Lineker and Lineker (Child support)

[2023] AATA 2935

Lineker and Lineker (Child support) [2023] AATA 2935 (11 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025682

APPLICANT:  Mr Lineker

OTHER PARTIES:  Child Support Registrar

Ms Lineker

TRIBUNAL:Senior Member S Trotter

DECISION DATE:  11 August 2023

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 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. As relevant to this application, Mr Lineker and Ms Lineker are parties to a child support case registered with Services Australia – Child Support (Child Support) from 20 February 2017 in relation to financial support to be provided for [Child 1] (born 2012) and [Child 2] (born 2013) (the children). The application concerns a single decision of Child Support about the recorded care for the children utilised in calculation of the child support liability.

2. From 25 June 2021, the pre-existing percentages of care applying in the child support case for children were 100% to Mr Lineker and 0% to Ms Lineker.

3. On 11 September 2021[1], Mr Lineker advised that there was a change in the care position of the children from 1 September 2021 pursuant to a court order dated 25 August 2021. Mr Lineker advised that the children were staying with Ms Lineker, 50% of the time, at her parents’ house, as required by the court order. He further noted that he did not feel if was fair that Ms Lineker be reflected as having 50% care because the care was not occurring at her house and her parents were supervising.

   [1] The objections officer states that the care change was notified by Ms Lineker on 1 September 2021. However, Child Support’s records, at page 87 of Exhibit 1, suggest that Mr Lineker first notified Child Support of this change. In any event Child Support became aware of the change of care within 28 days of it occurring.

4. On 11 September 2021, Child Support decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 50% to Mr Lineker and 50% to Ms Lineker from 1 September 2021.

5. On 31 August 2022, Mr Lineker objected to this decision and, on 9 December 2022, a Child Support objections officer disallowed the objection.

1. On 27 February 2023, Mr Lineker lodged an application with the Tribunal seeking an independent review of Child Support’s decision stating:

   The court orders state that the children should not be around any person on drugs, including my ex-wife. I removed them from her care dud to her ice problems. CSA reissued the objection letter dated 09/12/22 to me today, I did not receive the first letter.

1. The hearing of the application was held on 10 August 2023. Mr Lineker and Ms Lineker both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Lineker and Ms Lineker and the documentary material provided by Child Support to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 391), documents provided by Mr Lineker prior to hearing (marked Exhibit A, pages 1 to 15) and documents provided by Ms Lineker prior to hearing (marked Exhibit B pages 1 to 21). Copies of all documents were exchanged with each party.

3. There are a number of background circumstances of understandable importance to both Mr Lineker and Ms Lineker which were raised in evidence which are not relevant to the issues before the Tribunal. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

RELEVANT LEGISLATION

10.  The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act1988. Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

11.  The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

12.  The issues to be determined by the Tribunal based on the relevant legislative provisions are as follows:

(a)Are the pre-existing percentage of care determinations of 100% for Mr Lineker and 0% for Ms Lineker as at 1 September 2021 to be revoked? And, if so,

(b)What are the new percentage of care determinations for Mr Lineker and Ms Lineker? And,

(c)What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

CONSIDERATION

13.  It is not in dispute between Mr Lineker and Ms Lineker that the previous care arrangements for the children changed pursuant to an order of 25 August 2021 which included as follows:[2]

[2] Page 57 of Exhibit 1

1.    …(“the children”) live with each party on a week about basis to coincide with the Father’s work schedule and with the Mother’s time to be supervised at all time by an agreed supervisor, with changeover to occur on each Wednesday at the conclusion of school.

2.    That for the purposes of the Mother’s supervised time such time shall not take place at the Mother’s residence.

3.    That for the purposes of these Orders, the “agreed supervisor” may be [Ms A], [Mr B], [Mr C] or any other person agreed in writing between the Mother and the Father from time to time.

Drug Testing

4.    That 48 hours prior to the Mother’s time with the children in accordance with order 1 and up until the appointment of an ICL in accordance with order 5 the Mother shall undertaken a supervised urine drug screen testing through [Pathology] with a copy of the result of such drug screen testing to be provided to the other party’s solicitor.

….

7.    It is Ordered that the Mother and Father shall not consume illicit drugs during times they each have the care of the children.

14.  It is not in dispute that a subsequent court order, of 22 June 2022, provides for Ms Lineker to continue to spend supervised time with the children on a week about basis until such time as she ‘is able to provide a [Pathology] hair follicle test which does not test positive for illicit substance or non-prescribed medication’, and that the children will then spend increasing unsupervised time with Ms Lineker after 1 September 2022 if hair follicle tests continue to show no use of illicit substances and/or non-prescribed medication. It is further in dispute that despite these provisions in the order of 22 June 2022, Ms Lineker has not yet passed a hair follicle test for that unsupervised time to commence and that the children’s time with her continues to be supervised by her parents (or brother).

15.  Mr Lineker said that his position is that Ms Lineker cannot be caring for the children because as per the court order she cannot be looking after the children while she is taking drugs. It follows that if she cannot pass a drug test, she is on drugs and can’t be looking after the children (pursuant to the court order) and therefore it is her parents that are looking after the children.

16.  Ms Lineker’s evidence to the Tribunal was that from 1 September 2021, she and Mr Lineker had equal time with the children, 50/50. Her time with the children was spent at her parents’ place. Everywhere she went with the children, her mother, her father or her brother were with her. However, she was doing school drop off and school pick up. She was cooking for the children (sharing with her parents as they were all living in her parents’ house). She was caring for them.

17.  The Tribunal asked Ms Lineker the extent to which she provides the children with accommodation, clothing, food, education, health care, emotional support, transport, supervision, etc. from 1 September 2021. Ms Lineker confirmed they were all living together with her parents and her brother at her parents’ home. In the week she was not living with the children, she would return to her own home. Then on the Wednesday, she would join with her mother or father and collect the children from school and then spend the week with the children at her parents’ place. She moved all of their children’s clothes from her place to her parents’ place. They used her car and she contributed to the cost of the food. Her source of income was Centrelink payments. She would share grocery shopping expenses with her parents. She would pay for any expenses of the children that arose while they were in her care. If she was short one week, her parents might loan her some money and she would pay them back. Her parents would buy things for the children also but that was just as per what would normally happen as grandparents. She paid for things like medical expenses for the children and also, for example, horse-riding lessons for her daughter. She would get the children ready for school and ready for bed and all the normal sorts of things involved in caring for the children.

18.  Ms Lineker contends that she still cares for the children 50% of the time and that should be recognised, that she is supervised by her parents but she still provides the care.

19.  Mr Lineker responded that if her parents were supervising Ms Lineker, they would be with Ms Lineker 100% of the time, not just when she had the care of children. Mr Lineker also stated that any contributions she was making financially to the care of the children, that was from the money he paid as child support or from the government. Mr Lineker said he paid for the entirety of [Child 1]’s counselling (necessary because of the issues with Ms Lineker) and tuition fees, which were not accepted as in lieu of child support by Ms Lineker, and, further, Ms Lineker withdrew [Child 1] from tuition despite him continuing to pay.

20.  Mr Lineker stated further that the court orders do not say anything about 50/50 care, and rather say that the children live with the father and spend time with the mother, they were living with the grandparents not the mother – the 25 August 2021 court order states quite clearly that the children were staying at the grandparents’ and not at Ms Lineker’s place. Mr Lineker said that it is irrelevant that Ms Lineker was also staying there at the same time, but they were living at their grandparents’ place. He said he should not be penalised in circumstances when Ms Lineker continues to fail the drug test, and also at times fails to even do drug tests as required, which are paid for by him.

21.  Mr Lineker further states that the new court orders of 22 June 2022 were not actioned promptly by Child Support.

Issue 1: Are the pre-existing percentage of care determinations of 100% for Mr Lineker and 0% for Ms Lineker as at 1 September 2021 to be revoked?

22.  Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked.

23.  Care percentages to be determined are to be calculated having regard to the actual care a person has had, or is likely to have, during a care period. Section 54A 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 a child was, or is likely to be, in the care of a person. Relevant considerations, therefore, are both the care likely to occur and, where relevant, the actual care that has occurred.

24.  A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

25.  Section 54A 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 a child was, or is likely to be, in the care of a person.

26.  The term care is not defined in the child support legislation. The decision of Federal Magistrate Hughes (as she then was) in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 provides guidance, which has been adopted in the Guide at Topic 2.2.1 as follows:

In my view, in determining whether and to what extent a person has care of a child for the purpose of Child Support (Assessment) Act 1989 and 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?

27.  The Tribunal accepts Ms Lineker’s evidence that during the time the children spent with her from 1 September 2021 pursuant to the 25 August 2021 court order, Ms Lineker was providing accommodation, clothing, food, transport, access to education, health care, extra curricular activities and emotional support to the children. Further, the Tribunal accepts Ms Lineker was paying towards the costs of the children during the time they spent time with her. The Tribunal accepts as Mr Lineker submitted, that the source of Ms Lineker’s funds was either from child support paid by him or government benefits however the position remains she was paying for costs of the children from those funds, which were her funds. There is no evidence to suggest that the children provided for their own needs during that time or that the children are financially independent or financially supported from another source during their time with Ms Lineker other than some possible contributions from Ms Lineker’s grandparents not inconsistent with their role as grandparents.

28.  Having considered the matters suggested by Polec and the Guide, the Tribunal is satisfied that when the children were spending time with Ms Lineker from 1 September 2021 pursuant to the 25 August 2021 court order, Ms Lineker was caring for the children. The Tribunal in reaching this conclusion does not in any way diminish Mr Lineker’s concerns about that care being supervised and, further, about Ms Lineker’s continued failure to pass drug tests, meaning that her time with the children continues to be under supervision. However, the Tribunal is not satisfied that the fact that the care is unsupervised changes that Ms Lineker is actually providing care. Consistent with this conclusion the Guide recognises that a person may be determined to have care of a child even if not living with them for a period of time in circumstances where, for example, care has been delegated and someone else is supervising the child. This is recognised in the Guide at Topic 2.2.1 where it is stated:

Additionally in limited circumstances, a person may have care of a child who is not living with them for a period of time. For example, a person can provide care for a child who is at boarding school, in hospital, or in separate accommodation. However, a person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent or a schoolteacher) does not provide care. Consideration is given to who has responsibility for making arrangements for and decisions about, the child’s welfare, as well as who is meeting the child’s costs, rather than just the accommodation arrangements themselves. The Registrar will give weight to statements from both parents and any non-parent carer.

29.  The Tribunal is not bound by the provisions of the Guide; rather they are a relevant consideration for the Tribunal to take into account when considering the legislative provisions if not inconsistent with the legislation. The Tribunal considers the guidance provided by the Guide in relation to this issue not inconsistent with the legislation and of assistance in interpreting the legislation in these circumstances. The Tribunal is satisfied that, consistent with the Guide, even if the children were being supervised by their grandparents, in the circumstances of the evidence of Ms Lineker nonetheless making arrangements for the children’s welfare and undertaking usual duties of caring for children such as dropping them to and from school, preparing meals, arranging their clothing, etc. and largely meeting their costs during this time from her money (albeit derived from child support or government benefits), means that Ms Lineker had care of the children during the time she spent with them, albeit supervised by her parents (or brother).

30.  The Tribunal is satisfied that the children were spending each second week (from Wednesday) with Ms Lineker from 1 September 2021. The Tribunal accepts that this care was supervised by Ms Lineker’s parents including because Ms Lineker either continued to fail drug tests or not take drug tests as required. The Tribunal further notes Mr Lineker’s submission that the court order provides that neither parent shall consume illicit drugs during times they have care of the children and that it follows, if Ms Lineker was not passing the drug test she was consuming illicit drugs, and therefore could not be caring for the children during the relevant times such that it was her parents, not her, that was caring for the children. The Tribunal accepts the proposition that if Ms Lineker was failing drug tests, she was likely consuming illicit drugs however it does not conclusively mean that Ms Lineker was consuming illicit drugs during the times she was with the children. Even if she was, the evidence is that the children were nonetheless with her and her parents 50% of the time and the Tribunal is satisfied that any supervision by her parents, was delegated supervised care to her parents but the children still remained in Ms Lineker’s care at these times, as is contemplated by the Guide.

31.  The Tribunal considers the appropriate care period to be adopted is the 12-month period from 1 September 2021 and that Ms Lineker was having 50% care of the children from that time for the reasons canvassed.

32.  The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

33.  Section 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, and section 54G does not apply and section 51 does not apply or no longer applies.

34.  Section 55C contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

35.  Section 54G provides that a care determination must be revoked if a parent was to have at least regular care pursuant to a pre-existing percentage of care determination and the other parent was to have more than 0% care, they have no care or less than regular care (subsection 5(2) defines regular care as being care between 14% and 35%) despite the other responsible person making care available and the change in care was notified within a reasonable period of time. Ms Lineker was not to have more than 0% care pursuant to the pre-existing recorded percentages of care. Section 54G therefore does not apply.

36.  Care of 50% to Mr Lineker and 50% care to Ms Lineker does not correspond with the pre-existing percentage of care determinations recorded by Child Support of 100% to Mr Lineker and 0% to Ms Lineker. A change in care to 50% to Mr Lineker and 50% care to Ms Lineker would change each parent’s cost percentage pursuant to the table in section 55C. Further, section 51 does not apply.

37.  The existing percentages of care of 100% to Mr Lineker and 0% to Ms Lineker are therefore required to be revoked pursuant to section 54F.

Issue 2: What are the new percentage of care determinations for Mr Lineker and Ms Lineker?

38.  Percentage of care determinations are required pursuant to subsection 50(2). The Tribunal determines that Mr Lineker’s percentage of care for the children is 50% and Ms Lineker’s percentage of care for the children is 50% as concluded by the Tribunal in paragraph 31 of these Reasons.

Issue 3: What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

1. Pursuant to subsection 54G(2), the revocation of each percentage of care determination takes effect at the end of the day before the day on which the previously established pattern of care ceased, that is 31 August 2021.

2. It is then necessary to determine from when new percentage of care determinations are to apply.

3. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is, the day immediately after revocation of the previous percentage of care determinations. Therefore, new percentage of care determinations of 50% to Mr Lineker and 50% to Ms Lineker apply from 1 September 2021.

Conclusion

1. As this is the same decision as that of the objections officer, the decision under review will be affirmed.

OTHER MATTERS

43.  As discussed at hearing, the Tribunal acknowledges Mr Lineker’s understandable concerns about the circumstances relating to the care of the children, given Ms Lineker’s continued failure to pass court ordered drug tests, or failure to undertake the court ordered drug tests. However, as also discussed at hearing, the Tribunal’s role is limited to considering the care percentages to be recorded for the purposes of the child support case based on the child support legislation and evidence. For the reasons canvassed, the Tribunal has concluded that despite the understandable concerns of Mr Lineker the care is to be recorded as 50% to Ms Lineker.

44.  The legislative scheme deals with any subsequent change to care by requiring further notification to be made to Child Support of such changes, and Child Support then is tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision. As discussed with Mr Lineker at hearing, it is a matter for Mr Lineker if he wishes to follow up his notification of , and Child Support’s decision in relation to, a subsequent change of care following the 22 June 2022 court order. Any such subsequent change is not before the Tribunal in relation to this application for review.

DECISION

The decision under review is affirmed.