Holder and Holder (Child support)

[2022] AATA 2106

Holder and Holder (Child support) [2022] AATA 2106 (10 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022821

APPLICANT:  Ms Holder

OTHER PARTIES:  Child Support Registrar

Mr Holder

TRIBUNAL:Senior Member M Kennedy

DECISION DATE:  10 May 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 – existing percentage of care determinations revoked and new determinations made – decision under 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

1. Ms Holder and Mr Holder are the parents of [Child 1], in respect of whom a child support assessment was in place.  Under the assessment, Mr Holder had a liability to pay child support on the basis that Ms Holder had 100% care of [Child 1].

2. On 9 April 2021, Mr Holder contacted Services Australia to inform it that it had come to his attention that [Child 1] was no longer living with Ms Holder, and he had been living with his aunt [Aunt A] since 9 April 2020.

3. When contacted by Services Australia, Ms Holder confirmed that [Child 1] was not living with her, but said she remained responsible for [Child 1] financially and made important decisions in respect of him.  Mr Holder disputed these assertions.  Services Australia decided to replace the care determination with a care determination reflecting Ms Holder having 0% care of [Child 1] from 9 April 2020.  The decision was made on 4 June 2021

4. Ms Holder objected to the decision on 6 July 2021.  Ms Holder provided evidence of financial transactions, medical records and telephone bills.  The objection officer spoke with [Aunt A] who said she met all of [Child 1’s] costs, was recorded as his primary carer at the school and made decisions in respect of him.

5. On 26 August 2021, Ms Holder’s objection was disallowed. Ms Holder applied to the Tribunal for review on 25 November 2021.

CONSIDERATION

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Child Support Assessment Act 1989 (the Act).

2. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.  If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

Is [Child 1] in Ms Holder’s care for child support purposes?

1. The issue I must decide is whether care is no longer taking place in accordance with the existing care percentage determination of 100% care in favour of Ms Holder.

2. It is important to distinguish notions of care for child support purposes from notions of ongoing parental care for a child, including for children who are independent or have become adults.  For child support purposes, and although ‘care’ is not defined in the legislation, the meaning of the term is influenced by the objects and purposes of the child support scheme.

3. Departmental policy provides some limited assistance at the Child Support Guide at item 2.2.1.  I am to have regard to Departmental policy.  Relevantly, the Guide provides

   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.

1. In her evidence, Ms Holder accepts the [Child 1] was no longer living under her roof, but is aggrieved that the consequence of the care change is that she has incurred indebtedness.  Ms Holder points to various transfers of funds directly to [Child 1] to argue that is unfair that she is required to repay child support.

2. I have considered carefully the evidence Ms Holder relies on relating to direct financial contribution to [Child 1].  I note the evidence of the statement of [Grandmother A] ([Child 1’s] grandmother and the mother of Ms Holder and [Aunt A]) to the effect that she was aware of a request from [Aunt A] for money not to be paid to her in relation to [Child 1]. 

3. As Ms Holder contends, there is evidence that she has transferred funds directly to [Child 1] that mirror receipts of child support.  This however appears to me to commence from the point in time that care arrangements for [Child 1] were put in issue by Mr Holder.  Prior to that, transfers to [Child 1] were more ad hoc, and it is less clear that there is a direct correlation to the receipt of child support and outgoing payments to [Child 1].  In this way the pattern of transfers of funds directly to [Child 1] does not establish to my satisfaction that Ms Holder was meeting all or most of his day to day living expenses after 9 April 2020.

4. I also take into account Ms Holder’s evidence that from time to time she would take food to her sister and [Child 1], particularly when [Aunt A] was unwell.  I understood from the context of Ms Holder’s evidence that this was occasional.  Similarly, I accept that occasionally Ms Holder would purchase items of clothing for [Child 1], but again I am not satisfied that this was more than occasional.

5. [Aunt A] expressly told the objections officer that she has paid all costs associated with [Child 1] including food, clothing, medical and schooling.  The financial evidence provided by Ms Holder does not contradict the evidence of [Aunt A] in my view, and it is consistent with the fact of Johnathon living under [Aunt A’s] roof and that is not disputed by Ms Holder.  Ms Holder confirmed that there is no arrangement in place for regular payments of board or similar.

6. I assess the evidence before me as demonstrating that Ms Holder only provided financial support and met the costs of [Child 1’s] day to day expenses  to a limited and ad hoc  extent, and those expenses were more substantially and consistently met by [Aunt A] particularly given [Child 1] resided in her home.  This is not consistent with [Child 1] remaining in Ms Holder’s care for child support purposes when combined with the fact he was physically living elsewhere.

7. As to control and decision making for the child, the evidence is limited.  There is evidence that [School 1] had [Aunt A] recorded as primary contact for [Child 1] on 24 May 2020.  Ms Holder is also a contact but she is not the primary contact.  I accept that Ms Holder did remain in contact with the school from time to time, but in light of the documentary evidence I accept the evidence in [Aunt A’s] statement that she attended to most matters about schooling concerning [Child 1].  I find that Ms Holder had limited control of [Child 1], and had secondary responsibility to [Aunt A] for making major decisions, to the extent that this is relevant for an older child.

8. On balance therefore, taking into account the factors referred to in Departmental policy and the overall objects and purpose of the child support scheme, I find that [Child 1] was not in the care of Ms Holder from 9 April 2020.

9. I would therefore revoke the existing care percentage determination reflecting [Child 1] being 100% in Ms Holder’s care as I am satisfied that care is no longer taking place in accordance with that determination, and noting that a change to the care percentage determination of that order will change the cost percentage.  I make this determination pursuant to section 51F of the Act.

10. The date of effect of the revocation of the care percentage determination is an academic point, as the Department is obliged to make a related administrative decision to end the assessment.  To assist the Department in that regard, I confirm that on the limited evidence before me I also find that the date the care changed from 100% to 0% is 9 April 2020.  For completeness, the date of effect of the revocation of the care percentage determination for Ms Holder is the day before the care change day of 8 April 2020 in accordance with section 51F(3)(b)(ii) of the Act.

11. For the purposes of a review of a care percentage determination, I must also make a new care percentage determination to take effect from the day after revocation.  It follows from the findings I have expressed above that the new care determination is 0% in respect of both parents.  I make that new determination pursuant to section 49 of the Act.

12. I will therefore affirm the decision to disallow the objection.

Other matters

1. This review comes to the Tribunal as a review of a care percentage determination.  Where care percentage determinations are made that reduce each parent’s care percentage to 0%, and where there is no other eligible carer, this will give rise to another significant decision in the child support case; namely, it will amount to a ‘terminating event’.  The ending of the case is referred to by the objections officer.

2. At law however, a decision to give effect to a terminating event is different to a care percentage determination, notwithstanding that the same set of facts may give rise to both administrative decisions.  For the Tribunal, it is important to distinguish between the two because they each come to the Tribunal on a different jurisdictional basis, and further appeal or review rights are different for each kind of decision.  In undertaking this review I proceed on the basis that I am reviewing a care percentage decision and not a particular of the assessment (such as the identification of a terminating event).

DECISION

The decision under review is affirmed.