Jolley and Nihill (Child support)

[2024] AATA 482

Jolley and Nihill (Child support) [2024] AATA 482 (12 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC027156

APPLICANT:  Mr Jolley

OTHER PARTIES:  Child Support Registrar

Ms Nihill

TRIBUNAL:Member I Sheck

DECISION DATE:  12 February 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Ms Nihill’s care percentage of 86% in respect of [the child] is revoked and replaced with a new care percentage of 50% from 23 August 2022; and

• Mr Jolley’s care percentage of 14% in respect of [the child] is revoked and replaced with a new care percentage of 50% from 7 January 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – child living away from parents - existing percentage of care determinations revoked and new determinations made – where parents still providing care despite child living away from them - 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. Mr Jolley and Ms Nihill are the parents of [the child], born 5 September 2006. A case was registered with Services Australia – Child Support (Child Support) for the assessment of child support on 15 September 2006 and collection of the liability until 19 January 2022. The most recent care assessment, having effect from 22 August 2022, was based on care percentages of 86% for Ms Nihill and 14% for Mr Jolley.  On 7 January 2023 Mr Jolley notified Child Support that [the child] “is old enough and likes to be at both mother and fathers equally 50/50”.  Child Support contacted Ms Nihill regarding this and she agreed that this was the case.  On 25 January 2023 the parties were notified that the care percentages had been altered to 49% for Ms Nihill and 51% for Mr Jolley (cost percentages were 50% each) with effect from 7 January 2023.

2. On 28 July 2023 Ms Nihill contacted Child Support and requested that collection of the liability resume.  She also advised that with effect from 8 January 2023 the care arrangements for [the child] had changed, such that he was living with her for 164 nights of the year and the remainder of the year with his maternal grandparents.  On 1 August 2023 Child Support contacted Mr Jolley, who advised that [the child] lived with his grandparents 100% of the time.  On 21 September 2023 Child Support advised Ms Nihill that her notification of change in care was being treated as an objection to the decision of 25 January 2023.

3. The matter was referred to an objections officer of Child Support who partly allowed Ms Nihill’s objection.  The objections officer determined that Ms Nihill’s care percentage for [the child] was 56% on the basis that he was in her care for 204 nights of the year, and Mr Jolley’s care percentage was 44%.  The objections officer noted that Ms Nihill had objected to the decision of 25 January 2023 more than 28 days after that decision and considered whether there were special circumstances that prevented her from objecting earlier.  They noted that Ms Nihill “advised that she was pressured by [Mr Jolley] to agree to the care decision to reduce the payments” and “accepted that special circumstances prevented [Ms Nihill] from objecting earlier.” The date of effect of the new care determinations was therefore set to 7 January 2023.

4. By application received on 5 December 2023, Mr Jolley asked this Tribunal to review the decision of the objections officer. On 12 February 2024, the Tribunal conducted a hearing at which Mr Jolley and Ms Nihill gave evidence by MS Teams audio. The Tribunal had before it the relevant documents from Child Support (pages 1 to 271), which had been copied to the parties.

CONSIDERATION

1. The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. The Act sets out the statutory formula for the calculation of child support, which takes into account each parent’s adjusted taxable income and the level of care they provide for each child of the assessment. The provisions require Child Support (and the Tribunal on review) to determine whether an existing care determination can be revoked and if so, what new care percentage decision can be made.

Has there been a change in care?

1. As at 7 January 2023 Child Support had recorded that in respect of [the child], Ms Nihill had an attributed percentage of care of 86% and Mr Jolley, 14%.  The first issue is whether the care that was actually taking place corresponded with the recorded percentages of care.

2. The background to the case is as set out above.  The parties told the Tribunal that [the child] had been having some issues at his old school so from the beginning of the 2022 school year he was enrolled at [Town 1] State School.  [The child] was generally living with Ms Nihill at that time and it was a fair distance from her home to the new school.  She would drive him as he was subject to bullying on the bus.  During the course of 2022 [the child] told his father that he did not want to live with either of his parents.  Mr Jolley picked [the child] and his things up and he went to live with his paternal grandparents.  Declarations from Mr Jolley’s parents and third parties indicate this occurred around 27 July 2022.  After that, [the child] went to live with his maternal grandparents in [Town 2] at around the end of September 2022.  The basis of Mr Jolley’s application to the Tribunal is that [the child] has lived solely with his maternal grandparents since that time.  He told the Tribunal that as [the child] did not live with either himself or Ms Nihill, he thought assessing the child support as 50/50 would be the fairest way to deal with it.  He suggested this to Ms Nihill on 5 January 2023.[1]

   [1] Hearing papers, page 139

3. The Tribunal put to Ms Nihill that she had agreed when asked in January 2023 that [the child]’s care was 50/50. Ms Nihill said it had never been that but she felt pressured to agree. Later on she decided to stick up for herself and gave Child Support the actual care arrangements. Ms Nihill said that it would be easier if her mother ([Ms A]) could be assessed as having 100% of the care of [the child] but [Ms A] did not want to be involved at all with Child Support and had refused to make a claim as a non-parent carer. In terms of the actual time that [the child] lived with Ms Nihill during 2023, Ms Nihill told the Tribunal that he had stayed with her for most weekends as well as during the school holidays, but was also spending time with his friends. Mr Jolley submitted that he had frequently picked up [the child] on weekends and he was always at [Ms A]’s house. [The child] had also provided Mr Jolley with a number of Uber receipts,[2] and these showed that he was always departing from [Ms A]’s house. The Tribunal notes that the dates of these Uber trips are mainly on Fridays and Saturdays with one Sunday and one Monday. Ms Nihill responded that whenever [the child] was going to be picked up by his father or members of Mr Jolley’s family (it appears his paternal grandmother gives or gave him driving lessons),[3] they would always arrange that the pickup was from [Ms A]’s house due to conflict between Ms Nihill and Mr Jolley (or his family members).  The Tribunal asked Ms Nihill whether she had kept any records (for instance care calendars or diary entries) of when [the child] was with her and she said she had not as she didn’t think she would need to.

   [2] Hearing papers, pages 97 to 106 and 109 to 111

   [3] Hearing papers, page 126

4. It is common ground that Mr Jolley does not have any overnight care of [the child] and the Tribunal finds accordingly.  The parties agree that the statements made to Child Support in January 2023 that [the child] spends 50% of the time with each of his parents were false.  The basis of Mr Jolley’s application to the Tribunal is that [the child] does not reside with Ms Nihill at all and has not done so since at least the beginning of 2023.  Mr Jolley has said a number of times that “as far as I know” this is the case.  He has formed this impression because of information given to him by [the child].  Ms Nihill has responded to this by stating that [the child] tells his father what he thinks he wants to hear.  The Tribunal is satisfied that Mr Jolley genuinely holds the belief – likely due to information given to him by his son – that [the child] has resided only with [Ms A] during 2023.

5. Ms Nihill has consistently held that [the child] has also lived with her since 7 January 2023, however, there has been some variation regarding the nights involved.  In July 2023 Ms Nihill notified Child Support that [the child] was with her for 164 nights of the year.  Later she is recorded as saying that it was 204 nights a year.  The Tribunal asked Ms Nihill how she had calculated this figure and she responded that Child Support had calculated it.  Ms Nihill has also provided a letter from her mother [Ms A] dated 25 September 2023.[4]  This states that [the child] stays with her for schooling purposes, but at the time this letter was written [the child] was no longer attending school.  At some point he had commenced employment at [Employer] and Ms Nihill notified Child Support of his employment and the cessation of his studies on 4 September 2023.  Overall, the Tribunal does not place great weight on [Ms A]’s letter.  Ms Nihill also informed Child Support on 5 July 2023[5] that [the child] had left the care of both of his parents, was living with her parents and asked how her parents can start collecting child support from both her and Mr Jolley.

   [4] Hearing papers, page 96

   [5] Hearing papers, page 40

6. The Tribunal places weight on the text messages between Ms Nihill and Mr Jolley.  In an undated message that seems to have been sent just before 31 December 2022,[6] Ms Nihill states “Thanks, hes [sic] a good kid and a hard worker, we have to cover these costs seeming neither one of us has to house him”.  Shortly after this on 5 January 2023 Mr Jolley puts to Ms Nihill that the child support be changed to 50/50 as [the child] does not live with either one of them and Ms Nihill does not appear to respond to this or inform him that the assumption is incorrect.  The Tribunal concludes that up to at least 5 January 2023 [the child] was living solely with [Ms A].  Ms Nihill asserts that from 7 January 2023 [the child] resided with her for all of the school holidays, therefore he would have been with her throughout January 2023.  Ms Nihill did not give any reason for this apparent change in the care arrangements at the hearing, but in a statement to Child Support of 28 July 2023[7]  Ms Nihill is recorded as saying that [the child] started at a new school on 8 January 2023 and for this reason stays with his grandparents during school days.  [The child] actually started at the new school at the beginning of the 2022 school year, not 2023.[8]

   [6] Hearing papers, page 140

   [7] Hearing papers, page 53

   [8] Hearing papers, page 165

7. In the absence of any reliable or contemporaneous evidence, the Tribunal was not convinced by Ms Nihill’s evidence that [the child] lived with her for around half of the time from 7 January 2023 and concludes that he resided with his maternal grandparents only. 

8. Section 50 of the Act requires a new determination of a percentage of care to be made where the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances.  The parties’ notifications to Child Support during 2023 and their oral evidence to the Tribunal satisfy the Tribunal that as at notification of the care change on 7 January 2023, neither Ms Nihill nor Mr Jolley had overnight care of [the child].

What are the new care determinations that should be made?

1. Subsection 54A(1) of the Act provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied the child was, or is likely to be, in the care of the person during the care period.  In this case the Tribunal has found that from 7 January 2023 on, [the child] has been staying with his grandmother [Ms A].  It is likely that during this period [the child] also stayed over at friends’ houses on occasion, but the Tribunal did not seek evidence on that point.  Is it then appropriate to replace the revoked care determinations with new determinations that Ms Nihill’s care percentage is 0% and Mr Jolley’s is 0%?  Or is it appropriate to make a decision that a terminating event has occurred?

2. Mr Jolley suggested to Ms Nihill on 5 January 2023 that the child support be assessed on a 50/50 basis, given that neither of them had actual care of [the child] and both of them contributed financially to his upkeep.  This approach is not inconsistent with the child support legislation, as use of the “nights in care” is not mandatory.  Further to this, in the recent case FWGS and Child Support Registrar (Child support second review) [2021] AATA 305 (24 February 2021) at [25], the Tribunal stated:

   The concept of ‘care,’ however, is broader than the provision of accommodation on any given night, and percentage of care does not necessarily need to be determined by reference to a time based calculation (P v Child Support Registrar [2013] FCA 1312 at [107]; and P v Child Support Registrar [2014] FCAFC 98 at [47].

1. In the Federal Magistrate’s Court decision Polec & Staker & Anor(SSAT Appeal) [2011] FMCAfam 959 (9 September 2011), the child in question had moved from his mother’s house to take up an apprenticeship and was boarding with a third party. The Court noted at [56]:

   In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   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. In considering whether [the child] should be taken to be in the care of Ms Nihill or Mr Jolley for the purposes of assessing a care percentage, the Tribunal notes that both of his parents have provided bank statements showing the direct payments they have made to [the child] for his expenses.  Ms Nihill also provides her mother with payment for [the child]’s food and board.  It is unclear whether Mr Jolley also makes direct payments to [Ms A] towards [the child]’s upkeep.  It appears from the various text messages between the parties that both Mr Jolley and Ms Nihill, as well as their family members, are all involved in [the child]’s activities such as taking him to and from work or to sports and helping with driving lessons/practice.  From the comments of the parties it appears that both parents interact well with [the child] and express interest in his choices such as directions of future study.  It also appears that [the child] is an independent young man who makes many decisions himself, such as when he informed his parents in mid-2022 that he did not wish to live with either of them and went to reside with his grandparents.  On balance, the Tribunal concludes that a fair assessment of the care percentages would be to reflect the arrangement that appears to have been agreed on by the parents in January 2023.  This means that Ms Nihill’s care percentage is 50% and Mr Jolley’s care percentage is 50% from the date of the care change.

Should the existing care determinations in relation to [the child] be revoked?

1. There are a number of provisions in the Act which provide for the revocation of existing care determinations.  The first section of relevance is section 54G, which states that if a person was to have at least regular care of the child during a care period and they have had no care of the child, or have had a pattern of care that is less than regular care of the child, despite the other party making the child available to them, and the other party notifies the Child Support Registrar of this within a reasonable period, the existing care determinations must be revoked.  The Tribunal has found above that both parties have care of 50% therefore section 54G does not apply in this case.

2. Section 54F is then the relevant section under which the care determinations in place as at 7 January 2023 must be revoked.  Those determinations were that Ms Nihill’s care percentage was 86% and Mr Jolley’s 14%.  As the care that was taking place was different to this, the existing care determinations must be revoked.  The Tribunal has concluded that [the child] left the care of both of his parents around the end of July 2022.  He first lived with his paternal grandparents and since the end of September 2022 has lived with his maternal grandparents.  Child Support was notified that there was a change in the care arrangements on 7 January 2023.

3. As noted above, the change in care arrangements occurred about late July 2022.  Child Support was advised of the change some six months later.  In accordance with paragraph 54F(3)(b) of the Act the existing care determinations must be revoked from:

   (i) the responsible person’s care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

   (ii) the responsible person’s care of the child has reduced--the day before the change of care day.

4. This means that the determinations that Ms Nihill’s care percentage was 86% and Mr Jolley’s 14% must be revoked.  These determinations have been in place with effect from 22 August 2022.  The Tribunal therefore considers that it is appropriate to assess the change of care day as 23 August 2022, as clearly the determinations cannot be revoked from a point prior to coming into effect.  In accordance with paragraph 54F(3)(b), the determination that Ms Nihill had a care percentage of 86% is revoked with effect from 22 August 2022 and the determination that Mr Jolley’s care percentage was 14%, with effect from 6 January 2023.  The new determinations then take effect from the days after the relevant revocations. 

5. At the hearing Ms Nihill noted that [the child] is spending more time residing with her recently, due to other family members coming to reside at [Ms A]’s house.  It is open to Ms Nihill to notify Child Support of any new changed care arrangements and request a further reassessment of the liability.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Ms Nihill’s care percentage of 86% in respect of [the child] is revoked and replaced with a new care percentage of 50% from 23 August 2022; and

• Mr Jolley’s care percentage of 14% in respect of [the child] is revoked and replaced with a new care percentage of 50% from 7 January 2023.