Golding and Scobie (Child support)
[2024] ARTA 204
•7 November 2024
Golding and Scobie (Child support) [2024] ARTA 204 (7 November 2024)
Applicant/s: Mr Golding
Respondent: Child Support Registrar
Other Parties: Ms Scobie
Tribunal Number: 2024/BC028155
Tribunal: General Member A Ryding
Place:Sydney
Date:7 November 2024
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
CHILD SUPPORT – change to the pattern of care – existing percentage of care determinations revoked – date of effect – decision under review affirmed
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision of Services Australia – Child Support (Child Support) regarding the percentage of care attributable to each of the parents in this matter. For the reasons set out below, the Tribunal will only consider care for the short period of 4 May 2023 to 9 June 2023.
The applicant, Mr Golding, and one of the other parties to this application, Ms Scobie, are the parents of three children, [Child 1], [Child 2] and [Child 3]. The present application relates to [Child 2] (born [in] August 2006, and therefore now 18).
Mr Golding and Ms Scobie have had a registered child support case since 5 June 2006, registered for collection by Child Support from 24 August 2022.
From 25 October 2019, care of [Child 2] had been recorded as 49% to Mr Golding and 51% to Ms Scobie. On 30 May 2023, Ms Scobie reported a change in care for [Child 2], that care would be 100% with her from 30 April 2023. Ms Scobie reported a change in care to 100% to her again on 22 June 2023, but this time said care changed on 1 May 2023.
On 4 September 2023, Child Support revoked the pre-existing care decision and made a new care decision to reflect care as 0% to Mr Golding and 50% to Ms Scobie from 26 May 2023, notified on 19 June 2023 (folio 164). This was apparently a correction of a previous decision made on 26 May 2023 (but made in error) to reflect care as 50% to Mr Golding and 0% to Ms Scobie from 26 May 2023, notified on 19 June 2023 (folio 135). It is unclear on the evidence before the Tribunal where Child Support took the date of 19 June 2023 from.
On 26 September 2023, Ms Scobie objected to the care decision dated 4 September 2023. On 2 June 2024, Child Support provided its objection decision (the Objection Decision) allowing in part Ms Scobie’s objection (folio 27). Care was reflected as 0% to Mr Golding and 100% to Ms Scobie from 4 May 2023, notified on 30 May 2023.
The objections officer noted that there was a further pending disputed care change for [Child 2], to reflect 0% care to both parents from 10 June 2023. The parties told the Tribunal that a decision had been made, Ms Scobie had objected to it, and was awaiting a decision on that objection. From documents provided by Child Support after the hearing on 6 November 2024, a decision to reflect the care at 0% to both parties was made by Child Support on 17 June 2024 (folio C5), which brought the child support assessment to an end. However as the notification of the care change was made on 1 May 2024, more than 28 days after the change in care, it did not take effect until the date the care change was notified, that is, 1 May 2024. At some point after the care decision, Ms Scobie lodged an objection but that is not in the papers. The Tribunal understands from Child Support that the objection has yet to be decided by Child Support.
On 26 June 2024, Mr Golding applied to the Tribunal for review of the Objection Decision. His application stated (verbatim):
My ex wife and I had 50% care of our three children [Child 1], [Child 2] and [Child 3] leading up to an incident in early May 2023 at our residence where we said until resolved the children will stay with their mother. This dispute relates to [Child 2]. [Child 2] was in the care of her mother for 50% in the month of May 2023 only as she was not in residence much. Since June 2023 [Child 2] was residing at a 3rd parties residential address in [Suburb 1] from June 2023 to May 2024. Neither [Ms Scobie] or myself had 100% care of [Child 2] as she was living independently with her partner and family. We disagree with the ruling that [Ms Scobie] has 100% or even 50% care of [Child 2] during the time from 1st June 2023 to present. Please refer to attached documents
On 9 October 2024, the Tribunal conducted a hearing in this matter by MS Teams audio. Mr Golding and Ms Scobie participated, Child Support did not participate and instead relied upon its documents. The Tribunal had hearing papers supplied by Child Support, numbered 1 to 378, documents provided by Mr Golding numbered A1 to A5, and documents provided by Ms Scobie marked B1 to B163 (together, the hearing papers). Mr Golding provided evidence on affirmation and Ms Scobie on oath.
Noting the reference to a pending care change from 10 June 2023, the Tribunal asked Child Support to provide further documents relating to that care change, pursuant to section 26 of the Administrative Review Tribunal Act 2024. The documents provided by Child Support on 6 November 2024 in response are marked C1 to C15. The Tribunal made its decision on 7 November 2024.
The Tribunal has had regard to all of the documents provided to it and the evidence provided by Mr Golding and Ms Scobie. Reference below is made only to the documents and evidence relevant to this decision.
ISSUES
The child support scheme is intended to assist separated parents to take responsibility for the financial support of their children. It recognises that parents have a primary duty to maintain their children.[1] How child support is assessed by Child Support and provided by parents is governed by the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).
[1] Section 3 of the Assessment Act.
The issues for consideration in this application are:
· Has there been a change in care? If so, what are the new percentages of care?
· From when should the existing percentages be revoked (if at all) and from when do the new percentages apply?
CONSIDERATION
Part 5 of the Assessment Act sets out the way in which the annual rate of child support payable by a parent for a child for each day in a child support period is to be calculated. A critical element of that calculation is each parent’s “percentage of care” for the child, which is to be determined under sections 49 to 54E of Subdivision B of Division 4 of Part 5 of the Assessment Act.
Determining the applicable percentage of care involves identifying the amount of time a parent is responsible for providing care for the child. This requires consideration of the percentage of care that the person is likely to have, or has had, of the child during the relevant care period. Each time the care provided by one or other parent changes, a new care period arises and Child Support must consider if there has been a change in the percentage of care and what the new percentage of care should be.
This has an important impact on this matter, in circumstances where there was a further care change on 10 June 2023, which Child Support has decided led to neither parent having care. As this in effect meant that the child support assessment ended and as there is an outstanding objection in respect of that care decision, the Tribunal has decided that it is not appropriate for it to consider care post 10 June 2023. After receipt of the objection decision in respect of that care change, both parties will have rights to apply to the Tribunal for review. Until there has been an objection decision, however, the Tribunal does not have jurisdiction to review that care decision.
This means that the Tribunal is only considering care for the period 4 May 2023 to 9 June 2023. The Tribunal appreciates that this will be frustrating for the parties and that the parties clearly wished the Tribunal to consider care up to 22 December 2023 (when both parties agreed [Child 2] was no longer in their care). The Tribunal assures the parties that it has considered this position very carefully before reaching this conclusion.
The Tribunal’s role is confined to reviewing the decision under review, the Objection Decision dated 2 June 2024. Its role is not to examine the history of child care arrangements or any disputes between the parties, nor is it to adjudicate or comment on the quality of care provided to [Child 2]. Nothing in this decision should be taken as addressing any of those issues. Nor should it be taken as suggesting that either parent does not care for [Child 2] in the broader sense.
Issue 1: Has there been a change in care?
The term “care” is not defined in the Assessment Act or the Registration and Collection Act. Subsection 54A(1) of the Assessment Act allows the Child Support Registrar to determine care by reference to the number of nights the Registrar is satisfied the child was, or is likely to be, in the care of the person during the care period (and this is the method that Child Support has used in this matter). This is, however, not the only method of determining care.
Although Ms Scobie initially reported that the change in care occurred on 30 April 2023, the parties agreed that on 4 May 2023, Mr Golding required his children to leave his house after [Child 2] apparently stole items from him. Mr Golding told the Tribunal that [Child 2] left his care on 17 May 2023. He based this date on the fact that he and Ms Scobie had, at the time, week on/ week off care for the children and so the children were in Ms Scobie’s care as they ordinarily were, until 16 May 2023. Mr Golding said that, from 17 May 2023, he had no care of [Child 2] and they fell out of contact until recently. He said that, in that time, [Child 2] was not living with her mother and was instead living either with friends or with the family of her girlfriend, [Friend A]. His awareness of where she was living, he said, came from his other children, [Child 1] and [Child 3], and third parties. He also relied upon information he had obtained afterwards, after he resumed contact with [Child 2], including from [Child 2] herself.
Mr Golding relied upon various statements in this regard, and the Tribunal notes in particular:
A statement from [Ms A], the mother of [Child 2’s] girlfriend, [Friend A], dated 11 April 2024 that states that [Child 2] (who goes by the name [alias]) has been living with them since 10 June 2023 (folio 19).
A statement from [Child 2] that is undated but that was provided to the Tribunal by Mr Golding on 26 September 2024 (folio A4). This provides a timeline of events that involve [Child 2] stating that she stayed with her mother and/or with friends between 4 May and 10 June 2023, and that she lived with [Friend A’s] family from 10 June 2023 to June 2024.
Mr Golding also provided a series of statements from his partner, his stepchildren and [Child 1] (who were all over 18) (folios 83 to 86). These were all dated either 21 or 22 June 2023 and are all in substantially similar terms. The Tribunal does not consider that these statements advance matters and has disregarded them. The Tribunal has also disregarded Mr Golding’s care calendars (folio 88) in circumstances where he has accepted that he did not have care of [Child 2] during the care period under consideration.
Ms Scobie provided statements from her partner and various friends and neighbours. The Tribunal will not take into account the statements from people who do not have firsthand knowledge, and will therefore disregard statements from family members, her friends and neighbours. Ms Scobie's partner, [Mr A], provided a statement apparently dated 29 August 2023 (folio 126) that relevantly states:
[Child 2] has been in [Ms Scobie's] care full time from May 4th 2023,... she has her own bedroom at our home and resides with us all the time from may 4th 2023… all her belongings were brought to our house and remain here with us. Furthermore I can vouch for the fact that [Child 2] has been in our care since this time. [Ms Scobie] and I I are 100% responsibile [sic] for [Child 2’s] care and we take her to all her appointments and pay for all her expenses
Ms Scobie also provided the Tribunal with a bundle of documents regarding payments she had made in respect of [Child 2].
Based on the available evidence, the Tribunal finds that, from 4 May 2023, [Child 2] was in the 100% care of Ms Scobie. The fact that on some nights [Child 2] may have stayed with friends or her girlfriend’s family are minor deviations from the pattern of care and do not detract from this. When [Child 2] was not physically staying with her mother, the Tribunal considers that she was still within her mother’s care, and finds accordingly.
Issue 2: Should the existing care percentage determinations be revoked and from when (if at all) should the revocation take effect?
The pre-existing care percentages were 49% to Mr Golding and 51% to Ms Scobie. It is therefore necessary to revoke those care percentages before new care percentages can be made. Consideration needs to be given first to whether the existing care percentages should be revoked under section 54G of the Assessment Act. This applies where there is an existing care determination under which the parent was to have at least regular care but they now have nil care (as the Tribunal has found is the case here) despite the other parent making the child available to them, and the other parent (here, Ms Scobie) notified Child Support of this change in care within a reasonable time.
Ms Scobie notified the care change on 30 May 2023 (folio 71), which the Tribunal finds is within a reasonable time of the care change. Whilst it was around four weeks later, noting that [Child 2] was no longer in her father’s care at all it gave time for the parties to determine whether this was a temporary or permanent state of affairs.
It is harder for the Tribunal to determine whether Ms Scobie made [Child 2] available to Mr Golding. The parties agreed that Mr Golding told Ms Scobie that the children were not (for a time at least) welcome at his home. [Child 2] was also, at the time, 17, and it would be difficult to force her to stay with her father. However, in the absence of evidence supporting a finding that Ms Scobie made [Child 2] available to Mr Golding the Tribunal is unable to revoke under section 54G.
Section 54F of the Assessment Act applies where section 54G does not and where:
· The existing percentage of care was determined in accordance with sections 49 or 50 of the Assessment Act (here the previous percentages were determined in accordance with section 50).
· Child Support is notified or becomes aware that the actual care does not correspond with the person’s percentage of care for the child under the existing determination. The Tribunal has found that this occurred on 30 May 2023.
· If a new percentage were to be determined under either sections 49 or 50 of the Assessment Act, it would change the person’s cost percentage. A reduction in Mr Golding’s care percentage from 50% to 0% means that his cost percentage changes from 50% to 0%. Ms Scobie’s cost percentage changes from 50% to 100%.[2]
[2] Section 55C of the Assessment Act.
Once the requirements of section 54F are met, the Tribunal must revoke the existing determination. The Tribunal finds that the existing care percentages are revoked under section 54F of the Assessment Act from 3 May 2023 and replaced by the new care percentages from 4 May 2023.[3] The Tribunal therefore finds that, from 4 May 2023, care was 0% to Mr Golding and 100% to Ms Scobie.[4]
[3] Subsection 54F(3)of the Assessment Act.
[4] Under section 49 of the Assessment Act in respect of Mr Golding and section 50 of the Assessment Act in respect of Ms Scobie.
This is the same outcome as reached by the Child Support objections officer in the Objection Decision dated 2 June 2024.
The Tribunal notes again the further care change, to nil care by either parent, on 10 June 2023.
DECISION
The Tribunal affirms the decision under review.
| Date of hearing: | Wednesday, 9 October 2024 |
0
0
0