Harsent and Bethel (Child support)

[2022] AATA 313

Harsent and Bethel (Child support) [2022] AATA 313 (4 January 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022286

APPLICANT:  Mr Harsent

OTHER PARTIES:  Child Support Registrar

Miss Bethell

TRIBUNAL:Member S De Bono

DECISION DATE:  4 January 2022

DECISION:

The objections officer’s decision is affirmed. (This means the application for review is unsuccessful.)

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 omitted 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 Harsent and Miss Bethell are the separated parents of [the child]. There has been a registered child support assessment in place since 19 January 2005. From 1 July 2008 there was a care determination in place which recorded [the child]’s care as 0% to Mr Harsent and 100% to Miss Bethell. On 13 July 2021 an officer from the Child Support Agency (Child Support) made the decision to reflect the care of [the child] as 0% to Mr Harsent and 0% to Miss Bethell from 26 April 2021.

2. On 6 August 2021 Miss Bethell objected to the new care determination in respect of [the child]. On 2 September 2021 an objections officer allowed Miss Bethell’s objection and made the determination to refuse the care determination that Miss Bethell had 0% care of [the child].

3. On 10 September 2021 Mr Harsent lodged an application for review of the objections officer’s decision with the Administrative Appeals Tribunal (the tribunal). On 15 December 2021 Mr Harsent and Miss Bethell gave evidence under affirmation via conference telephone. The tribunal had before it a bundle of documents (84 pages – referred to as the hearing papers) which had been sent to Mr Harsent and Miss Bethell prior to the hearing. The tribunal deferred its decision to allow Miss Bethell to provide further information. Miss Bethell did not provide further information, so the tribunal went ahead and made its decision on the basis of the oral and written evidence before it. Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

4. The issues which arise in this case are:

   ·      Should the existing care percentages of 0% to Mr Harsent and 100% to Miss Bethell be revoked? If so,

   ·      From what date should the existing care determinations be revoked?

   ·      What is the correct level of care attributed to the parents? And,

   ·      What is the effective date of the new care determination?

LAW AND CONSIDERATION

1. The law relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

2. The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carers percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

3. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Child Support’s policy in this regard, as set out in chapter 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the care of a child began or changed, and the same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

4. Sections 49 and 50 of the Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the child before a revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.

5. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections of the Act reflect the idea that Child Support makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.

6. The tribunal’s task on review is to stand in the shoes of the original decision maker. In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support. It is not appropriate in undertaking that task to assess care based on what happened from initial notification to Child Support up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to Child Support. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to Child Support – so that a new primary care percentage decision can be considered and made if appropriate.

7. The term “pattern of care” is not defined in the legislation. The tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.

Should the existing care percentage of 100% care to Miss Bethell be revoked?

1. Miss Bethell lodged an objection to the decision to record her care as 0% for [the child] from 26 April 2021 and Miss Bethell’s objection to this decision was allowed. In relation to the evidence given at the hearing, Miss Bethell said she went to stay with her friend [Ms A] with [the child] in around May 2021. As this was about a 45-60 minute drive from [the child]’s school, [the child] remained at [Ms A]’s house. Miss Bethell thought this occurred around the time of the June/July 2021 school holidays.

2. Mr Harsent agreed that [the child] was no longer living with Miss Bethell from the June/July 2021 school holidays, but he agreed that [the child] was still living with Miss Bethell after 26 April 2021. Mr Harsent said he picked this date after discussion with the Child Support officer when he was asked to name a date. As Mr Harsent knew that [the child] was not living with Miss Bethell at some stage after Easter and he said the Child Support officer suggested 26 April 2021, this was the date that Child Support used to determine the change of care for [the child].

3. Mr Harsent’s view during the hearing was that the change of care in respect of [the child] occurred at some stage in June/July 2021, when [the child] was residing at [Ms A]’s home and Miss Bethell was living in [Town].

4. In determining whether Miss Bethell was providing care to [the child] the Guide at 2.2.1 outlines what factors constitute the basics of care:

   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, the Registrar will consider whichever of the following are relevant to the particular case:

   ·To what extent the person has control of the child, including having overall responsibility for the child and making major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and arrangements for others to meet the needs of the child (delegated care).

   ·To what extent the person meets 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 the person pays for the costs of meeting the needs of the child.

   ·To what extent the person otherwise provides financial support for the child.

   ·To what extent the child provides for his or her own needs or has those needs met from another source.

   ·To what extent the child is financially independent or financially supported from another source.

5. In relation to determining the basics of care for older children living away from home the Guide states:

   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.

   Example: Rusty and Nichol have one child, Victoria, who is 16 and working part time after leaving school early. Rusty helps Victoria find a suitable flat and pays the bond so that Victoria can move closer to work. Rusty helps Victoria to pay for rent and utilities, and assists with other expenses such as buying work clothes and arranging and paying for medical appointments. Rusty also helps Victoria with decisions about things like finding alternative study options for further education. Every weekend Rusty does Victoria's laundry and provides cooked meals for the week. The Registrar would determine that Rusty continues to care for Victoria for child support purposes despite Victoria living separately from Rusty.

   Example: Marian and Jaquie have one child, Judy, who is 17 and working as an apprentice. Judy decides to rent a room in a share house. Jaquie helps Judy move in and pays the cost of petrol on the occasions Judy comes back for a visit. Jaquie also makes deposits into Judy's bank account every now and then if Judy needs some extra cash to make ends meet. Judy pays for rent, utilities and any other expenses, and shares in household chores including meal preparation and cleaning. Unless there were other relevant factors, the Registrar would determine that Judy is living independently and Jaquie does not care for Judy for child support purposes.

6. In relation to the support Miss Bethell provides to [the child] she said that [the child]’s attendance at school dropped around September 2021, she was sent letters about this and she has been the one involved with meetings with the school in relation to [the child]’s attendance. She said she has had three meetings with the Deputy Principal and meetings with an Indigenous worker at [the child]’s secondary school. Miss Bethell said she receives a text message from the school when [the child] has not attended, usually this is around 11 am, she then rings [the child] and if she cannot get hold of him she drives down to [Ms A]’s house. Miss Bethell said most of the time [the child] is asleep and his attendance at school has remained low.

7. Miss Bethell said she transfers money to [Ms A] via her bank account or she buys food or she sometimes gives money to [the child]. Mr Harsent said [the child] has told him that Miss Bethell gives money to [Ms A] to provide food and pocket money for [the child] but Mr Harsent said he does not believe this.

8. While [the child] was not living with Miss Bethell the tribunal is required to consider whether Miss Bethell was still providing care to [the child], as outlined by the Guide (see paragraph 15) which explains what constitutes the basics of care when determining who has care.

9. At the time of the notification to Child Support by Mr Harsent [the child] was 16 years old. While the Guide provides that financial support is a key factor in determining which parent is providing care it is not the only factor that needs to be considered. Miss Bethell said that [the child] returns to stay with her on weekends but this does not always occur as [the child] is playing [Sport] on some weekends. In relation to the care Miss Bethell provides to [the child], [Ms A] provided a letter dated 27 August 2021 that says Miss Bethell “covers all of [the child]’s expenses including food”[1].

   [1] Page 51 of the hearing papers.

10. Letters in relation to [the child]’s attendance at [High School] in relation to [the child]’s schooling were sent to Miss Bethell. The tribunal asked Mr Harsent who would be contacted if [the child] was to go to hospital and Mr Harsent thought it would be Miss Bethell. Mr Harsent did not agree the letter from [Ms A] should be taken into account because [Ms A] is Miss Bethell’s good friend.

11. The tribunal carefully considered the oral and material evidence and is of the view that as [the child] is 16 years old and plays [Sport], the costs associated with feeding him, clothing him and providing care and support to him could not be met solely by [Ms A] without her having financial support from Miss Bethell. According to Miss Bethell, [Ms A] also has a number of her own children as well.

12. The tribunal therefore accepted the written and oral evidence that Miss Bethell was still providing care to [the child] notwithstanding that they were not living in the same house and this included financial support as well being involved in meeting with [the child]’s school and being the contact person when [the child] is unwell. This means the tribunal agrees with the objections officer’s decision that the care of [the child] has not changed and Miss Bethell was still providing 100% care from 26 April 2021. 

DECISION

The objections officer’s decision is affirmed. (This means the application for review is unsuccessful.)