell it was me she would call and we would make a plan for her recovery and I would contact the school. Further to problem solving moments like sickness, I would communicate via phone calls once to twice a week to plan study, sport and social commitments from week to week. We would also communicate via text messages most days to keep abreast of how she was managing her different priorities.[11]
[11] Child Support papers, pp 151-152.
19.Mr Goggin told the Tribunal that it was not correct that he agreed to [Child 1] boarding with [Ms B’s] Family. He said he didn’t know [Ms B’s] Family, so would not have agreed to such an arrangement. Mr Goggin told the Tribunal that he was opposed to [Child 1] living with [Ms B] and her family because there were teenage boys and overcrowding in the house. He said that while [Child 1] was living there, she had to share not only a room but a bed with her friend and he considered this inappropriate. A contemporaneous record of Mr Goggin’s opposition to [Child 1] living with [Ms B] on the basis of there being teenage boys in the same home can be found in the notes made by Child Support of the 19 March 2019 conversation with Mr Goggin.[12]
[12] Child Support papers, p 10.
20.The email from [Ms B] dated 7 May 2019, states that initially [Ms A] was paying board of $50 per week for [Child 1] but that this was later increased to $100 per week.[13]
[13] Child Support papers, p 37.
21.As shown in an email from [Ms A], and the accompanying evidence, while [Child 1] was boarding with [Ms B], her school costs were being directly paid by [Ms A].[14] School records show that six people were contacts for [Child 1], these included [Mr D], [Ms E], [Ms A], [Mr C], [Mr F] and Mr Goggin.[15] A copy of an email also shows that Mr Goggin sought and received clarification that when [Child 1] was boarding with [Ms B], [Ms B] was made an emergency contact for [Child 1].[16] The Tribunal concludes that this does not necessarily mean that [Ms B] had parental responsibility for [Child 1], merely that if there was an emergency, it would be practical for [Ms B] to be contacted should an emergency in relation to [Child 1]’s school arise, simply because both her parents did not live in the area and she would have day-to-day knowledge as to where [Child 1] was. A record of a conversation with [Ms A] by Child Support shows that [Ms A] said she was the contact for [Child 1] at school and “has a say on her day to day actions with [Ms B], who is classed as her day to day residential guardian”.[17] As noted above, [Ms A] told the Tribunal that this classification of [Ms B] on [Child 1]’s school record was made at the request of the school.
[14] Child Support papers, pp 40-41.
[15] Child Support papers, p 137.
[16] Child Support papers, p 139.
[17] Child Support papers, p 11.
22.Based on the evidence before it, the Tribunal is not satisfied that when [Ms B] agreed to have [Child 1] board in her home, that she agreed to, or did, accept parental responsibility for [Child 1].
23.The Tribunal concludes that the response of [Ms A], to [Child 1]’s stated preference to remain on [Area 1], so her schooling and other aspects of her life, such as her social life and sporting interests, were not disrupted, did not indicate that [Child 1] was an independent adult. Rather, it was simply a response to a teenager expressing their preference. The Tribunal also concludes that there was negotiation between [Ms A] and [Ms B] regarding the boarding arrangements for [Child 1]. The Tribunal is also not satisfied that there was any change in the needs of [Child 1] being met by [Ms A]; it appears that while the day to day care was delegated, there is not sufficient evidence before the Tribunal that there was a change in the support provided by [Ms A], nor Mr Goggin in providing supports such as financial support, clothing, emotional support and supervision of her education. The Tribunal is also not satisfied, based on the evidence before it, that there was a change in the extent to which [Ms A] and Mr Goggin, had control of [Child 1], including overall responsibility and making major decisions about where [Child 1] spent time, her health, education, discipline, recreation and/or social activities.
24.With regard to whether [Child 1] provided for her own needs, had those needs met from another source, or that she was financially independent or financially supported from another source, Mr Goggin told the Tribunal that [Child 1] had been receiving her own Centrelink payments on the basis that she was independent and living away from home. The Tribunal asked Child Support to clarify whether there were any records of [Child 1] receiving Centrelink payments since 1 January 2019. Evidence provided by Child Support and Centrelink confirmed that prior to 5 May 2021, [Child 1] was not in receipt of any payments from Centrelink.
25.The Tribunal notes that, based on the evidence before it, [Ms A] did not dispute that Mr Goggin had a care percentage of 34%. She maintained that [Child 1] was residing with [Ms B’s] Family for the purpose of attending school but that [Child 1]’s weekends and school holidays were shared between her and Mr Goggin as they had been previously.
26.Based on the evidence before it, the Tribunal finds that from 27 January 2019 to 26 January 2020 (the relevant period) there was no change in the percentage of care that [Ms A] had with regard to [Child 1], nor any change in the percentage of care that Mr Goggin had in relation to the care of [Child 1].
27.Mr Goggin provided evidence in relation to potential changes in care at later dates but the Tribunal notes that any such changes would need to be subject to a later review.
DECISION
The decision under review is affirmed.

[2022] AATA 354

6 January 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction