Lyon and Morden (Child support)

[2024] AATA 1883

Lyon and Morden (Child support) [2024] AATA 1883 (10 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/PC027529

APPLICANT:  Ms Lyon

OTHER PARTIES:  Child Support Registrar

Mr Morden

TRIBUNAL:Member A Ryding

DECISION DATE:  10 May 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Lyon’s application for a child support assessment is accepted from 12 May 2023 on the basis that Ms Lyon had 100% care of the child [Child 1].

CATCHWORDS

CHILD SUPPORT – percentage of care – provision of ongoing daily care – acceptance of application for a child support assessment – commencement date for child support liability – decision under review set aside 

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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 is an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision of Services Australia – Child Support (Child Support) regarding the refusal of an application by Ms Lyon for a child support assessment.

2. The applicant, Ms Lyon, and one of the other parties to this application, Mr Morden, are the parents of [Child 1] (born [in] June 2017).

3. On 1 May 2024, the Tribunal conducted a hearing in this matter by MS teams audio. Ms Lyon and Mr Morden participated, Child Support did not participate and instead relied upon its documents.  

4. Before the Tribunal were hearing papers supplied by Child Support, numbered 1 to 56 (the hearing papers). Mr Morden did not have the documents with him but elected to proceed with the hearing. Ms Lyon and Mr Morden provided evidence on affirmation at the hearing. 

5. Following the hearing, on 10 May 2024 Child Support provided informally additional documents and these are marked C1 to C7.

6. The Tribunal has had regard to all of the documents provided to it that appear relevant to the matters in issue, and to the evidence provided by Ms Lyon and Mr Morden. Reference below is made only to the documents and evidence relevant to this decision.

7. [In] February 2022 orders were made by the Family Court of Western Australia (the Court Orders) (folio 22). The Court Orders provided that [Child 1] and another child of Ms Lyon, [Child 2], were to live with [Mr A] and [Ms B], the children’s maternal grandparents. Mr Morden and the children’s grandparents would have joint parental responsibility for [Child 1]. Ms Lyon was to spend time and communicate with [Child 1] on such terms as agreed by the grandparents and Mr Morden.

8. On 12 May 2023, Ms Lyon applied for a child support assessment in respect of [Child 1], on the basis that care was 100% with her and 0% with Mr Morden, from 1 January 2023 (folio C2).

9. On 29 June 2023, Child Support made a decision to reflect care of [Child 1] as 0% to Ms Lyon and 0% to Mr Morden and therefore rejected Ms Lyon’s application for a child support assessment (folio 26).

10. Ms Lyon objected to that decision on 26 July 2023 (folio 32). The objection stated:

I live with my children at my parents house. [Mr Morden] has not seen the child since December 2022. I have full care of [Child 1]. I have a good working relationship with [Child 2]’s dad and we co parent very well together. [Mr Morden] is being difficult. at the beginning of last year, I went into a treatment rehabilitation centre for a brief while. my parents looked after my children. but now I am transitioning with my parents I buy the children's clothes; I contribute to rent and bills. I am actively looking for a rental and I need my child support payment to support this. family court was highly stressful for all parties, and everyone just ended letting it go through to final orders until I got back on my feet. [Mr Morden] does not play an active role in the Childs life as I previously mentioned.

1. In his response on 15 December 2023, Mr Morden told Child Support (folio 42) that:

   he has been making private payments to the grandparents and he would prefer

   they registered a case as they continued to ask for more money, so he stopped making payments.
   [Mr Morden] advised it would be unfair and unjust to backdate the care as the children are in the

   grandparent s care and he has been making payments to them directly. [Ms Lyon] may have recently moved in with her parents, but she is unable to care for the children.

2. On 7 February 2024, Child Support provided its decision on that objection (the Objection Decision) (folio 14). Ms Lyon’s objection was disallowed, and her application for a child care assessment was rejected.

3. On 19 February 2024, Ms Lyon applied to the Tribunal for review of the Objection Decision. Ms Lyon’s application stated (verbatim):

   In the Details off Objection Decision dated 7th February 2024 the part dated On 21st November  2023, [Mr Morden] provided a verbal response,[redacted]. He states he was making private payments to my parents, which was correct, however he stopped those payments on the 25th May 2023 as he had asked for a case to be registered with Child Support. He has not paid any monies since that date. He did not offer to reduce payments until the case was settled. My parents have had to cover the non payments since then. He has misled the Child Support by not mentioning he is not been paying any money since then and they maybe under the impression he was.

   He also [redacted] states my parents were asking for extra money. They have only asked for help with school uniform.

   In his statement he advised it would be �?�¢�??�??unfair and unjust to backdate any monies�?�¢�??�?? he has not paid. Unjust and unfair to who! My parents accepted he was going to stop paying money as he wanted a registered case, and in the attached text he states he understands that back payments will need to paid.

   Centrelink state my percentage of care to 0%, the same as Mr Morden. However I spend a large amount of time and effort with my children and this calculation is very inaccurate. I believe my parents would back this claim as well.

ISSUES

1. The assessment by Child Support and the provision of child support by Child Support are governed by the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. Under section 25 of the Assessment Act, a parent can apply for an assessment of child support if (relevantly for this matter) they apply for both parents to be assessed in respect of the costs of the child and they are not living with the other parent on a genuine domestic basis.

3. Section 30 of the Assessment Act deals with the acceptance of applications for a child support assessment.

4. The issues for consideration in this application are:

   ·      Does Ms Lyon have care of [Child 1] and if so, what percentage of care?

   ·      Should Ms Lyon’s application for a child support assessment be accepted?

   ·      From what date should the child support liability commence?

CONSIDERATION

Issue 1: Does Ms Lyon have care of [Child 1] and if so, what percentage of care?

1. A threshold issue in applying for a child support assessment is whether an applicant has care of the child.

2. In determining the pattern of care parents have for a child, it is usual to look at the pattern of care over a specific care period.  A “care period”[1] is calculated from the day on which the actual care of a child changed and is stated in the Assessment Act to be “such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

   [1] Defined in section 5(1) of the Assessment Act to have the meaning given by paragraph 49(1)(a), subparagraph 49(1)(b)(ii), paragraph 50(1)(a) or subparagraph 50(1)(b)(ii)

3. The Child Support Guide states that it will “generally be a 12-month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12-month periods, unless otherwise advised.”[2] 

   [2] Noting that the Child Support Guide does not have legislative effect and is merely persuasive.

4. The care period is used only for assessing whether there is a pattern of care and, if there is, what that pattern is. It does not set the period over which the care assessment applies.

5. In this case, a 12-month period would be from 12 May 2023 (the date that Ms Lyon applied for a change in care) and the Tribunal finds that this is the most appropriate care period to apply in this matter.     

Care

1. The term “care” is not defined in the Assessment Act or the Registration and Collection Act. Subsection 54A(1) of the Assessment Act states that the Child Support Registrar may determine actual care by reference to the number of nights the Registrar is satisfied the child was, or is likely to be, in the care of the person during the care period.  There are, however, various other methods that can be used to determine actual care.

2. In Polec & Staker & Anor (SSAT Appeal)[3] the Court noted that the objects (or purposes) of the Assessment Act included “that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings”.[4] The Court identified certain factors to take into account when determining whether and to what extent a person has care of a child, which relevantly include:

   ·      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 extracurricular activities?

   ·      To what extent does the person make arrangements for others to meet the needs of the child?

   ·      To what extent does the person pay for the costs of meeting the needs of the child?

   ·      To what extent does the person otherwise provide financial support for the child?

   [3] [2011] FMCAfam 959.

   [4] Subsection 4(2) of the Assessment Act.

3. These factors are reflected in the Child Support Guide (in section 2.2.1). The Child Support Guide also states that Child Support will, in cases of doubt, have regard to the extent to which the person has control of the child, including having overall responsibility for the child and making:

   ·      Major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities.

   ·      Arrangements for others to meet the needs of the child (delegated care).

4. The Federal Court has, in another decision, made it clear that the Tribunal is not limited to considering care up to the point in time of the original care determination. Instead, the Tribunal must consider evidence after the date of notification of the change in care, and up to the date of the Tribunal’s decision.[5]

The evidence

[5] Child Support Registrar v DQFY [2023] FCA 601.

1. The evidence in this matter is as follows.

2. As noted above, the Court Orders provide that [Child 1] and Ms Lyon’s other child, [Child 2], are to live with their maternal grandparents. Mr Morden and the grandparents have joint parental responsibility for [Child 1], and the children are to spend time with their mother as agreed with the grandparents and each child’s father.

3. Ms Lyon told the Tribunal that, on or about 5 December 2022, she moved out of rehab and moved in with her parents, where [Child 1] continues to live.

4. Since then, Ms Lyon and [Child 1] have lived with her parents and Ms Lyon has provided care to [Child 1] as follows: on a typical day, she gets [Child 1] up and makes him his breakfast. They both ride bicycles to his school unless it is raining, when she drops him off. She picks him up from school and, twice a week, they watch her other child play football. She takes [Child 1] to other after school activities, such as the skate park or they have friends over. Where the activity requires payment, Ms Lyon pays. Dinner is made with her parents and they eat as a family. She has a night-time routine with [Child 1] dealing in particular with his reading because he was struggling with it for a while. She then puts [Child 1] to bed.

5. If [Child 1] is sick or if there is an issue, the school calls either Ms Lyon or her mother and both Ms Lyon and her mother are listed as contacts.

6. If [Child 1] needs to go to a doctor or the dentist, Ms Lyon arranges it and takes him. She generally does not have to pay a fee but she pays for prescriptions.

7. Ms Lyon is still trying to get herself back on her feet financially and is on benefits. At the moment, she buys food, and pays for [Child 1]’s activities and his clothes. She pays her parents rent when she can.

8. Ms Lyon was taken to the statement provided by way of email from her parents, which is undated but was provided to Child Support on 22 November 2023 (folio 41). She said she obtained this at Child Support’s suggestion to strengthen the case. Ms Lyon recalled that she asked them to write a statement to say that she was living there and that she looked after the children, and that her father typed it up.

9. The statement says (verbatim):

   We are writing this letter to support [Ms Lyon]’s child support case against Mr Morden. As you are aware from the notes, we have court orders in place for the children to live with us, with [Ms Lyon]’s access at our discretion. [Ms Lyon] has been
   in recovery for two years, one in a rehabilitation centre and one living in the community still attending meetings. This last year she has taken on responsibilities for the care of the children whilst residing at our address since the application date. Mr Morden isn't supportive of [Ms Lyon]’s recovery and tried to make things difficult with the on going court case. We learnt of his decision to walk away from the boys at the end of November 2022 and his last contact was Christmas visit 2022, he has only had contact via FaceTime since. We decided to let the court papers go to final orders, for the safety and wellbeing of the children and to avoid any
   more stress on all parties. [Ms Lyon] and ourselves have a very good working relationship with [Mr C], [Child 2]’s father and all access for [Child 2] is worked out with both [Ms Lyon] and ourselves. [Ms Lyon] is looking to move into her own house shortly and is currently getting her finances in place hence her wanting child support to go directly to her so she doesn't have any contact with Mr Morden.

10. Ms Lyon told the Tribunal that she has been living with her children for over a year and a half and that Mr Morden had not had any contact with his child for all of that time.

11. In his evidence to the Tribunal, Mr Morden conceded that he had no involvement in [Child 1]’s care. He said he did not even know that Ms Lyon had moved in with her parents until Child Support contacted him, and he cannot comment on whether she is providing care.

12. Mr Morden said that he had been making private payments to [Child 1]’s grandparents until the end of May 2023. He said that he had told the grandparents in January 2023 that he wanted them to claim payments via Child Support or Centrelink and that he would be stopping the payments in a couple of months. The grandparents told him that once the children had settled in they would apply for child support.

13. When Mr Morden was paying money to the grandparents, he was paying $150 a week which was intended to cover [Child 1]’s living expenses. He recalled that from time to time they would ask for additional payments, for specific expenses.

The Tribunal’s findings

1. The Tribunal considered Ms Lyon to be a credible witness who was able to recount in detail the care she provides to [Child 1]. The Tribunal accepts Ms Lyon’s evidence and finds that, since December 2022, Ms Lyon has met [Child 1]’s needs in all senses save providing a roof over his head. Ms Lyon has (as per the Court in Polec) provided clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities. 

2. The Tribunal does not know the exact date that Ms Lyon moved in with her parents and it is reasonable to assume that it took a few weeks for Ms Lyon to “find her feet”. The Tribunal also notes that, when Ms Lyon applied for a child support assessment on 12 May 2023, she said the date of the care change was 1 January 2023 (folio 18).

3. The Tribunal therefore finds that from 12 May 2023 Ms Lyon has had 100% care of [Child 1] and Mr Morden has had 0% care.

Issue 2: Should Ms Lyon’s application for a child support assessment be accepted?

1. The Tribunal has found that, from 12 May 2023, Ms Lyon’s care percentage in respect of [Child 1] is 100% and Mr Morden’s is 0%. The Tribunal finds that Ms Lyon meets the relevant criteria in section 29 of the Assessment Act and is therefore entitled to apply for a child support assessment. The Tribunal also finds that the application has been properly made for the administrative assessment of child support for [Child 1].

2. Therefore, pursuant to section 30 of the Assessment Act, Child Support must accept Ms Lyon’s application. 

Issue 3: From what date should the child support liability commence?

1. Section 31 of the Assessment Act provides that, if Child Support accepts an application for administrative assessment, the child support liability arises on the date the application is made. Therefore the child support liability commenced on the date Ms Lyon lodged her application, this being 12 May 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Lyon’s application for a child support assessment is accepted from 12 May 2023 on the basis that Ms Lyon had 100% care of the child [Child 1].