McMillan and Farrow (Child support)

[2023] AATA 273

McMillan and Farrow (Child support) [2023] AATA 273 (6 February 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024783

APPLICANT:  Mr McMillan

OTHER PARTIES:  Child Support Registrar

Ms Farrow

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  06 February 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 – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 is about a change to the percentage of care determinations for Mr  McMillan and Ms Farrow in respect of their child [Child 1] (born February 2006).  Mr McMillan and Ms Farrow are the parents of other children, however, this matter relates to [Child 1] only.

2. From 22 May 2012 the child support assessment reflected Mr McMillan as having 0 per cent care and Ms Farrow as having 100 per cent care of [Child 1].

3. On 8 January 2021 Mr McMillan notified the Child Support Agency of a change to the care arrangements stating that he provides 100 per cent care and Ms Farrow provides 0 per cent care of [Child 1] from 28 February 2020.

4. On 29 March 2021 the Child Support Agency made the decision to refuse the change of care as notified by Mr McMillan.

5. On 16 June 2022 Mr McMillan objected to this decision and on 1 September 2022 the Child Support Agency disallowed the objection (the objection decision).

6. On 5 October 2022 Mr McMillan applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 15 December 2022.  Mr McMillan and Ms Farrow gave evidence on affirmation by Microsoft Teams audio.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (240 pages).

ISSUES

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

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr McMillan told the Tribunal there was no court order or written agreement in place relating to the care of [Child 1].  Mr McMillan said care of [Child 1] changed on 31 August 2020 following an incident with Ms Farrow and [Child 1] had then decided he no longer wished to live with his mother.  Mr McMillan said [Child 1] had asked to move to his home in [Town 1] and he had been providing 100 per cent care since then.

2. Mr McMillan pointed out that prior to the incident between [Child 1] and Ms Farrow he had already been providing shared care of [Child 1].  Mr McMillan said from around August 2019 [Child 1] had been living with him on a week about basis.

3. Mr McMillan said he had provided considerable evidence, including statutory declarations, letters and text messages, which supported his level of care of [Child 1].

4. The Tribunal notes in evidence statutory declarations from [Ms A], [Ms B], [Ms C] ([Child 1’s] girlfriend) and [Child 1] as well as third-party statements from [Ms D] and [Ms E] in relation to the care of [Child 1].

5. The statutory declaration from [Ms B], who Mr McMillan said is a friend, is dated 20 June 2022 and declares that [Child 1] has been living on a full-time basis with his father and stepmother for the past three to four years.  The statutory declaration from [Ms A], Mr McMillan’s partner, is dated 23 June 2022 and declares that [Child 1] has been living in their home full-time since August 2019.  [Ms C], [Child 1’s] girlfriend, states she has been dating him since August 2020 and has only known his home to be with his father.  As [Child 1] is a child of the assessment the Tribunal considers it inappropriate to take into account his statutory declaration in this matter.

6. The statement from [Ms D], [Child 1’s] paternal grandmother, is dated 22 June 2022 and states that he has been living with his father full-time since August 2019.  The statement from [Ms E], the daughter of Mr McMillan’s partner, also states that [Child 1] has been living with his father full-time since August 2019.

7. The Tribunal further notes in evidence what appears to be text message exchanges between Ms Farrow and [Child 1] which took place on 26 March 2021, 15 April 2021, 31 May 2021 and 6 June 2021.  These text messages refer, relevantly, to [Child 1] retrieving belongings from his mother’s home.

8. Ms Farrow told the Tribunal there were court orders relating to the care of [Child 1], however, these orders were no longer being followed.  Ms Farrow said care of [Child 1] had not changed on 31 August 2020 and he remained in her 100 per cent care until moving in with Mr McMillan around 30 May 2022.

9. Ms Farrow said [Child 1] did start spending more time with his father in 2020.  Ms Farrow explained that due to restrictions associated with the COVID-19 pandemic [Child 1] was being home-schooled in 2020.  Ms Farrow said because she was an essential worker her mother would assist in caring for [Child 1] during the day but [Child 1] also visited his father on occasions as Mr McMillan was not working.  Ms Farrow said these visits were sporadic and [Child 1] would usually end up playing on the Xbox.

10. Ms Farrow said at one point Mr McMillan had told the Child Support Agency she had no care of [Child 1] from 2018.  She said this was not true.  Ms Farrow said that Mr McMillan later altered his version of events and said she had no care of [Child 1] from 2019.  She said this was also not true.  Ms Farrow said the story Mr McMillan was telling varied.

11. The Tribunal notes that in his initial notification to the Child Support Agency Mr McMillan advised that care of [Child 1] changed from 28 February 2020.  During a subsequent conversation with a child support officer on 16 June 2022 Mr McMillan is recorded as stating that [Child 1] had been in his 100 per cent care from 15 August 2018 and Ms Farrow had not seen [Child 1] for the last four years.  In a further conversation with a child support officer on 29 August 2022 Mr McMillan repeats that he has had [Child 1] in his 100 per cent care since 2018.

12. During the hearing the Tribunal sought clarification from Mr McMillan in relation to these differing dates and he was very certain he began having 100 per cent care of [Child 1] from 31 August 2020.  Mr McMillan said this was the exact date care of [Child 1] changed.  Mr McMillan reiterated that prior to this change in care he was having shared care of [Child 1] from around August 2019.

13. Ms Farrow said she had provided a statement from her father in support of her care of [Child 1] as well as other evidence showing she was his primary carer in 2020.  Ms Farrow said one email, from [College 1], was received because she was the primary parental contact for school-related matters after enrolling [Child 1] at the school in 2019.

14. The Tribunal notes in evidence a third-party statement from [Relative A] dated 27 July 2022. It states that Ms Farrow has had full custody of her three children, including [Child 1], since birth. [Relative A] also states that [Child 1] moved out around 28 May [2022].

15. The Tribunal also notes in evidence emails from [Agency 1] dated 23 May 2019, 27 November 2020 and 18 December 2020 in relation to [Child 1’s] involvement in a [related youth] program.  These emails state, “If you are receiving these emails it is because the [youth association] your child was registered with has listed your email address as a contact point”.  The Tribunal further notes an email dated 3 August 2020 addressed to Ms Farrow from a teacher at [College 1] in relation to a disciplinary matter involving [Child 1].  A further email from the college, dated 4 August 2020, is a request for attendance at a post-suspension meeting.

16. Mr McMillan argues that care of [Child 1] changed from 31 August 2020 when he began providing 100 per cent care.  Mr McMillan was very clear about this date.  Statutory declarations and third-party statements provided by Mr McMillan refer to him having 100 per cent care from August 2019.  The text message exchanges indicate that [Child 1] was not living with Ms Farrow in 2021 but do not confirm a date when care changed.  Ms Farrow has told the Tribunal there was no change in care for [Child 1] until 30 May 2022 although she acknowledged that [Child 1] did spend more time with Mr McMillan in 2020.  The emails from [College 1] in August 2020 regarding [Child 1] are only addressed to Ms Farrow.  This suggests she was the primary contact at the school but does not confirm the care arrangement in place at the time.

17. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences.  Given the completely conflicting views of the parents the Tribunal cannot be satisfied that a change in care occurred on, or around, 31 August 2020.

18. The Tribunal is unable to find, based on the evidence provided, there was a change to the pattern of care for [Child 1] such that the existing patterns of care are incorrect.

DECISION

The decision under review is affirmed.