Heinrich and Bannerman (Child support)

[2020] AATA 2670

Heinrich and Bannerman (Child support) [2020] AATA 2670 (11 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC019032

APPLICANT:  Mr Heinrich

OTHER PARTIES:  Child Support Registrar

Ms Bannerman

TRIBUNAL:Member Y Webb

DECISION DATE:  11 June 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – child boarding away from home – 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. This review is about the percentages of care of Mr Heinrich and Ms Bannerman in relation to their son (the child).  The child is now 19 years old but this decision relates to a period beginning in 2017.

2. The child support assessment was first registered on 11 July 2005.

3. Since October 2009 the percentages of care for the child were recorded by the Department of Human Services (Child Support Agency) as 100% care to Ms Bannerman and 0% care to Mr Heinrich.

4. There are no court orders or written parenting plans in relation to the care of the child.

5. By letter dated 6 February 2019 Mr Heinrich contacted the Child Support Agency and advised that from 17 October 2017 the child was no longer living with his mother.  He stated that the child had commenced an apprenticeship in [Town] and that the child was living in [Town] and not with Ms Bannerman.

6. The Child Support Agency attempted to contact Ms Bannerman without success and on 11 March 2019 it decided that Ms Bannerman had 0% care and Mr Heinrich had 100% care of the child from 17 October 2017. In its letters to the parents dated 11 March 2019 the Child Support Agency advised that this change would be applied to the assessment from 6 February 2019 for Mr Heinrich (that being the date of notification of the change in care) and from 17 October 2017 for Ms Bannerman (that being the date of the care change).

7. On 28 March 2019 Ms Bannerman objected to that decision. She contended that she still had 100% care of the child; he did not live in [Town] and he did not live with Mr Heinrich.

8. On 11 October 2019 an objections officer allowed Ms Bannerman’s objection on the basis that there was insufficient evidence of a change in care.

9. On 13 May 2020 Mr Heinrich requested review by the Administrative Appeals Tribunal (the Tribunal).

10. Mr Heinrich and Ms Bannerman attended the hearing by way of a telephone conference on 11 June 2020 and both gave sworn evidence. 

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to the care of 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 and from when should it apply?

CONSIDERATION

1. 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) Act 1988.

2. 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.

3. 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 reflect the pattern of care that a person has, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will continue to apply unless or until a further care determination is made).

4. In circumstances where there are no court orders or written parenting plans the care is established by considering the actual pattern of care that is taking place.

5. The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the child and whether the care that was occurring did not correspond with the pre-existing care determination of 100% to Ms Bannerman and 0% to Mr Heinrich.

Mr Heinrich’s evidence and contentions

1. Mr Heinrich clarified that he had not stated, when he contacted the Child Support Agency with his letter of 6 February 2019, that the child was living with him. His contention was that the child was no longer living with Ms Bannerman.  Mr Heinrich explained that the child started an apprenticeship in 2017 based in [Town].  He stated that Ms Bannerman lived more than 200 kilometres away.  He stated that since 17 October 2017 the child had been living at [a facility] in [Town].  He provided a letter signed by [officials] of [a] School confirming that the child was a resident of the school’s [boarding facility] from 10 September 2017 to 21 December 2018. 

2. Mr Heinrich told the Tribunal that he became aware of the living arrangements through the child with whom he spent time on weekends when he was available and not working.  Mr Heinrich stated that he could not say why he waited until February 2019 to notify that the care changed in October 2017.

Ms Bannerman’s evidence and contentions

1. Ms Bannerman denied that there had been a change of care in 2017.  She agreed that the child commenced an apprenticeship around October 2017 and that his work was located in [Town].  She agreed that he boarded at [the facility] from September 2017.  However, she explained that she paid the boarding fees of $[Amount] per week.   She also paid for the child’s mobile phone, food and some of his fuel costs.  Ms Bannerman stated that it was quite a financial struggle to afford the boarding costs but the child earned a very small wage as a first-year apprentice and it would have been impossible for him to pay for his own boarding arrangements.  Ms Bannerman stated that the child returned to her home on Friday evenings and returned to work from her home on Monday mornings.  Ms Bannerman stated that she continued to do the child’s laundry every week and provided meals on the days he returned to the family home.  Ms Bannerman stated that she was still caring for the child financially, mentally, physically and emotionally.  She stated that he found living away from home difficult and she supported him and was there for him at all times.

The Tribunal’s consideration

1. The Tribunal carefully considered all of the available evidence including the statements of the parents at the hearing.  The Tribunal found both parents to be credible and genuine and the Tribunal accepts their evidence as reliable.

2. There was no dispute between the parents that, from approximately October 2017, the child commenced an apprenticeship and that in the period September 2017 to December 2018 the child was boarding at the [School]’s boarding facility.  The Tribunal also finds that the letter from [the] School is accurate regarding the boarding arrangements for the child.

3. The term “care” is not defined in the legislation.  In the case of Polec & Staker[1] the Federal Magistrates Court of Australia stated that the words of the Act are to be construed having regard to the objects of the Act.  The Court stated that “the objects are clearly directed to ensuring that a person with the ongoing daily care of a child should receive adequate financial support from the parents of the child according to the capacity of each of the parents to provide that support”.

   [1] [2011] FMCAfam 959

4. The Court went on to state (at para 56) that in determining whether and to what extent a person has care of a child for the purposes of the child support legislation, the following factors are relevant considerations:

   (a)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?

   (b)to what extent does the person make arrangements for others to meet the needs of the child?

   (c)to what extent does the person pay for the costs of meeting the needs of the child?

   (d)to what extent does the person otherwise provide financial support for the child?

   (e)to what extent does the child provide for his or her own needs or have those needs met from another source?

   (f)to what extent is the child financially independent or financially supported from another source?

5. In this case the Tribunal accepts Ms Bannerman’s statements that she was paying for the boarding fees and that these costs at $[Amount] per week were very significant and were beyond what the child could have afforded on a first-year apprentice wage.  The Tribunal also accepts that Ms Bannerman was paying for the child’s phone and some of his fuel costs.  It also accepts that Mr Heinrich was also providing some financial support to the child.

6. The Tribunal also accepts Ms Bannerman’s statements that, throughout the time that the child was boarding at the boarding facility, he was still living with her three nights a week from Friday evening to Monday morning and that she had the usual costs of his food and use of utilities on weekends.  The Tribunal also accepts that Ms Bannerman continued to do the child’s laundry each week. In addition, the Tribunal accepts that she continued to provide emotional support to the child throughout the relevant period.

7. In summary, the Tribunal finds that although the child was boarding at the [School] for part of the week for work purposes, Ms Bannerman paid for the boarding fees and she continued to provide other significant financial, emotional and practical support to the child.  The Tribunal is satisfied that Ms Bannerman continued to provide 100% care for the child in the care period commencing 17 October 2017 and that there was no change of care.

8. Hence, the Tribunal concludes that there was no change in the care of the child from 17 October 2017.   Therefore, Ms Bannerman’s care remained at 100% and Mr Heinrich’s at 0%.

DECISION

The decision under review is affirmed.