Longfield and Longfield (Child support)
[2024] ARTA 217
•13 November 2024
Longfield and Longfield (Child support) [2024] ARTA 217 (13 November 2024)
Applicant/s: Ms Longfield
Respondent: Child Support Registrar
Other Parties: Mr Longfield
Tribunal Number: 2024/BC028227
Tribunal: Member S Hoffman
Place:Perth
Date:13 November 2024
Decision:
The Tribunal sets aside the decision under review and in substitution decides as follows:
The care determinations in place up to 18 October 2023 for [Children 2-4] were revoked on 18 October 2023.
From 19 October 2023 to 14 November 2023, Ms Longfield provided no care for [Children 2-4] and Mr Longfield provided 100% care of their care.
The care determinations then in place for [Children 2-4] were revoked on 14 November 2023.
From 15 November 2023 to 12 March 2024, Ms Longfield provided 35% of the care of [Children 2-4] and Mr Longfield provided 65% of their care.
The care determinations then in place for [Children 2-4] were revoked on 12 March 2024.
From 13 March 2024 to 18 April 2024, Ms Longfield provided no care for [Children 2-4] and Mr Longfield provided 100% care of their care.
The care determinations then in place for [Children 2-4] were revoked on 18 April 2024.
From 19 April 2024, Ms Longfield provided 35% of the care of [Children 2-4] and Mr Longfield provided 65% of their care.
There was no change in the care for [Child 1] during the period considered in this review. From 19 October 2023, Ms Longfield continued to provide 90% of the care of [Child 1] and Mr Longfield continued to provide 10% of his care (see review number 2024/BC028253).
CATCHWORDS
CHILD SUPPORT – changes to percentages of care – separate applications and decision for oldest child and younger children – younger children live with father full-time when mother undergoes treatment – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
The Tribunal
On 10 July 2024, Ms Longfield lodged an application for review of a decision made by Services Australia – Child Support (Child Support) with the Administrative Appeals Tribunal (AAT).
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The decision under review
On 16 November 2023, based on Child Support records, Mr Longfield contacted Child Support regarding a change in care of the children, [Children 1-4].
On 27 April 2024, a Child Support officer decided that Mr Longfield provided 100% care of the four children from 2 November 2023, as notified on 16 November 2023 (the original decision).
On 29 April 2024, Ms Longfield lodged an objection to the original decision.
On 13 June 2024, an objections officer from Child Support decided that there had been no change in the care of [Child 1] and that Ms Longfield and Mr Longfield each continued to provide 50% of his care. In respect of the other three children, the objections officer decided that Mr Longfield had 100% care of them from 19 October 2023, as notified on 16 November 2023 (the objection decision).
Ms Longfield lodged an application for review of the objection decision with the Tribunal.
On 13 November 2024, Ms Longfield and Mr Longfield attended a hearing conducted via MS Teams audio (equivalent to conference telephone) and gave affirmed evidence.
The Tribunal had before it two bundles of documents provided by Child Support, numbered 1 to 834 and 835 to 995, copies of which had been provided to Ms Longfield and Mr Longfield prior to the hearing. Ms Longfield had provided a written submission, numbered A1, a copy of which was provided to Mr Longfield before the hearing.
Both parties provided further submissions the day before the hearing. Parties are requested to provide documents at least 14 days before a hearing to allow time for the documents to undergo privacy checks, and to be numbered and exchanged with the other party in good time before the hearing. The Tribunal discussed these late submissions with the parties and they both agreed that they did not need to be accepted as written submissions. It was of course open to the parties to talk about the content of what they had provided the day before the hearing, during the hearing. Ms Longfield did read from one of the documents she had sent into the Tribunal the previous day.
The Tribunal was satisfied that neither party was denied procedural fairness in relation to the documents provided the day before the hearing.
A second matter was also heard on 13 November 2024, Tribunal number 2024/BC028253 about the care of [Child 1] from 12 October 2022. The Tribunal has written a separate decision for that matter.
ISSUES
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) Act 1988.
The issue which arises in this case is whether there was a change in care of the children on or around 19 October 2023, and if so, what was the percentage of care provided by each of Ms Longfield and Mr Longfield for the children from then on.
CONSIDERATION
Legislation
Section 50 of the Act requires Child Support to determine a person’s percentage of care during a care period, if Child Support is satisfied that the person has had, or is likely to have, a pattern of care during the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child that Child Support is satisfied that the responsible person has had, or is likely to have, during the care period.
If a parent or non-parent carer has had no pattern of care during a care period, section 49 of the Act requires that a determination is made that the percentage of care was nil.
The legislation provides for existing percentage of care determinations to be revoked (sections 54F, 54G and 54H of the Act) and replaced by new percentage of care determinations (sections 49 and 50 of the Act).
A care period is defined in the Act as being an appropriate period having regard to all the circumstances.
Evidence and consideration of evidence
The second matter heard on 13 November 2024, Tribunal number 2024/BC028253, was about the care of [Child 1] from 12 October 2022. [Child 1] is the oldest of the four children and is 17 years old. When reviewing that matter, the Tribunal determined the percentages of care for [Child 1] from 12 October 2022. The decision for this review with regard to [Child 1]’s care is consistent with that.
According to court orders dated 5 July 2023, the three youngest children live with Mr Longfield and spend time with Ms Longfield as set out in the orders. Child Support have worked out that based on the orders, Mr Longfield provides 65% care of the three youngest children and Ms Longfield provides 35% of their care. This split is not contested.
The parents agreed that on occasion, the mother has entered treatment for her mental health. At these times, the three younger children live with Mr Longfield who provides 100% of their care.
The period from 19 October 2023 to 15 November 2023
On 16 November 2023, Mr Longfield contacted Child Support to advise that Ms Longfield had been hospitalised. According to notes made by a Child Support officer, he wanted to claim a one-off block of 100% care to him for all the children from 19 October 2023 to 15 November 2023.
Mr Longfield subsequently clarified that he was requesting that temporary care change for the three younger children, not for [Child 1].
Ms Longfield agreed that she was hospitalised on 19 October 2023. She said that she was discharged from hospital on 8 November 2023 and that the next date she was due to look after the three youngest children was from 15 November 2023. The Tribunal finds that the previous pattern of care was resumed from 15 November.
The Tribunal observes that when he contacted Child Support on 16 November 2023, based on Child Support records, Mr Longfield made it very clear that he wanted the previous care pattern of 65/35 to be recorded by Child Support as resuming from 15 November 2023. Child Support did not record that the 65/35 pattern of care resumed from 15 November 2023.
The period from 12 March 2024 to 18 April 2024
The Tribunal notes that Mr Longfield spoke with a Child Support officer on 20 March 2024 and advised that Ms Longfield had been in a mental health institution from 13 March 2024 and he had been providing 100% of the children’s care from then.[1] Child Support rang Ms Longfield on 20 March 2024 and she confirmed during that call that she was in hospital.[2]
[1] Page 456 of the Child Support papers
[2] Page 458 of the Child Support papers
There was contact between Ms Longfield and Child Support on 28 and 29 April 2024. According to Child Support records, on both occasions she said she had 35% care of the three younger children.
At the hearing, both parents agreed that Ms Longfield had 35% care of the three younger children from 15 November 2023, until she was readmitted to hospital in March 2024, and that the period of her hospitalisation was 12 March 2024 to 18 April 2024. After that period, she resumed having 35% care of the children.
The Tribunal notes that in March 2024, Mr Longfield told Child Support that Ms Longfield had been hospitalised on 13 March 2024 and that he had been providing 100% care of the three younger children from then. At the hearing, Ms Longfield stated that she was hospitalised on 12 March 2024. There is then, a minor discrepancy with the dates. As Mr Longfield contacted Child Support in March 2024 and told them he had 100% care of the three younger children from 13 March 2024, the Tribunal will rely on that record.
Therefore the Tribunal determines that the care percentages for the three younger children from 19 October 2023 are as follows:
Table 1
Ms Longfield Mr Longfield
Care up to 18 October 2023 35% 65%
From 19 October 2023 to 14 November 2023 nil 100%
From 15 November 2023 to 12 March 2024 35% 65%
From 13 March 2024 to 18 April 2024 nil 100%
From 19 April 2024 going forward 35% 65%
Consistent with the Tribunal’s determination in 2024/BC028253, from 19 October 2023, Ms Longfield provided 90% of [Child 1]’s care and Mr Longfield provided 10%.
Revocation of previous care determinations and application of new percentage of care determinations
The Tribunal is satisfied that Child Support were informed in a timely fashion of the changes in care.
In light of the foregoing, the Tribunal finds that the care determinations in place for the three younger children are to be revoked on 18 October 2023, 14 November 2023, 12 March 2024 and 18 April 2024, and the new care percentages are to be applied in accordance with Table 1.
There were no changes to the care percentages in relation to [Child 1] from 18 October 2023. As set out in the Statement of Reasons for review number 2024/BC028253, Ms Longfield provided 90% of his care and Mr Longfield provided 10% from 12 October 2022.
DECISION
The Tribunal sets aside the decision under review and in substitution decides as follows:
The care determinations in place up to 18 October 2023 for [Children 2-4] were revoked on 18 October 2023.
From 19 October 2023 to 14 November 2023, Ms Longfield provided no care for [Children 2-4] and Mr Longfield provided 100% care of their care.
The care determinations then in place for [Children 2-4] were revoked on 14 November 2023.
From 15 November 2023 to 12 March 2024, Ms Longfield provided 35% of the care of [Children 2-4] and Mr Longfield provided 65% of their care.
The care determinations then in place for [Children 2-4] were revoked on 12 March 2024.
From 13 March 2024 to 18 April 2024, Ms Longfield provided no care for [Children 2-4] and Mr Longfield provided 100% care of their care.
The care determinations then in place for [Children 2-4] were revoked on 18 April 2024.
From 19 April 2024, Ms Longfield provided 35% of the care of [Children 2-4] and Mr Longfield provided 65% of their care.
There was no change in the care for [Child 1] during the period considered in this review. From 19 October 2023, Ms Longfield continued to provide 90% of the care of [Child 1] and Mr Longfield continued to provide 10% of his care (see review number 2024/BC028253).
| Date of hearing: | Wednesday, 13 November 2024 |
| Representative for the Applicant: | Not applicable |
| Representative for the Other party: | Not applicable |
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