Jeffers and Garfield (Child support)

[2019] AATA 5735

Jeffers and Garfield (Child support) [2019] AATA 5735 (14 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017413

APPLICANT:  Mr Jeffers

OTHER PARTIES:  Child Support Registrar

Ms Garfield

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  14 November 2019

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 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 Jeffers and Ms Garfield in respect of the child [Child 1] (born January 2001).  There has been a child support assessment in place since 23 January 2001.

2. From 10 April 2018 the child support assessment reflected Mr Jeffers as having 0 per cent care, Ms Garfield as having 0 per cent care and a non-parent carer, [Ms A], as having 100 per cent care of [Child 1] with effect from 4 May 2018.

3. On 21 December 2018 Ms Garfield notified the Department of Human Services, Child Support (the Child Support Agency) there had been a change of care with Ms Garfield providing 100 per cent care of [Child 1] from 16 December 2018.

4. On 28 February 2019 the Child Support Agency made the decision to refuse to reflect the care of [Child 1] as 100 per cent to Ms Garfield.

5. On 26 March 2019 Ms Garfield objected to this decision and on 20 August 2019 the Child Support Agency allowed the objection and made the decision to reflect that Ms Garfield provides 100 per cent care and Mr Jeffers provides 0 per cent care of [Child 1] from 14 December 2018 (the objection decision).

6. On 14 September 2019 Mr Jeffers 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 14 November 2019.  Mr Jeffers and Ms Garfield gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (249 pages).

ISSUES

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

   [1] As it applied after 23 May 2018 and 1 July 2018.

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 (or non-parent carer) 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 (or non-parent carer) 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 the likely care is 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 existing percentages of care to be revoked and new care determinations to be made; and if so,

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

CONSIDERATION

1. Mr Jeffers told the Tribunal that due to issues at home [Child 1] had been living in the full-time care of a third party, [Ms A], from 10 April 2018. 

2. Mr Jeffers explained that in early December 2018 [Child 1] had told him she was no longer going to stay with [Ms A] but would be moving in with her maternal grandmother.  Mr Jeffers said he was in frequent contact with [Child 1] during December 2018 and January 2019 and she had informed him she did not want to live with her mother.

3. Mr Jeffers told the Tribunal he did not agree with the claim made by Ms Garfield that [Child 1] was in her 100 per cent care from 14 December 2018.  Mr Jeffers said [Child 1] had told him she was living with her maternal grandmother and he had no reason to doubt her.  He added that [Child 1] had a very strained relationship with her mother.

4. Mr Jeffers said the Child Support Agency had made a complete mess of the care arrangements and provided him with conflicting advice.  Mr Jeffers said as a result of the mistakes made by the Child Support Agency he now had a child support debt which was causing significant financial hardship.  He said he had no faith in the Child Support Agency.

5. Ms Garfield told the Tribunal that following their disagreement earlier in the year she had reconciled with [Child 1] around 14 November 2018.  Ms Garfield said [Child 1] had told her she was arguing with [Ms A] and wanted to move out.

6. Ms Garfield said that on 14 December 2018 she had accompanied a friend of her mother’s to pick up [Child 1] from [Ms A’s] home.  Ms Garfield acknowledged that [Child 1] had originally planned to live with her maternal grandmother but decided to move home again instead as her grandmother was unwell.  Ms Garfield said [Child 1] also wanted to return to school and knew she was the best person to help make the arrangements.  Ms Garfield said [Child 1] did not want her father to know where she was living and so did not tell him she had moved back to her home.

7. Ms Garfield told the Tribunal there was a child protection practitioner working with [Child 1] who had sighted her bedroom at home and provided a written statement in relation to care.  Ms Garfield said she had also provided additional third-party statements to the Child Support Agency in support of her care of [Child 1].

8. The Tribunal notes in evidence from the Child Support Agency a number of third-party statements regarding the care of [Child 1].  Some state that [Child 1] returned to the care of Ms Garfield on 14 December 2018 while others state she returned to the care of Ms Garfield on 16 December 2018.  The Tribunal places particular weight on a statement from a Senior Child Protection Practitioner from the Department of Health and Human Services, [Ms B].  In this statement, dated 27 February 2019, [Ms B] confirms that [Child 1] has been residing with Ms Garfield since 14 December 2018.

9. Mr Jeffers did not disagree with the statement made by [Ms B] but said he questioned the validity of the other third-party statements given the inconsistency in the dates and the fact that some of the statements were not signed.  Ms Garfield explained that it was not unreasonable for those who supplied third-party statements to have slightly different views about the date [Child 1] returned to her care as it was likely they did not see [Child 1] at home on the exact day she returned.

10. The Tribunal also notes in evidence from the Child Support Agency that on 20 August 2019 a child support officer contacted [Ms B] at the Department of Health and Human Services and [Ms B] confirmed the authenticity of her statement.  The record of the conversation shows [Ms B] reiterated that [Child 1] had been residing with her mother from 14 December 2018.

11. The parents agree that [Child 1] left the care of [Ms A] in December 2018.  Mr Jeffers believes [Child 1] went to live with her maternal grandmother based on his conversations with [Child 1].  Ms Garfield has stated [Child 1] moved into her full-time care from 14 December 2018.  In circumstances where there is disagreement about the care of a child, as in this case, the Tribunal will consider the supporting evidence of each parent.  The Tribunal finds the third-party statement given by [Ms B] to be compelling.

12. The Tribunal is satisfied, based on the evidence provided, that care of [Child 1] changed from 14 December 2018.  The Tribunal finds Mr Jeffers provides 0 per cent care and Ms Garfield provides 100 per cent care of [Child 1] from 14 December 2018.

DECISION

The decision under review is affirmed.