Muamba and Ames (Child support)

[2024] AATA 2895

Muamba and Ames (Child support) [2024] AATA 2895 (21 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027666

APPLICANT:  Mr Muamba

OTHER PARTIES:  Child Support Registrar

Miss Ames

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  21 June 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Muamba provides 40 per cent care and Miss Ames provides 60 per cent care of [Child 1] from 20 April 2023, notified on 12 May 2023.

CATCHWORDS
CHILD SUPPORT – percentage of care – change in care – children living away from home – financial support – existing percentage of care determinations revoked – 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 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 review is about a change to the percentage of care determinations for Mr Muamba and Miss Ames in respect of their child [Child 1] (born May 2021).  Mr Muamba and Miss Ames are the parents of two children; however, this matter relates to [Child 1] only.

2. From 31 January 2023 the child support assessment reflected Mr Muamba as having 100 per cent care and Miss Ames as having 0 per cent care of [Child 1].

3. On 12 May 2023 Miss Ames notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that she was providing 100 per cent care of [Child 1] from 20 April 2023.

4. On 10 August 2023 Child Support made the decision to reflect that Miss Ames provides 100 per cent care of [Child 1] and Mr Muamba provides 0 per cent care from 20 April 2023.

5. On 18 August 2023 Mr Muamba objected to this decision and on 17 February 2024 Child Support disallowed the objection (the objection decision).

6. On 17 March 2024 Mr Muamba 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 4 June 2024.  Mr Muamba and Miss Ames gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (212 pages).

ISSUES

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

2. Child Support 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, Child Support determines care percentages that correspond with the actual care of a child the parent has had, or is likely to have, during a care period (section 50 of the Act).  The task of the Tribunal on review is the same.

4. Child Support 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 Muamba told the Tribunal there was no court order or other written agreement in place relating to the care of [Child 1].  Mr Muamba said that following an incident on 31 January 2023 he had been contacted by the police and informed that Miss Ames had been arrested.  Mr Muamba said although he lived in [Country 1] he had been in Australia at the time and child services had recommended he make arrangements for the care of [Child 1].

2. Mr Muamba explained that while still in Australia he organised for [Child 1] to live with [Ms A] who was the adult daughter of Miss Ames.  Mr Muamba said he agreed to make regular transfers of funds to [Ms A] to assist with the ongoing care of [Child 1].

3. The Tribunal notes in evidence a letter addressed to Mr Muamba from the Child Safety Service Centre within the Queensland Department of Children, Youth Justice and Multicultural Affairs.  The letter, dated 1 March 2023, relates to an investigation undertaken in response to a child protection notification received in January 2023.  The letter states, relevantly, that:

   A substantiated - child not in need of protection outcome has been recorded for the children. It has been assessed that they have experienced harm in the care of their mother however are not at unacceptable risk of harm in the future as you have been identified as a parent both willing and able to meet (and / or make appropriate arrangements to meet) their care and protective needs.

4. Mr Muamba told the Tribunal that he went back to [Country 1] but subsequently returned after Miss Ames had a serious car accident in mid-February 2023.  Mr Muamba said he then stayed in Australia for another couple of weeks before returning again to [Country 1].  Mr Muamba added that he continued to transfer funds on a regular basis to [Ms A] until after Child Support informed him that [Child 1] was in the care of Miss Ames.  Mr Muamba said up until then he was under the impression it was [Ms A] who was caring for [Child 1].

5. The Tribunal notes in evidence from Child Support copies of electronic funds transfers from Mr Muamba to [Ms A] in the period from 31 January 2023 to 2 August 2023.  These regular transfers are noted as child support and the amounts vary from $100 to $440.  From 20 April 2023, the date Miss Ames states that care of [Child 1] changed, the transfers are usually weekly with the most frequent amount being $225.

6. Mr Muamba acknowledged that as he was living in [Country 1] he could not be certain of the care arrangements for [Child 1] but said [Ms A], or her sister [Ms B], had informed him on several occasions that [Child 1] was still in her care.  Mr Muamba said he was aware that Miss Ames had also moved in with her daughters at some point after being released from hospital but was uncertain when this happened.  Mr Muamba added that he thought Miss Ames had stayed at a shelter before living with [Ms A] and [Ms B].

7. The Tribunal notes in evidence provided to Child Support by Mr Muamba a number of text message exchanges between Mr Muamba and [Ms A] or Mr Muamba and [Ms B].  Mr Muamba explained that he would send messages to [Ms B] who then passed them to [Ms A] for a reply.  In one exchange Mr Muamba asks on 12 May 2023, “Do you still have [Child 1] in your care all the time, is he with [Ms Ames]”?  The response, on 13 May 2023, is “Hey I’m so sorry [Ms A] was meant to respond this morning to you and I handed her the phone and yes we still have both the kids”.  In another exchange Mr Muamba asks on 15 July 2023, “is [Child 1] still living with you and not [Ms Ames] as child support are asking again as you mum is saying she has him”?  The response, on 20 July 2023, is “I’m sorry I didn’t know you had been texting due to this being [Ms B] account, no [Child 1] is still in my care I still provide stuff for him”.

8. Miss Ames told the Tribunal she did not dispute that [Child 1] was living with her adult daughter [Ms A] and it was Mr Muamba who had organised this on 31 January 2023.  Miss Ames said the arrangement had continued after she was involved in a serious car accident and hospitalised on 12 February 2023 but [Child 1] returned to her care when she was released from hospital.  Miss Ames confirmed this was on 20 April 2023.

9. Miss Ames said after leaving hospital she did stay in a shelter for women for a short period, a month at most, before moving in with [Ms A] and [Ms B].  Miss Ames added that during her time in the shelter [Child 1] had come to stay with her regularly.

10. The Tribunal notes in evidence two separate statements from [Ms A] relating to the care of [Child 1].  In the first statement [Ms A] says, relevantly, that [Child 1] was in her care from 29 January 2023 and remained in her care until Miss Ames “was out of hospital in April”.  In the second statement [Ms A] says, relevantly, that [Child 1] has “been in the care of [Ms Ames] since the 20^th April”.  [Ms A] also confirms in her second statement that Mr Muamba has been sending funds to assist in supporting [Child 1] on a weekly basis and “Me, the children and my mother have been living all together”.

11. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. Care is generally assessed over a 12-month care period commencing from the day on which the actual care of the child changed.

12. It is not in dispute that Mr Muamba made arrangements for [Child 1] to live with [Ms A] as he resided in [Country 1] and Miss Ames was not able to care for [Child 1] herself.  Mr Muamba has told the Tribunal he provided [Ms A] with funds to assist with costs for the care of [Child 1].  This is supported by the evidence showing ongoing weekly transfers from Mr Muamba to [Ms A] up until 2 August 2023.  The text message exchanges between Mr Muamba and [Ms A], or her sister, explain why Mr Muamba believed [Child 1] was still in the care of [Ms A].  Miss Ames argues that she was responsible for the care of [Child 1] once she was released from hospital.  Miss Ames has said that she was living with her two adult daughters and [Child 1] and this is verified by the statements from [Ms A].

13. Although Miss Ames has also informed the Tribunal she was living in a shelter for a few weeks after leaving hospital it is common for such accommodation providers to allow mothers to have their children stay overnight.  It is very likely Miss Ames was providing care for [Child 1] before she moved into the home where [Child 1] was living with [Ms A].

14. The Tribunal is satisfied, based on the evidence provided, that care of [Child 1] changed from 20 April 2023.

15. The Federal Magistrates Court of Australia, in Polec & Staker & Anor[1] set out the factors to be considered in determining whether and to what extent a person has care of a child for the purpose of the child support legislation.  These are:

    ·     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 to the child;

    ·     to what extent does the child provide for his or her own needs or have those needs met from another source; and

    ·     to what extent is the child financially independent or financially supported from another source?

    [1](SSAT Appeal) [2011] FMCAfam 959

16. The Child Support Guide, at 2.2.1, also provides some guidance in relation to children living away from home.  It states:

    Where a person provides substantial financial support to an older 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.

17. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

18. It is the view of the Tribunal that both parents have been contributing significantly to the care of [Child 1] from 20 April 2023.  Although living in [Country 1], Mr Muamba was providing considerable financial support for the care of [Child 1].  It was also Mr Muamba who made arrangements for [Ms A] to care for [Child 1] at the recommendation of child services.  Mr Muamba continued to provide such financial support for several months after Miss Ames was released from hospital, moved in with her daughters and commenced caring for [Child 1].  The Tribunal is also satisfied that from 20 April 2023 Miss Ames was the parent responsible for the physical care of [Child 1] including meeting his day-to-day needs and providing for his ongoing emotional support.

19. While it is difficult to quantify precisely the level of care provided by each parent, the Tribunal is satisfied that Miss Ames is making a larger contribution and this should, therefore, be properly reflected in the assessment.

20. The Tribunal finds that Mr Muamba provides 40 per cent care and Miss Ames provides 60 per cent care of [Child 1] from 20 April 2023.

21. The existing percentages of care reflected in the assessment for [Child 1] were 100 per cent care to Mr Muamba and 0 per cent care to Miss Ames.  The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

22. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Muamba and Miss Ames under section 50 of the Act.

2. The Tribunal finds that Mr Muamba provides 40 per cent care and Miss Ames provides 60 per cent care of [Child 1] from 20 April 2023.

Date of effect of new care percentage determinations

1. The Tribunal finds that Miss Ames notified Child Support of the change in care for [Child 1] on 12 May 2023.  As this is less than 28 days after the change occurred on 20 April 2023, according to paragraph 54F(3)(a) of the Act, the existing care determinations for [Child 1] are revoked on the day before the change of care day.

2. The new determinations are made on 20 April 2023.

Other care matters

1. According to the evidence provided, Mr Muamba ceased providing financial support for [Child 1] on 2 August 2023.  The Tribunal notes this could provide the basis of a further change in care for [Child 1].  The legislative scheme deals with any such potential change of care by requiring either parent to notify Child Support so that a new care percentage decision can be considered and made if required.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Muamba provides 40 per cent care and Miss Ames provides 60 per cent care of [Child 1] from 20 April 2023, notified on 12 May 2023.