Mirvac and Caster (Child support)

[2018] AATA 3067

Mirvac and Caster (Child support) [2018] AATA 3067 (5 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013675

APPLICANT:  Mrs Mirvac

OTHER PARTIES:  Child Support Registrar

Mr Caster

TRIBUNAL:Member F Hewson, Member P Sperling PSM

DECISION DATE:  05 July 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support – Percentage of care – Child not living with either parent – One parent provides some financial and emotional support but neither parent has overall control of or responsibility for making major decisions in relation to the child – Neither parent an eligible carer – Child support terminating event – decision under review affirmed

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. Mrs Mirvac and Mr Caster are the parents of [Child 1], now aged 17, in respect of whom there was a child support assessment. This application is about whether Mrs Mirvac is an eligible carer and, if so, what the percentages of care for [Child 1] used in the child support assessment should be.

2. The Department of Human Services – Child Support (the Department) recorded that from 14 July 2017 Mrs Mirvac had a percentage of care of [Child 1] of 24% and Mr Caster had a percentage of care of 76%.

3. Mrs Mirvac contacted the Department on 21 November 2017 and advised that the care of [Child 1] had changed, such that she had a percentage of care of 100%. On that date the Department made a decision to make a new care determination in relation to [Child 1], to reflect that Mrs Mirvac had a percentage of care of 100% and that Mr Caster had a percentage of care of 0%.

4. Mr Caster lodged an objection to the decision, on the basis that neither parent was providing care for [Child 1]. On 27 February 2018 an objections officer considered the matter and allowed Mr Caster’s objection.

5. On 9 March 2018, Mrs Mirvac lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was heard on 5 July 2018. Mrs Mirvac spoke to the tribunal by conference telephone. Mr Caster also spoke to the tribunal by conference telephone. The Child Support Registrar did not attend the hearing. As well as the evidence of Mrs Mirvac and Mr Caster, the tribunal also had regard to the documents provided by the Department, a copy of which was also given to the parties, and to additional evidence provided by Mrs Mirvac.

ISSUES

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act).

2. The original decision in this case was to revoke the existing percentage of care determinations and to make new care determinations, in accordance with the provisions in Division 4 of Part 5 of the Act.

3. The objections officer’s decision that neither parent is providing care for [Child 1] is, in effect, a decision that there is no eligible carer and, therefore, a child support terminating event for the purpose of section 12 of the Act has occurred.

4. The issues which arise in this case are:

   ·       Whether either parent is an eligible carer for the purpose of the child support assessment in respect of [Child 1].

   ·       If so, should the existing determination of the percentages of care be revoked, and from what date?

   ·       Should new determinations of percentages of care be made and, if so, from what date?

CONSIDERATION

1. Section 74 of the Act provides that the Registrar must give effect to a terminating event on the date the event occurred. Subsection 12(2AA) of the Act is relevant in this case. It provides that a terminating event happens in relation a child if neither parent is an eligible carer of the child, and there are no non-parent carers entitled to be paid child support in relation to the child. To be entitled to be paid child support a non-parent carer must make an application for a child support assessment. The tribunal was satisfied that there are no non-parent carers in this case.

2. The tribunal considered whether either parent was an eligible carer of [Child 1] in the period relevant to the review. The term ‘eligible carer’ is defined in section 7B of the Act. So far as is relevant in this case, it provides that an eligible carer, in relation to a child, means a person who has at least shared care (a care percentage of at least 35%) of the child.

3. There is no dispute in this case that from 20 November 2017, [Child 1] has not been in the care of Mr Caster. In deciding whether Mrs Mirvac had at least shared care of [Child 1] from 20 November 2017, the tribunal had regard to Chapter 2.2.1 (Basics of care) of the Child Support Guide, which states, in part:

   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 carers.

4. The tribunal also had regard to the decision of Polec & Staker (SSAT Appeal) [2011] FMCAfam 959, which examined the factors to consider in determining whether and to what extent a parent or a non-parent carer has care of a child for the purposes of the child support legislation.

Mrs Mirvac’s evidence

1. During the hearing Mrs Mirvac said she disagreed with the decision of the objections officer that she did not provide any care for [Child 1] from 20 November 2017. She said that [Child 1] had been living with Mr Caster in 2016, having started an [apprenticeship] on 1 December 2016 when he was 15 years old.  Mrs Mirvac submitted that she had always been involved in [Child 1]’s care, even when he was living with Mr Caster and, before that, when [Child 1] was living with his brother in [Suburb 1].

2. Mrs Mirvac said she became aware of a change in care arrangements on 20 November 2017 when [Child 1] contacted her and advised that he and Mr Caster’s former partner, [Ms A], had left Mr Caster’s home after a family dispute. While Mrs Mirvac acknowledged that she wasn’t able to provide the exact dates of his movements at the time, she said that she understood that [Child 1] went to live at the house of [Ms A]’s mother for the first couple of days, then stayed with his brother for about a week in [Suburb 1] and then went to stay with Mr Caster’s brother in [Town 1] for a few days.

3. Mrs Mirvac said that, at the time, she had been in the process of purchasing a house in [Suburb 1] and settlement on the property was due to take place on 1 December 2017. It was agreed that [Child 1] and [Ms A] would move into the house when settlement occurred but in the interim the plans changed and it was decided that [Child 1] would live with one of his friends in Mrs Mirvac’s house as soon as it became available.

4. Mrs Mirvac told the tribunal that she procured sufficient goods and furniture to enable [Child 1] and his friend to commence living in her newly acquired house in [Suburb 1] from the date of settlement, 1 December 2017. Mrs Mirvac advised that [Child 1] moved into the house on 1 December 2017 and evidence she provided prior to the hearing confirmed that the house was rented to [Child 1] through a [Suburb 1] real estate agent for $200 per week from 22 December 2017 which, the real estate agent’s letter indicates is less than the current rental market value. She also advised that, because [Child 1] is her son, she waived the payment of any bond on the property. Further, in her written submission Mrs Mirvac stated that the house is a three-bedroom house and [Child 1] has been responsible for rent collection and could have rented the third bedroom out as well but chose not to do so.

5. Mrs Mirvac said that [Child 1]’s bedroom furniture was moved into the new house from Mr Caster’s house and that she purchased other furniture and goods to set up the house.  During the hearing she advised [Child 1] also acquired some additional things to add to the household, including a pool table and a couch. In her submission to the tribunal prior to the hearing Mrs Mirvac detailed the dates on which she was with [Child 1] in [Suburb 1] between 15 December 2017 and 2 April 2018 which showed that she had spent a total of 21 days with [Child 1] in [Suburb 1] over this period (A5).

6. In her evidence Mrs Mirvac stated that at the time, [Child 1] had an [apprenticeship] in [Suburb 1] and was earning about $400 per week. Mrs Mirvac also advised that, as part of his apprenticeship, [Child 1] is required to attend five days of trade school classes in [Town 2] every few weeks and he intends to stay in her house with her when he is in [Town 2]. Mrs Mirvac provided detailed information about the dates on which [Child 1] attended trade school in [Town 2] in February and March 2018. She also provided a copy of the trade school schedule for the whole of 2018 showing that [Child 1] would be required to attend a total of six five-day training blocks in [Town 2] between February and September 2018. 

7. In response to the tribunal’s questions about who was responsible for deciding what [Child 1] did and who cared for him on a day-to-day basis, Mrs Mirvac indicated that [Child 1] and his housemate would attempt to do the usual things that you are meant to do to look after a house as best they could and that she would occasionally clean the house when she was visiting as well as do his washing when she visited or when he was staying at her house in [Town 2]. She also advised that [Child 1] made the decisions about what he did on a day-to-day basis and that the amount of extra time he spent with her in [Town 2] on weekends depended on what else he chose to do at the time. She noted that he made decisions about what he did in his free time after work and that he often chose to go fishing, camping or shooting as these were the types of activities that he enjoyed.

8. Mrs Mirvac submitted that she has always remained in close contact with [Child 1] and that when he was living with Mr Caster, prior to moving out in November 2017, she was in phone contact with [Child 1] at least once each day. She said that since [Child 1] left Mr Caster’s house she has called him every morning to make sure that he gets up for work. In her pre-hearing submission, Mrs Mirvac also stated that [Child 1] calls her most evenings and weekends.

9. During the hearing Mrs Mirvac stated that she has been paying [Child 1]’s phone bill for the last two years, has contributed significantly to other costs he has incurred and buys him occasional groceries. Evidence provided by Mrs Mirvac before the hearing included phone bills, internet and Netflix bills as well as receipts showing expenditure of approximately $1,900 for the purchase of furniture and household goods and clothes, all of which she said she paid to assist [Child 1].

10. Mrs Mirvac’s pre-hearing submission states that she has been covering all expenses related to the property including water, electricity and gas and provided copies of some of these accounts as evidence that they are in her name. Her submission also stated that she has paid for registration of [Child 1]’s ute and she provided a copy of the [receipt] for this payment which showed that the vehicle was registered in her name.

11. In her pre-hearing submission Mrs Mirvac stated that when [Child 1] was unwell during a stay in [Town 2] she took time off work to attend to his needs and during the hearing she told the tribunal that if he needed to go to the doctor while he was in [Town 2], she would go with him and that she went with him to every [specialist] appointment.

12. Finally, Mrs Mirvac advised the tribunal that [Child 1] had recently resigned from his apprenticeship and decided to move to live with his uncle because he is lonely. She said that he applied for a new job and told her about it when he was advised that he had a job interview. Since then [Child 1] has been offered the new job and has resigned from his apprenticeship and moved out of the house in [Suburb 1]. She confirmed that, as far as she is aware he has taken all of the household goods and furniture and put them into storage. Mrs Mirvac said that she had concerns about [Child 1] giving up his apprenticeship and told him as much, but said that she understood that he was lonely living by himself and wanted to go and live with his uncle.

Mr Caster’s evidence

1. During the hearing Mr Caster told the tribunal that the dates that Mrs Mirvac had provided regarding when [Child 1] started living in her house in [Suburb 1] were incorrect. He said that [Child 1] left his house on 21 November 2017 but was still in the care of his partner, [Ms A], for the next two weeks and that during this period he provided additional funds to [Ms A] to help support [Child 1]. He stated that [Child 1] was then in the care of his uncle from 2 December 2017 to 8 December 2017 on a job trial with an employer in [Town 1]. He therefore disputed Mrs Mirvac’s claim that [Child 1] was in her care from 21 November 2017.

2. Mr Caster also told the tribunal that over time he has also purchased many things for [Child 1], including clothes, tools and equipment for his work. He said he has bank records showing that he purchased items for [Child 1] while he was in the care of Mrs Mirvac. He said he also transferred $4,000 about two months ago to help [Child 1] after he had a car accident.

3. In summary Mr Caster said that [Child 1] works full time, earns a wage and lives on his own and therefore should be considered to be living independently.

Is either parent an eligible carer in relation to [Child 1]?

1. The tribunal considered the available evidence. According to Mrs Mirvac, [Child 1], who was then assessed as being in her care, moved in with his older brother in 2016 while he finished year 10 in [Suburb 1]. It is not disputed that [Child 1], then aged 15, commenced full-time work in [Suburb 1] at the end of 2016, as an [apprentice]. His income was about $400 per week. The tribunal accepted that while he was an apprentice he attended trade school in [Town 2], about two hours away, for at least six weeks each year, during which time he stayed with Mrs Mirvac, who lives nearby.

2. According to the Department’s records, [Child 1] was in the primary care of Mr Caster from 14 July 2017. It is not disputed that there was a change in the care of [Child 1] from 20 November 2017, after he left Mr Caster’s residence. The parties agreed that in the following weeks [Child 1] stayed with several people, before moving into the property purchased by Mrs Mirvac at [Address 1], [Suburb 1].

3. It was Mrs Mirvac’s evidence at the hearing that [Child 1] moved into the [Address 1] property from the date of settlement of the property, on 1 December 2017. A copy of the lease for the property in which [Child 1] and [his friend] are recorded as the tenants, states that the lease commenced from 22 December 2017. In her written statement Mrs Mirvac indicated that although the lease started on 22 December 2017, [Child 1] moved into the house on 1 December 2017.

4. The tribunal notes, however, that the documents provided by the Department include a record of contact with Mrs Mirvac on 4 December 2017, which records that Mrs Mirvac advised that [Child 1] was currently staying with his uncle in [Town 1] and that she will be purchasing whitegoods for him and that he and [Ms A] will move into the property the following weekend. An email the following day recorded that the arrangement for [Ms A] to move into the property had fallen through, and [Child 1] may find someone else to move into the property with him. At that stage whitegoods had been purchased, but had not been delivered, [Child 1] had not yet retrieved his belongings from Mr Caster’s residence, including his bedroom furniture. The tribunal concluded that the earliest date on which [Child 1] is likely to have moved into the [Address 1] property is 9 December 2017, being the next weekend.

5. A letter dated 1 June 2018 from [the Property Manager] states that [Child 1] pays $100 per week for rent of the [Address 1] property, for which the current market rent is between $220 and $230. It also notes that [his friend] vacated the property on 28 April 2018. The lease for the property shows that the rent was $200. The tribunal accepted that [Child 1]’s share was $100 and that after [his friend] left the property at the end of April, [Child 1] continued to pay only his share of the rent. It was Mrs Mirvac’s evidence that [Child 1] has now also vacated the property and is living with his uncle in [Town 1].

6. At the hearing Mrs Mirvac also advised that [Child 1] has been offered a new job, near [Town 1], and he has resigned from his apprenticeship. She became aware that he had applied for the job when he told her a few days beforehand that he had an interview. She said she communicated her concerns about the decision to resign from his apprenticeship, but conceded that it was his decision to make. He also makes his own decisions about how he will spend his time after work and on the weekends. He likes to go fishing, shooting and camping. When he was at trade school in [Town 2] he sometimes stayed for the weekend, but this depended on whether he had other plans, and was at his discretion.

7. Mrs Mirvac said while he was living in the [Address 1] property [Child 1] met many of his day-to-day needs by contributing his share of the rent, cleaning, cooking and purchasing food, clothing and items for the household. She said on occasions when she was in [Suburb 1] she sometimes did some cleaning, and when he came to [Town 2] he sometimes brought his washing for her to do. Mrs Mirvac said she took him to medical appointments if he was in [Town 2]; if he needed a certificate for work he attended [a medical clinic] in [Suburb 1]. Mrs Mirvac said she called [Child 1] every morning, including while he was living with Mr Caster, to make sure he got up for work (the tribunal notes that [Child 1]’s phone bills provided by Mrs Mirvac show that [Child 1] received a large number of phone calls from Mrs Mirvac’s phone number and while these calls could be characterised as regular, they are not daily calls and did not always occur in the morning).

8. The tribunal accepted that Mrs Mirvac purchased whitegoods for the property, which she said are now in storage and [Child 1] will take them if he moves into another property. Other expenses she met for [Child 1] included his telephone bill, utilities and vehicle registration.

9. The tribunal weighed the evidence carefully. Apart from the period he was residing with Mr Caster at the end of 2017, it was the evidence of the parties that [Child 1] has been living without direct daily parental supervision since the middle of 2016. In December 2016 he commenced full-time employment, and achieved a level of financial independence. The tribunal accepted that Mrs Mirvac still provides some financial and emotional support, but it concluded that [Child 1] meets most of his own needs and is responsible for making his own decisions. Neither parent, in the tribunal’s view, has had overall control of or responsibility for making major decisions in relation [Child 1] since he left Mr Caster’s residence in November 2017, as evidenced by [Child 1]’s decisions to change jobs and to move to new accommodation.  In the circumstances the tribunal concluded that neither Mrs Mirvac nor Mr Caster are eligible carers for the purpose of section 7B of the Act and, that being the case, a child support terminating event has occurred from 20 November 2017, in accordance with subsection 12(2AA) of the Act.

DECISION

The decision under review is affirmed.