Hamilton and Bligh (Child support)

[2022] AATA 5044

Hamilton and Bligh (Child support) [2022] AATA 5044 (8 December 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024612

APPLICANT:  Mr Hamilton

OTHER PARTIES:  Child Support Registrar

Ms Bligh

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  08 December 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 – refusal to revoke the existing percentage of care determinations – 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. This review is about a change to the percentage of care determinations for Mr Hamilton and Ms Bligh in respect of their child [Child 1] (born April 2006).  There has been a child support assessment in place since 10 August 2015.

2. From 21 August 2021 the child support assessment reflected Ms Bligh as having 100 per cent care and Mr Hamilton as having 0 per cent care of [Child 1].

3. On 25 February 2022 Mr Hamilton notified the Child Support Agency of a change to the care arrangements stating that neither parent was caring for [Child 1] as he was living with his aunty from 4 February 2022.

4. On 1 July 2022 the Child Support Agency made the decision to reflect that Mr Hamilton provides 0 per cent care of [Child 1] and Ms Bligh provides 0 per cent care from 4 February 2022 (the original decision).

5. On 4 July 2022 Ms Bligh objected to this decision and on 4 September 2022 the Child Support Agency allowed the objection and made the decision to refuse to reflect that neither parent was caring for [Child 1] from 4 February 2022 (the objection decision).

6. On 7 September 2022 Mr Hamilton applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 17 November 2022.  Mr Hamilton and Ms Bligh gave evidence on affirmation by Microsoft Teams audio.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (147 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made; and if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Hamilton told the Tribunal there were no court orders or other written agreements relating to the care of [Child 1] and the parents rarely communicated about his care.  Mr Hamilton said he had heard [Child 1] was living with a family friend in Brisbane and then moved to [City 1] to live with Ms Bligh but that may not have been the case.  Mr Hamilton said care certainly changed when [Child 1] moved in with his paternal Aunt [Ms A] and his grandmother in Brisbane from around 4 February 2022.

2. Mr Hamilton said although [Child 1] was living with his aunt, he was very close to his sister and they spoke regularly about his wellbeing.  Mr Hamilton said he understood Ms Bligh had been paying his sister board when [Child 1] first moved to live with her but his sister now wanted no further contact with Ms Bligh.  Mr Hamilton said he stopped paying child support to Ms Bligh when the original decision was made by the Child Support Agency in July 2022 and later began paying his sister instead.  Mr Hamilton said he felt there was no reason for the Child Support Agency to remain involved given this arrangement.

3. Mr Hamilton explained it was his sister, [Ms A], who made the arrangements for [Child 1] to live with her and it was his sister who was responsible for his ongoing day-to-day care.  Mr Hamilton said it was not possible for Ms Bligh to provide any care for [Child 1] given she lived six to seven hours away in [City 1].  Mr Hamilton said while he did not get along with [Child 1], he only lived 10 minutes from [Ms A] and was always available if needed.

4. The Tribunal notes in evidence that a child support officer contacted [Ms A] on 31 August 2022 to discuss the care of [Child 1].  [Ms A] is recorded as confirming that Ms Bligh was paying her $150 per week for board but this had recently stopped.  [Ms A] also advises that she cares for [Child 1], takes him to school and to any after school activities.  [Ms A] also states that previously permission was needed from Ms Bligh to collect [Child 1] from school, however, she is now also listed as a contact at the school.  [Ms A] states she has no communication with Ms Bligh but there are no major decisions to be made about [Child 1] as he is a good kid.  The Tribunal further notes a letter from [Ms A] dated 16 September 2022 stating that [Child 1] has been living with her since the end of January 2022 and Mr Hamilton is now paying her privately to cater for [Child 1]’s wellbeing and needs.  [Ms A] adds that she meets all day-to-day living needs for [Child 1] with emotional and financial support from Mr Hamilton.

5. Ms Bligh told the Tribunal that after she moved to [City 1], [Child 1] had been living with her cousin in Brisbane before coming to [City 1] for the Christmas holidays.  Ms Bligh said although [Child 1] wanted to stay in [City 1], they agreed it was better for him to return to Brisbane and complete his schooling at [High School 1].  Ms Bligh explained that [Child 1] returned to Brisbane and then moved in with his [Ms A] about a week before school started.

6. Ms Bligh said she arranged to pay [Ms A] board and had been transferring $150 every week to meet his expenses.  Ms Bligh said in addition to this she was sending money direct to [Child 1] for pocket money and other costs such as his go card for public transport.  Ms Bligh said she was also paying school fees for [Child 1] and continued to be the main contact with the school while [Ms A] was now the second contact and Mr Hamilton the third contact.  Ms Bligh said in August this year she purchased [Child 1] a $1,200 laptop for school and Mr Hamilton refused to contribute.  Ms Bligh added that she still covered the full cost of gym membership for [Child 1] and his phone costs.

7. The Tribunal notes in evidence a letter from the principal of [High School 1] dated 20 July 2022.  This confirms that fees for [Child 1] to attend the school in 2022 were paid my Ms Bligh on 12 March 2022.

8. Ms Bligh said she spoke to [Child 1] nearly every day and believed she remained his primary carer even though he was now living with his [Ms A]. Ms Bligh confirmed she stopped paying [Ms A] the weekly board when the child support case ended after the original decision made by the Child Support Agency.

9. The Tribunal further notes in evidence  from the Child Support Agency a number of bank statements provided by Ms Bligh showing regular transfers to [Ms A] of $150 starting on 15 February 2022, and numerous ongoing transfers of money to [Child 1] noted as “cash deposits mum”.

10. It is not in dispute that [Child 1] began living with his paternal aunt and his grandmother from around 4 February 2022.  Mr Hamilton argues that because [Child 1] is living with his [Ms A] then Ms Bligh can no longer be providing care for him.  Mr Hamilton concedes that Ms Bligh was paying [Ms A] board for [Child 1] but this ceased around mid-July 2022 and he then started making his own payments to his sister.  Ms Bligh disagrees and submits that although [Child 1] is not physically living with her, she is still meeting his financial and emotional needs as well as making decisions about his education and welfare.

11. In such circumstances, care as measured in nights may not be a true reflection of the care arrangements.  The Tribunal must determine whether or not a particular parent is providing ongoing daily care even though the child is living separately from that parent.

12. The Federal Magistrates Court of Australia, in Polec & Staker & Anor[1] set out the factors to be considered in determining whether and to what extent a person has care of a child for the purpose of the child support legislation.  These are:

    ·     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 make arrangements for others to meet the needs of the child;

    ·     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 to the child;

    ·     to what extent does the child provide for his or her own needs or have those needs met from another source; and

    ·     to what extent is the child financially independent or financially supported from another source?

    [1] Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959

13. The Child Support Guide, at 2.2.1, also provides some guidance in relation to children living away from home.  It states:

    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.

14. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

15. While Ms Bligh is no longer paying [Ms A] board for [Child 1] and the letter from [Ms A] dated 16 September 2022 confirms that Mr Hamilton is now paying her instead, this was not the case when Mr Hamilton advised that care had changed.  There is no evidence to indicate that when [Child 1] moved in with his [Ms A] around 4 February 2022 she was receiving, or expected to receive, financial support from anyone other than Ms Bligh.

16. The Tribunal is satisfied that Ms Bligh continued to provide 100 per cent care of [Child 1] even though he was not living in her home.  Ms Bligh was providing ongoing financial and emotional support to [Child 1].  Ms Bligh remains the primary contact in relation to school matters and this includes the payment of school fees in 2022.  Mr Hamilton concedes he has no contact with [Child 1].

17. The Tribunal cannot find, based on the evidence provided, there has been a change in care for [Child 1] from 4 February 2022 such that the existing patterns of care are incorrect.

18. The Tribunal notes, however, it is open to either parent to notify of any subsequent change in the pattern of care.

DECISION

The decision under review is affirmed.