Lepley and Lepley (Child support)

[2021] AATA 1978

Lepley and Lepley (Child support) [2021] AATA 1978 (18 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021046

APPLICANT:  Mr Lepley

OTHER PARTIES:  Child Support Registrar

Mrs Lepley

TRIBUNAL:Member J D’Arcy

DECISION DATE:  18 May 2021

DECISION:

The decision under review is affirmed

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of whether care exists – older child living away from parent – no change to the care percentages – 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 concerns the care percentages used in a child support assessment made by Services Australia (Child Support) for [the child], the daughter of Mr Lepley and Mrs Lepley.

2. [The child] was born in January 2004.

3. From 27 April 2020 Mrs Lepley had been assessed to have 100% care of [the child].

4. On 31 August 2020 Mr Lepley notified of the change in care for [the child], claiming that she had not been in either parent’s care since 18 May 2020.

5. On 1 December 2020 Child Support found that there had been no change to the pattern of care and continued to assess Mrs Lepley as having 100% care of her daughter.

6. Mr Lepley’s objection to this decision was disallowed on 8 February 2021.

7. On 18 March 2021 Mr Lepley applied for a review of the decision to the Administrative Appeals Tribunal (the tribunal).

8. Child Support provided Mr Lepley and Mrs Lepley and the tribunal with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (182 pages).

9. The hearing took place with Mr Lepley and Mrs Lepley by telephone on 18 May 2021.

ISSUES

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

2. The issues which arise in this case are:

   ·      has there been a change to the pattern of care? if so,

   ·      should the care percentages used in a child support assessment for the period be changed? and, if so,

   ·      what care percentages should be used? and

   ·      what is the date of the change to the care percentages?

CONSIDERATION

Has there been a change to the care pattern for [the child]?

1. Mr Lepley asserted that [the child] lives independently and that both parents should be assessed as having 0% of care of her.

2. Mrs Lepley responded that, although she and [the child] had not lived together for a period of 12 months, until recently, she had continued to provide ongoing care for her daughter and should be assessed as having 100% of care of her.

3. Mrs Lepley explained that her relationship with her partner broke down on 8 April 2020, due to domestic violence. Mrs Lepley moved with her three children to live with her sister and her sister’s three children. The living arrangements were not sustainable and she arranged for [the child] to live with the [A] family.  [Ms B], her eldest daughter, was a close friend of the daughter in the family. [The child] was not living with [Mr C]. He was a member of the family with whom she was living. In early June 2020 [the child] moved to live with the [D] family. She then undertook a short stint as a nanny between February and March 2021. Mrs Lepley and her daughter are now living together at an address which she preferred to remain confidential.

4. Mrs Lepley explained that over the past 12 months she has done everything to keep her daughter safe and supported. She accompanied [the child] to around 10 appointments with her general practitioner and accompanied her to hospital on several occasions. She also attended a [medical] specialist with her daughter. She has always been in constant contact with her daughter; if not daily, then every second day. She would email and message her and meet her for meals. She attempted to have her attend domestic violence counselling.

5. Mrs Lepley stated that she paid [the child]’s private health insurance, transferred money to [the child] directly and also indirectly through [Ms B] when [the child] was using the money to purchase alcohol. [Ms B] would take her sister shopping and ensure that she had sufficient money to purchase food and other necessities. Mrs Lepley paid [the child]’s phone bill. This year she has assisted her to enrol in university, has purchased her textbooks and iPad and other university requisites.

6. Mrs Lepley relied on the following documentary evidence:

   ·A letter dated 23 November 2020 from her daughter, [Ms B] Lepley, in which [Ms B] advised that Mrs Lepley and her children had been displaced due to domestic violence from the beginning of April 2020 and that [the child] had been staying with family friends. However, her mother had continued to provide her sister with emotional and financial support, including arranging appointments, transportation, medical expenses, and food and phone costs. In addition, Mrs Lepley had been transferring money into her account to spend on groceries for [the child], as needed, because [Ms B] visited her sister every day after work and on weekends.

   ·The statement from Mrs Lepley’s [Bank] account indicating regular bank transfers over the period 23 April 2020 to 24 November 2020 to both of her daughters for amounts between $20 and $150 and totalling $1,351.

   ·Mrs Lepley’s [telephone] account for the period of October/November 2020 covering three mobile phone services, which she explained were [the child]’s, [Ms B]’s and her own mobile phone services.

   ·A letter written by Mrs Lepley to Child Support on 3 December 2020 in which she stated that she was doing everything in her power to protect and care for her children, to keep them safe and to help them to process the trauma that her choice of partner has caused them. She further stated that she had been trying to support [the child] to address her mental health issues and to seek counselling.

   ·A screenshot from [a] health insurance site indicating that Mrs Lepley pays for [the child]’s health insurance.

   ·A copy of an invoice from a [medical specialist].

7. Mr Lepley explained that he has had irregular contact with his daughter over the past 12 months, talking to her around once a month. He could not be sure where she was living but thought that she was living with her boyfriend, [Mr C], for about six months, then nannying until six weeks ago. He had to assist with a police interview sometime in March 2021. He stated that he took [the child] to the dentist on several occasions and paid for her treatment. Although he had the receipts for the treatment, he had not sent them into the tribunal because he has to work. He has paid $10 per week towards his daughter’s phone and data bills. Mr Lepley stated that he was happy to provide money for his daughter, but not through Mrs Lepley.

8. Mr Lepley provided the following evidence to support his submission:

   ·a letter from a friend, [Mr E], who reported that his daughter had told him in August 2020 that [the child] was living with her boyfriend, [Mr C], and [Mr C]’s mother, and had not been living with her mother for two weeks after leaving her father’s house;

   ·information from [the child]’s school indicating her absence from classes from February to October 2020 and a letter from the school advising on alternative pathway options;

   ·a screenshot of a statement which notes “Direct Credit Lepley phone bill” showing amounts of $10 every fortnight over several months, with one amount of $49.02 on 4 March 2020, $40 on 20 August 2020 and $50 on 29 September 2020.

9. There is no statutory definition of care in the Act. Hughes FM in the matter of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 provided some guidance on what constitutes care and at paragraph 56 stated that 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?

10. In considering the evidence provided by Mr Lepley, the tribunal found that the letter from [Mr E] was consistent with the evidence given by Mrs Lepley that [the child] was living with a family friend and [Mr C] after [the child] moved from her aunt’s house. There is no dispute that [the child] was not attending school. The screenshot of the direct credits is inconclusive evidence because it does not indicate that the money is being paid to [the child], and, even if it did, that evidence alone, does not indicate that [the child] is living independently, considering the small amounts of money involved.

11. The evidence provided by Mrs Lepley indicates that she had provided both financial and emotional support to her daughter in the period that they were living apart following the breakdown of Mrs Lepley’s relationship. She provided a reasonable explanation as to why they could not live together, the steps she took to ensure that her daughter was safe and evidence provided by both herself and her daughter, [Ms B], that she was providing financial support to [the child] both directly, by providing her with money for food and necessities, and, indirectly, by paying for her mobile phone and her private health insurance.

12. There was no evidence available to the tribunal that [the child] was financially independent or financially supported from another source.

13. The oral evidence provided by Mrs Lepley, supported by the documentary evidence provided to Child Support, was strong and persuasive and consistent with the evidence provided by [Ms B]. Relying on this evidence and having considered the factors in Polec the tribunal found that Mrs Lepley had 100% care of [the child] from 27 April 2020.

14. The evidence provided by Mr Lepley did not indicate that [the child] was living independently and that he and Mrs Lepley should be assessed as having 0% care of their daughter.

15. The tribunal was satisfied that there has been no change in the pattern of care for [the child] and that the care percentages for Mr Lepley and Mrs Lepley should remain unchanged.

DECISION

The decision under review is affirmed.