McPherson and Coppock (Child support)

[2023] AATA 3412

McPherson and Coppock (Child support) [2023] AATA 3412 (25 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025933

APPLICANT:  Miss McPherson

OTHER PARTIES:  Child Support Registrar

Mr Coppock

TRIBUNAL:Senior Member S De Bono

DECISION DATE:  25 August 2023

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that from 6 September 2022 Miss McPherson has 50% care and Mr Coppock has 0% care of [Child 1].

(This means the application for review is partly successful.)

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 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 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. Miss McPherson and Mr Coppock are the parents of [Child 1]. There has been a child support assessment in place for [Child 1] since 11 November 2005. From 4 February 2013 the care recorded for [Child 1] was 93% to Miss McPherson and 7% to Mr Coppock. Services Australia (Child Support) has collected child support from Mr Coppock from 10 December 2010.

2. On 12 October 2022 Mr Coppock notified Child Support that there had been a change to the care arrangements for [Child 1]. Mr Coppock notified that [Child 1] was no longer in either parent’s care. On 25 January 2023 Child Support made the decision that the care percentage to be applied to the administrative assessment for each parent was 0% and the Child Support case ended for [Child 1].

3. On 27 January 2023 Miss McPherson lodged an objection to this decision. On 11 April 2023 an objections officer disallowed Miss McPherson’s objection and the care determination of 0% care to her and 0% care to Mr Coppock remained in place.

4. On 12 April 2023 Miss McPherson applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. On 25 August 2023 Miss McPherson and Mr Coppock gave evidence to the tribunal under affirmation during a telephone hearing. The tribunal had before it a bundle of documents (195 pages – referred to as the hearing papers) as well as submissions from Miss McPherson (A1–A23) and from Mr Coppock (B1–B28). The tribunal confirmed with Miss McPherson and Mr Coppock that they had both received these papers. Mr Coppock said he had not received a numbered copy of his submissions but had his original documents with him. Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

ISSUES

1. The issues which arise in this case are:

   • Whether there has been a change to the existing care arrangements for [Child 1].
   • If so, from what date should the existing care determination be revoked?
   • What is the date of effect of the new care determination, if applicable?

LAW AND CONSIDERATION

1. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1]

   [1] [1979] AATA 179.

2. The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

3. Percentage of care determinations are made under section 49 and/or section 50 of the Act. Section 49 of the Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

4. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Government policy, as set out in section 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the care of a child began or changed, and the same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

5. The first issue for the tribunal to consider is whether the existing care determination should be revoked.

Issue 1 – Should the existing care determination be revoked?

1. An existing care determination must be revoked in accordance with section 54F if there is a change to the person’s cost percentage, in accordance with section 54G if a parent has less than regular care and in accordance with section 54H if sections 54F, 54G or 54FA do not apply. Section 54FA applies to a suspension determination before the end of the maximum interim period and is not relevant in this matter.

2. Mr Coppock applied for a change to the existing care for [Child 1] on the basis that he had information that [Child 1] was no longer living with Miss McPherson, but instead was living with Miss McPherson’s mother ([Child 1]’s nan). Miss McPherson disagreed with this.

3. Miss McPherson said there were discussions in around August 2022 that [Child 1] would go and live with Mr Coppock. Miss McPherson said [Child 1]’s behaviour was becoming increasingly challenging. Miss McPherson’s partner [Mr A] had initial text conversations with Mr Coppock about this.[2] However, [Child 1] did not move to live with Mr Coppock, which would have meant moving interstate, because she wanted to remain at her current school.

   [2] Page 14 of the hearing papers.

4. Initially notes in the hearing papers indicate that Child Support were going to refuse the change of care notified by Mr Coppock because there was not enough evidence to support that a change in care had occurred for [Child 1].[3] Child Support then made the decision to accept the care change notified by Mr Coppock.[4]

   [3] Page 39 of the hearing papers.

   [4] Pages 40–41 of the hearing papers.

5. Miss McPherson provided care calendars in which she indicated [Child 1] was in her overnight care for 18 nights out of 30 nights in September 2022, [Child 1] spent 3 nights at school camp and 5 nights with her nan.[5] In October 2022 Miss McPherson’s care calendar shows [Child 1] spent 23 nights in her overnight care, 1 night at a friend’s house and 7 nights at her nan’s house.[6] In November 2022 Miss McPherson’s care calendar indicates [Child 1] was in her care for 26 nights and in her nan’s care for 4 nights.[7] Miss McPherson’s care calendar for December 2022 shows [Child 1] was in her care for 17 nights and in her nan’s care for 11 nights.[8]

   [5] Page 64 of the hearing papers. Four nights of the care calendar for this period are illegible.

   [6] Page 65 of the hearing papers.

   [7] Page 66 of the hearing papers.

   [8] Page 67 of the hearing papers.

6. Mr Coppock did not agree that the care of [Child 1] was in accordance with the care calendars and pointed to contradictory evidence provided by Miss McPherson to him via text messages exchanged between them.

7. Text messages between Miss McPherson and Mr Coppock on 24 September 2022 indicate [Child 1] is living with her nan “right now”, which the tribunal interprets as indicating where [Child 1] was on that day.[9] Miss McPherson said she was on holidays and [Child 1] was staying with her nan while she was away. She said she returned home on 24 September 2022. However, Miss McPherson’s care calendar shows [Child 1] returned to Miss McPherson’s home on 23 September 2022.[10]

   [9] Page 20 of the hearing papers.

   [10] Page 65 of the hearing papers.

8. On 29 September 2022 Miss McPherson indicates in a text message to Mr Coppock that [Child 1] is “still at mums” which indicates to the tribunal that [Child 1] was still staying with her nan.[11] However, the care calendar for 29 September 2022 indicates [Child 1] was in her (Miss McPherson’s) care.[12] On 26 October 2022 in the text message exchange between Miss McPherson and Mr Coppock, Miss McPherson indicates [Child 1] is still at her nan’s house.[13]

   [11] B6 of Mr Coppock’s submissions.

   [12] Page 65 of the hearing papers.

   [13] B8 of Mr Coppock ’s submissions.

9. Text messages between Miss McPherson and Mr Coppock on 18 November 2022 indicate Miss McPherson was informing Mr Coppock that [Child 1] had not been living with her mum ([Child 1]’s nan) and she had not been residing there since September.[14]

   [14] A17 of Miss McPherson’s submissions.

10. On 12 January 2023 [Ms B] , [Child 1]’s nan, in a signed letter states the following:[15]

    I [Ms B] can confirm that [Child 1] is spending some time at my place while we work through some issues. Despite [Child 1] spending some time at out [our] house Miss McPherson is still 100% responsible for supporting [Child 1] financially. This is a temporary situation and Miss McPherson and [Child 1] are working with counsellors.

    The letter from [Ms B] indicates that [Child 1] was “spending some time” at her house and that this was a “temporary situation” while both [Child 1] and Miss McPherson engage with counsellors. Miss McPherson also provided a letter from her sister [stating] that Miss McPherson’s mum also stays with her [for] two or three days at a time on a weekly basis; there is no indication when this arrangement commenced.[16] Miss McPherson said this meant her mum could not have had [Child 1] at her house when she ([Ms B]) was away.

    [15] Page 38 of the hearing papers.

    [16] A19 of Miss McPherson’s submissions.

11. The objects of the Act outlined in section 4 relevantly provide in subsection 4(2):

    (2)  Particular objects of this Act include ensuring:

    (a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and

    (b)that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and

    (c)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; and

    (d)that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and

    (e)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.

12. Relevantly, paragraph 4(2)(c) states that the person who provides ongoing daily care for the children should be able to have the level of financial support to be provided for the children easily determined without the need to resort to court proceedings.

13. The term “ongoing daily care” is not defined in the Act but the Guide at section 2.2.1 assists, suggesting what factors may be accounted for in determining to what extent a person is caring for a child based on what circumstances may apply to particular situations:

    In most cases, it will be relatively clear whether and to what extent a person is caring for a child and care will generally be worked out based on the number of nights that the child is likely to be, or has been, in the care of the person during the care period (CSA Act section 54A). Where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case, based on the extent to which the:

    ·     person has control of the child, including having overall responsibility for the child and making

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

    o    arrangements for others to meet the needs of the child (delegated care)

    ·     person meets 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

    ·     person pays for the costs of meeting the needs of, or otherwise provides financial support for, the child

    ·     child provides for his or her own needs or has those needs met from another source

    ·     child is financially independent or financially supported from another source.

14. There exists no agreement between Miss McPherson and Mr Coppock as to what the care arrangements for [Child 1] actually were. Mr Coppock’s understanding about where [Child 1] was living was gained from [Child 1], and because she is the child of the assessment cannot be used as evidence of where [Child 1] was living at particular times.

15. It is evident that there was a high level of conflict between [Child 1] and her mum and they were needing time apart. How much time [Child 1] spent staying with her nan is a point of contention between Miss McPherson and Mr Coppock. Mr Coppock submitted that the text messages between himself and Miss McPherson supported his view that [Child 1] was spending more time in her nan’s overnight care than in Miss McPherson’s care and it was his view that [Child 1] was not spending any time in Miss McPherson’s care.

16. In response, Miss McPherson said the care calendars were an accurate record of the nights of care she had of [Child 1]. Given there is both material and oral evidence which the tribunal finds is conflicting, the tribunal was not satisfied on balance that [Child 1] spent as many nights at her mum’s house as the care calendars would suggest, but this does not mean that [Child 1] did not stay overnight with her mum at all during the relevant period.

17. The tribunal considered the meaning of ongoing daily care in paragraph 4(2)(c) of the Act. In relation to older children living away from home the also Guide provides (at section 2.2.1) the following:

    Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child support child who lives separately from that person.

    Where a person provides substantial financial support to an older child support child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

    While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

18. Evidence before the tribunal also suggests that Miss McPherson was also continuing to provide ongoing daily care in other ways notwithstanding that [Child 1] may not have always been in her overnight care. Miss McPherson said she was still the contact for [Child 1]’s school as shown by emails sent to Miss McPherson in November and December 2022.[17] In October 2022 Miss McPherson was still responsible for [Child 1]’s school fees.[18] Miss McPherson also provided evidence that she was the contact for the Director of Student Wellbeing and was the main contact for the school. Miss McPherson said she was also providing money to her mum as well as money to [Child 1]. Evidence before the tribunal shows transfers made to [Child 1] from Miss McPherson for the period 24 August 2022 to 4 January 2023 as well as payments from Miss McPherson to her mother for the period 3 November 2022 to 21 December 2022.[19] Additional evidence provided by Miss McPherson was dated in 2023 and did not assist the tribunal for the period relating to the notification of the change of care for [Child 1].[20]

    [17] A20 of Miss McPherson’s submissions.

    [18] See pages 34 and 70 of the hearing papers.

    [19] Pages 33 and 35–36 of the hearing papers.

    [20] A21–A23 of Miss McPherson’s submissions.

19. Evidence before the tribunal also shows that Mr Coppock contacted [Child 1]’s school about payment of school fees for her, showing that payment could be made in monthly instalments of $578.[21] Evidence before the tribunal also shows Mr Coppock paid $500 towards [Child 1]’s first term school fees for 2023 and $481.67 to [a finance institute].[22]

    [21] Page 64 of the hearing papers.

    [22] Pages 81–82 of the hearing papers.

20. It is the tribunal’s view that if an older child is living away from home, either on an ongoing basis or on a temporary basis that this is not necessarily indicative that the parent is not supporting the child or that they have ceased to provide care of the child.

21. Relevantly, the circumstances in this matter as far as the tribunal can ascertain is that [Child 1] spent time at her nan’s house due to the conflict she and her mum were having at the time. The tribunal would need to be positively satisfied that [Child 1] was staying solely at her nan’s house from 6 September 2022 and her mum ceased to have any involvement with her. Evidence before the tribunal shows that after 6 September 2022 Miss McPherson continued to pay [Child 1]’s school fees, provided financial assistance to her mum and financial assistance to [Child 1].

22. The tribunal is required to reach a decision on the balance of probabilities that one scenario is more likely than the other. The tribunal, in weighing the evidence from both Miss McPherson and Mr Coppock, found there were inconsistencies in both the oral and written evidence given by Miss McPherson, and found it problematic that Mr Coppock’s view about the care change of [Child 1] primarily relied upon text messages between himself and [Child 1].

23. On balance the tribunal is not persuaded that Miss McPherson’s care was 0% from 6 September 2022, but nor does the tribunal conclude that Miss McPherson’s care of [Child 1] remained at 93%. On balance it is likely that the care of [Child 1] fell somewhere in between these two percentages. It is on this basis that the tribunal concludes that Miss McPherson’s percentage of care of [Child 1] was 50%. As this is a change to the existing percentage of care for [Child 1] which changes the cost percentage for Miss McPherson, the tribunal is satisfied that the existing care determination of 93% care to Miss McPherson and 7% care to Mr Coppock should be revoked. Accordingly, the existing care determination is revoked in accordance with section 54F of the Act.

1. Subsection 54F(3) of the Act provides the revocation determination takes effect at the end of the day before the change of care day, providing Child Support was notified within 28 days of the care change. As Mr Coppock notified Child Support that there had been a change to the existing care arrangements for [Child 1] within 28 days of that change occurring, the tribunal finds the existing care determination of 93% care to Miss McPherson and 7% care to Mr Coppock is revoked on 5 September 2022.

Issue 2 – What is the date of effect of the new care determination?

1. A new care determination is made in accordance with section 50 of the Act in which Miss McPherson has 50% care and Mr Coppock has 0% care of [Child 1] from 6 September 2022.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that from 6 September 2022 Miss McPherson has 50% care and Mr Coppock has 0% care of [Child 1].

(This means the application for review is partly successful.)