Jolley and Keenum (Child support)

[2023] AATA 4457

Jolley and Keenum (Child support) [2023] AATA 4457 (18 December 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026646

APPLICANT:  Ms Jolley

OTHER PARTIES:  Child Support Registrar

Mr Keenum

TRIBUNAL:Member R Prasad

DECISION DATE:  18 December 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 8 August 2023 and a new care determination is made that Ms Jolley had 0% care and Mr Keenum had 0% care of the child from 9 August 2023.

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 set aside and substituted

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. In 2009, a binding child support agreement was entered into by Ms Jolley (the mother) and Mr Keenum (the father), that dictated, among other things, that each month their three children live with the mother for 20 days and the father for 10 days and spend additional time with the father over holidays, until the children turned 18 years old. The agreement also provided that medical, school and educational expenses be shared 70% to the father and 30% to the mother.

2. Since 2010, the father and mother have had a registered child support assessment for their youngest child, [Child 1] born [in] November 2005 (the child). From 14 May 2017, Services Australia – Child Support (Child Support) has collected child support on the basis the mother had 100% care and the father 0% care of the child. These percentages denote the existing percentages of care.

3. On 27 January 2023, the father notified Child Support that from 25 January 2023, the child had moved to Brisbane to attend [College 1] and was no longer in the mother’s care, and that both parents had 0% care of the child.

4. On 2 April 2023, Child Support decided to reject the request for a new care percentage determination, as the mother had provided evidence confirming she was supporting the child while the child lived and studied in Brisbane (the original decision).

5. On 3 April 2023, the father objected to the original decision on the basis the child was living with the child’s older sibling in Brisbane, and that both of their names were on the lease. The father noted the child was independent and was making their own daily decisions, that the mother had transferred only one child support payment to the child but it was not certain whether this was an ongoing arrangement, and that the mother was not making contributions to the child herself.

6. Following receipt of further evidence from both parents, on 18 August 2023, Child Support allowed the father’s objection in part and decided that the mother had 0% care of the child and the father had 0% care from 25 January 2023 (the objection decision).

7. On 22 August 2023, the mother sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

8. The matter was heard on 29 November 2023. The mother appeared by MS Teams audio and the father elected not to attend the hearing. The Child Support Registrar also elected not to attend the hearing, but provided documentation (folios 1 to 200). 

9. During the hearing, I allowed the mother to provide evidence to corroborate her claims and noted the father would also be permitted to respond to her evidence, after which I would proceed to make my decision. The mother provided the additional information (folios A1 to A28), and a copy of these documents was exchanged with the father. The father provided a response to the mother’s additional information (folio B1), and a copy was provided to the mother.

ISSUES

1. The relevant issue before me is whether there was a change to the child’s care arrangements and, if so, the date of effect of the new care determination.

CONSIDERATION

What is required?

1. Subsection 5(2) of the Child Support (Assessment) Act 1989 (the Act) defines ‘regular care’ to mean a person’s percentage of care for the child is at least 14% but less than 35%.

2. Section 49 of the Act provides that if I am satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for a period (the care period) as I consider to be appropriate in the circumstances, I must determine the percentage of care for the child to be 0%. If an existing determination of care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period as I consider appropriate in the circumstances, under section 50, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.

3. Section 51 of the Act provides the percentage of care where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with.

4. The Act, under section 54, defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement such as a court order or written agreement. Section 54A provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person. 

5. Under section 54F of the Act, a determination of an existing care percentage must be revoked if there is a change to a person’s cost percentage, which is dependent on a change to the care percentage, and sections 54G and 51 do not apply.

6. Section 54G provides that a determination of an existing care percentage must be revoked if a person was to have at least regular care of the child but has had no care or less than regular care, a determination is made under section 50 about the other responsible person’s care percentage, and notification of the care change has been made in a reasonable period.

7. Under section 55C of the Act, where a person has a care percentage of less than 14%, their cost percentage is nil.

What information has been provided in relation to the care of the child?

1. The dispute that has arisen was a result of the father notifying Child Support in January 2023 that the mother had 0% care of the child from 25 January 2023 as the child had moved to Brisbane to study.

2. The father informed Child Support that the mother lived [distance] away from where the child was living in Brisbane. He claimed that the child support he paid was more than what the child actually needed and that the mother should also contribute, given that she had sold their house for a large amount of money and bought a new house for less than half that amount. He wanted Child Support to record that both parents had 0% care and that the parents work out privately how to support the child. The father also contended that the mother was sending less child support to the child than he was paying. The father also advised the child had started working from 19 July 2023.

3. In his response to the mother’s additional information provided to the Tribunal, the father claimed that due to his work he has not always been present, but his children know that he is only a phone call away. He stated that he had always looked after his children and helped cover rent and expenses in the last two months, and that he always paid the required child support payments except in February and March 2023 while he had surgery and his finances were stretched. Whenever he visits the children, they would always have Chinese takeaway. The father noted that while the child has had some financial issues, the child managed to take extra shifts at work to make ends meet.

4. During the hearing, the mother advised that as she had relocated to a suburb [near Region 1], the child went to live in Brisbane with the child’s older sibling, while studying [ a course 1] at [College 1]. The mother sent any child support payments she received to the child for living expenses and to pay for half of the rent and utilities, while the older sibling, who worked part time, paid for the other half. The child was not in receipt of Centrelink benefits and would instead rely on the child support payments while studying in Brisbane. The mother says that if she had known there would not be any child support, then they would not have had any funds for the child to pursue their [College 1] studies. She noted that in January 2023, the child was still 17 years old and therefore a dependent, and the binding child support agreement provided for the father’s financial support until the child turned 18 years old. The mother confirmed that the child support agreement was largely not followed and that she had not taken any steps to enforce it as she was happy to have 100% care of all the children. She claimed that the father only provided financial support, but also did not comply with other parts of the agreement, such as the medical expenses. She has instead been paying for private health insurance for the child and older siblings, which she can no longer afford, and also pays for other medical expenses.

5. The mother asserted that the father paid child support at different times and sometimes halved the amounts, so she would send through what she received as well as other amounts. The mother advised the child support payments were being used to pay for the child’s rent, groceries, any incidental costs from [College 1] such as [equipment] and other items for the course, to set up the apartment, and for public transport. She confirmed that the child support payments were solely to support the child, and not the older sibling. She clarified what she had written in her statement she provided to Child Support on 26 April 2023 (the April statement) that the child support payments may have incidentally assisted the older sibling. By this, the mother claimed, that the child and older sibling both did grocery shopping and they bought groceries for each other.

6. In relation to the mother’s financial circumstances, the mother stated that when she divorced the father, she retained the house. She has subsequently sold the house and bought a different property [near Region 1] where she is trying to establish a [farm]. At the moment, the business is not making any money, but she is receiving Centrelink assistance for this. The mother claimed she sent the child and the older sibling funds she had remaining from the house sale and from when she did some work. The mother said she assisted with groceries whenever she visited, paid the insurance and fuel for the car owned by the older sibling which was used by the child, paid the child’s phone bills as it was still on her [Business 1] account, and transferred other amounts that the child needed in addition to the child support payments. In support of her claims, the mother provided a summary that included when the child support payments were received and transferred to the child, when she paid monthly insurance for the older sibling’s car, a note that she paid $50 each month for the child’s mobile phone, and details of four extraneous payments to both the child and the older sibling comprising of $500 in January, February, and April 2023 and $350 in April 2023 for an orthodontist bill. She also provided a copy of her bank statement showing her transactions from January to August 2023. The bank statement shows child support payments she received and transferred each month, the extraneous payments to the child and older sibling, as well as payments for car insurance and [Business 1] services. The bank statement includes a note by the mother that the last child support payment by the father was on 8 August 2023. I note the bank statement does not show any other extraneous payment the mother sent to the child since April 2023. In the April statement, the mother noted the February and April 2023 transfer of $500 was for the older sibling, and that she visits the child and older sibling at least monthly when she does a grocery shop for them and takes them shopping for clothes. She also stated she purchased a new fridge for them. The mother has not provided any evidence of these additional purchases. The mother also provided Child Support a copy of her health insurance policy which covers the child as well as her two older children.

7. Further, the mother claims to be involved in the child’s life and provides emotional support. She says that while the child has good judgement, she texts and/or talks to the child every day or every second day. To support her claims, the mother provided call logs from 31 October to 28 November 2023, and the hearing papers include call logs from 19 to 25 April 2023. In the April statement, the mother says the child regularly visits her at her home, which allows the child to connect with friends and get back to nature.

8. The mother confirmed that the child has not continued studying after completing the course at the end of June or early July and graduating in August. The child has instead found part time employment to pay for the rent and other living expenses as the child had decided to stay in Brisbane. In her additional information, the mother stated that the child was not confident in enrolling in any study due to the financial issues the child was facing. The mother also advised the child had turned 18 in November.

9. The mother provided Child Support a statement from the older sibling dated 10 March 2023, which noted that the child and the older sibling both had their names on the lease and were paying rent weekly, that the older sibling worked part time to support themself, and that the mother sends through child support payments to the child every month which pays for the child’s portion of the rent, expenses for studying at [College 1] and general living expenses. I have placed minimal weight on this statement as it does not contradict the mother’s evidence.

10. As a result of the objection decision, the mother advised the child support payments had been cancelled and she now has a debt for child support payments received from 25 January 2023, which she is repaying at $58 a fortnight even though she has requested recovery to be paused. The Child Support records in the hearing papers indicate the father had overpaid $13,022.72. Referring to those records, the mother noted that Child Support queried whether the father would consider gifting this amount to the mother as she was forwarding the payments to the child who was living away from home. The mother asserted that the best outcome would be for the father to gift the amount as she was unable to repay the child support payments she had received for, and sent to, the child. I note that I am unable to specifically make such a finding.

Has there been a change to the care of the child?

1. I am undertaking a review of the applicable care percentage afresh. The father advised Child Support the child has not been in his care and has sought the care percentage to be reflected as 0% to both him and the mother. I will therefore consider the mother’s care of the child and whether there has been any change in care. While I am considering the mother’s care, I understand I am able to consider relevant events that have occurred after the date of notification of the change in care.[1]

   [1] Child Support Registrar v BKCZ [2023] FCA 1109 at [86]; Child Support Registrar v DQFY [2023] FCA 601 at [94].

2. The facts before me indicate that while the child moved to Brisbane to study at [College 1], the mother’s care of the child had not materially changed while the child studied. I have considered the decision of the Federal Magistrates Court in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, when making this finding. That matter provides guidance on the factors that could be considered when determining whether a parent is providing care for a child:

   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?[2]

   [2] Polec at [56].

3. Having considered these factors, I am satisfied the mother was providing care for the child for child support purposes until 8 August 2023. Since 25 January 2023, the child has been living in Brisbane, to pursue [a course 1 at] [College 1]. The rent, utilities, groceries, [equipment] needed for the course, and general living expenses were paid through the child support payments made by the father from January to August 2023. The mother has provided evidence that she had transferred these payments to the child, as well as two further payments she transferred to the child to pay the orthodontist and for the child’s other needs, the last extraneous payment being in April 2023. However, no corroborating evidence was provided that the mother bought groceries, did other shopping, or purchased a new fridge when she visited the child in Brisbane. In the absence of such corroborating evidence, I am unable to accept she made these purchases. In any event, during this period, from 25 January until the last child support payment, I find that the child was not financially independent and did not provide for their own needs. Once the child completed their studies and took extra shifts at work, the child has been paying for their own rent, utilities and groceries.

4. The information before me indicates that the mother has continued to pay for the child’s mobile plan with [Business 1] and medical expenses. The evidence indicates that the mother continues to have health insurance for the child as well as her older children, but has advised she can no longer afford to maintain this. The mother has also provided call logs between herself and the child for a week in April 2023, and from 31 October to 28 November 2023. While the call logs are only for discrete periods, I accept the mother’s claims that she regularly speaks to the child and provides emotional support.

5. Overall, I find that when the child had moved to Brisbane for studies, her care arrangement remained unchanged. The only change was that the child was not living with the mother as she lived some distance from Brisbane where the child was studying. After finishing her studies at the end of June or early July, she obtained employment around mid-July 2023. It was not until the child support payments ceased, the last payment being received and transferred on 8 August 2023, which I understand to be due to the objection decision finding the father and mother have 0% care of the child, and the child having to take extra shifts, that she became financially independent.

6. The child has also decided to keep living in Brisbane. While the mother continues to pay for the child’s mobile plan and her health insurance currently covers all her children, I note the mother has not transferred any extra funds to the child since April 2023 and I have no evidence of other financial support she has provided. Further, while the mother has provided evidence of the phone calls that continue between her and the child, I have no information about other care or support the mother provided after 8 August 2023. Accordingly, from 9 August 2023, I am not satisfied the care the mother provided constituted care for the purposes of child support.

1. I find the existing care percentages of 100% care to the mother and 0% care to the father had not changed from 25 January 2023 to 8 August 2023. From 9 August 2023, the requirements of section 49 of the Act are satisfied and there was likely no pattern of care by the mother. Therefore, the relevant care percentage for the mother is 0% from 9 August 2023 pursuant to subsection 49(3). I note that there has been no change to the father’s care, that is, his care percentage was 0% before and after the change to the mother’s care of the child. As neither parent has a pattern of care, I am satisfied that the requirements of section 50 of the Act are not met, which means the requirements of section 54G are not met.

2. I also note that while there is an existing child support agreement, neither party appear to have sought to enforce it. Section 51 of the Act is therefore not applicable.

3. As the care percentage for the mother is 0% from 9 August 2023, pursuant to section 55C her cost percentage is nil. Given the cost percentage has changed and sections 54G and 51 do not apply, pursuant to section 54F, the determination of the existing care percentage must be revoked. As the care changed from 9 August 2023 because the child support payments ceased as a result of the objection decision of 18 August 2023, which is when the Child Support Registrar became aware of the care change, the date of revocation of the determination is 8 August 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 8 August 2023 and a new care determination is made that Ms Jolley had 0% care and Mr Keenum had 0% care of the child from 9 August 2023.