MYGL and Child Support Registrar (Child support second review)

[2024] AATA 3179

MYGL and Child Support Registrar (Child support second review) [2024] AATA 3179 (6 September 2024)

Division:GENERAL DIVISION

File Number(s):      2023/8546

Re:MYGL

APPLICANT

AndChild Support Registrar

RESPONDENT

AndYHRN

OTHER PARTY

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:6 September 2024

Place:Sydney

The Tribunal sets aside the decision of the AAT1 dated 18 October 2023, and in substitution decides that:

(a)neither parent had any care of the child from 25 March 2022;

(b)the other party notified Services Australia within a reasonable period after the change in circumstances;

(c)the care determination that the applicant had 100% care and the other party had 0% care is revoked from 24 March 2022.

...................................[sgd].....................................

Emeritus Professor P A Fairall, Senior Member

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.

CATCHWORDS

CHILD SUPPORT – revocation of existing care percentage determination – changes to level of care during relevant care period – date of effect of revocation – actual care of child – whether overnight care is relevant to actual care – substantial financial support considered – decision under review set aside and substituted

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)

CASES

P v Child Support Registrar (2013) 62 AAR 17

SECONDARY MATERIALS

Australian Government Department of Social Services, ‘Guides to Social Policy Law, Child Support Guide’ (5 February 2024), < FOR DECISION

Emeritus Professor P A Fairall, Senior Member

6 September 2024

1. MYGL (the applicant) and YHRN (the other party) are the separated parents of two daughters. The younger daughter, OLE, is the subject of a child support assessment made under the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) and first registered on 2 August 2010.[1]

   [1] The assessment terminated on 31 October 2023: T2, 5; Respondent’s Statement of Facts, Issues and Contentions (RSFIC), 2 [4].

2. A dispute has arisen as to the childcare percentages that should be attributed to each parent for the care of OLE from March 2022. On 18 October 2023, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) found that from 25 March 2022 neither parent provided care. MYGL, the mother, seeks a second-tier review of that decision.

3. By way of background, I note the following chronology, taken from the respondent’s statement of facts, issues and contentions (RSFIC).

4. Since 3 March 2022, the administrative assessment of child support reflected that MYGL had 100% care of the child and YHRN had 0%.[2] 

   [2] T71, 288.

5. On 29 June 2022, YHRN notified Services Australia that the applicant had ceased caring for the child, who had commenced living on her own.[3] 

   [3] T23, 144.

6. On 25 October 2022, an authorised officer of the Registrar rejected YHRN’s change in care notification.[4] YHRN objected to the original decision on 3 November 2022.[5] On 2 May 2023, another authorised officer disallowed YHRN’s objection.[6]

   [4] T26, 147-151.

   [5] T74, 342.

   [6] T7, 97-100.

7. On 4 May 2023, YHRN applied to the AAT1 for review of the decision dated 2 May 2023.[7] On 18 October 2023, the AAT1 made the decision under review.[8] 

   [7] T4, 89-94.

   [8] T2, 4-10.

8. The section 37 documents (T documents) were filed on 20 June 2024, and run to 486 pages. In addition, the parties filed the following materials:

   (a)Evidence filed by MYGL that OLE was not independent, dated 9 February 2024 (item A1 of the member’s file);

   (b)Further evidence filed by MYGL that OLE was not independent, dated 9 February 2024 (item A2 of the member’s file);

   (c)Statutory declaration of OLE, dated 11 April 2024 (item A3 of the member’s file);

   (d)Letter from YHRN to the Tribunal, dated 7 March 2024 (item S1 of the member’s file);

   (e)Letter from YHRN in response to the application for second review, dated 7 March 2024 (item S2 of the member’s file);

   (f)Letter from YHRN in response to item A1, dated 7 March 2024 (item S3 of the member’s file);

   (g)Submissions from YHRN, dated 17 March 2024 (item S4 of the member’s file);

   (h)RSFIC (item S5 of the member’s file); and

   (i)Redacted s 38AA bundle (item R1 of the member’s file).

9. The application was heard by videoconference on 25 and 29 July 2024. Mr A. Taverniti appeared for the respondent and provided helpful submissions, remaining impartial and neutral on matters of fact.

   EVIDENCE

10. I turn to the evidence given by the parties.

11. MYGL said that in 2022 she was living in northern New South Wales (NSW). She was “travelling” in March 2022 and took OLE with her to Canberra for a few weeks. OLE came into her care a hundred per cent from the very beginning of March 2022. She and OLE stayed with her other daughter (OLE’s sister) in student accommodation at the Australian National University (ANU). She returned home at the end of March and OLE went with her. OLE returned to school in Sydney after the Easter holidays.[9] MYGL said that she found somewhere for OLE to stay in Sydney, because she did not want to stay with her father YHRN. She said she continued to live in northern NSW throughout the remainder of OLE’s schooling.

    [9] On or about the 18 April 2022.

12. YRHN said that he was against the Canberra trip because OLE had missed so much school. He raised his concerns with the school principal. He said that the principal was also concerned about her attendance but supported her absence based on a psychological report. He stressed that when OLE lived with him, she had not been late for school. Between March 2022 and when she left school in October 2023, she was late 28 times. He said that there was no reason for OLE not to live with him. He thought that OLE did not intend to leave her home with him permanently when she went to Canberra. The absence was supposed to be temporary. He accepted that it became a wholesale change, although he did not think she intended it to be. He said that he and OLE had challenges over schooling, over dress, over jewellery, and so forth. But there was no reason for her to leave her home with him.

13. YHRN disputed that MYGL provided overnight care during the visit to Canberra. He said that he paid for his other daughter’s accommodation at the ANU. It was a single bed in a student studio. He said: ‘There’s no question of anyone else or more than one person being able to stay in that property’.[10]

    [10] Transcript, 29 July 2024, 18.

14. MYGL said that since upon her return to Sydney, OLE stayed with a friend and made the occasional trip up to visit her in northern NSW. She visited for her birthday in the first week of June. During that visit she took her for her driving test. OLE stayed with her on a long weekend and for a week during midterm. She said that during holiday periods, she would drive down to get OLE. Sometimes she would fly her up. On average this was probably one weekend a month during term time. She always spent school holidays with her. She came down to stay with OLE once every three weeks during term time; as often as she could, given the circumstances, usually staying for four or five days at a time. She provided day to day supervision of her remotely. She called OLE twice a day, checking that she was home safely in the early evening. She supervised things like cooking food, ‘making sure that she had the right groceries, that she knew what she was doing, that she’d locked the doors, that she was up in time for school, that she’d finished her homework, that she wasn’t having friends over and – and basically being a typical 17-year-old teenager, which she isn’t…’

15. YHRN disputed MYGL’s claim to have spent one weekend a month on average with OLE.  He conceded that OLE spent some time with MYGL in northern NSW, but it was very infrequent. He said that evidence given to AAT1 was that it had been every six weeks. He said that he paid for flights for her to spend time in northern NSW with MYGL and agreed that she may well have also paid for return flights, but there was no evidence of flight costs. He stressed that no evidence had been provided of flight details for OLE from March 2022 onwards.

16. In terms of direct financial contributions, MYGL said that she helped OLE find accommodation in Sydney. Initially she stayed with friends and from April to July she provided regular of payments of $150 per week to OLE to give to the family she was staying with in Canberra. She provided a bank statement for the period March – July 2022.[11] In July they found a studio apartment, and she helped her buy cooking utensils and furniture from charity shops. This came to about $1,000 ‘tops’. OLE rented the studio throughout the remainder of her schooling. The rent was $325 per week rent which was paid for by her youth allowance of $750 per fortnight.

    [11] T75, 446.

17. She also ‘gifted’ OLE the use of a motor car in Sydney from July 2022. She said that she paid for maintenance and registration.  She did not transfer the registration because it would have increased to cost of insurance, which was very expensive for OLE as a new driver. She said OLE had, and still has, exclusive use of the car. She did not use the car when she was in Sydney, because she had her own car.

18. YHRN accepted that MYGL provided a vehicle for OLE but disputed that she paid for insurance or maintenance. MYGL had not provided any proof of such costs such as policy reminders or the like. He said that OLE had told him that she was paying for these things and having to work every weekend and two nights a week to do so.

19. He said that OLE was earning over $20,000 a year.  He said that from March 2022 she was working seven days a week. She worked from late March 2022 at a café. She worked at the café all day Saturday and Sunday, two afternoons after school and early evenings during the week. She was also doing babysitting. This continued until leaving school in October 2023.

20. He said that from late March 2022 to the beginning of June, OLE was couch-surfing in Sydney with friends, a few kilometres from his home, until she moved into her own studio in June 2022. He was confident that it was June and not July or August. He noted that MYGL had a copy of the lease but that it had not been provided to the Tribunal. He also said that at the earlier Tribunal hearing, MYGL had described acquiring the sofa in February 2022. But she was unable to explain where the sofa was stored between then and when OLE moved into the studio.

21. In terms of the MYGL’s financial support, he calculated a total amount of $1,980 based on the bank statements she had provided.

22. In terms of health care, MYGL said that OLE was generally in a good state of physical health, but poor mental health. She said that OLE had been self-harming for a couple of years prior and she was very concerned for her mental wellbeing. She continued to liaise with the counsellor who had seen OLE when she left YHRN’s care in March 2022. She contacted OLE’s GP to discuss health issues and paid for her to see a chiropractor for headaches.

23. YHRN said that OLE started to struggle with anxiety in 2020. He agreed that she was self-harming. She was involved with a couple of girls at school who were doing the same sort of activity. One of those girls attempted suicide. He said that he believed that some of OLE’s anxiety was caused by MYGL moving away in August 2021 and leaving OLE and her elder sister with him. This was the second occasion that MYGL had moved away, and on each occasion that had caused distress and concern to both children.

24. He agreed that MYGL paid for medical appointments in 2023, although he had made the appointment and had the care plan. He said that in 2019 and 2020 he arranged medical appointments for OLE and arranged for her to see a psychotherapist, even though MYGL was living in Sydney at the time. He said that he took OLE to those appointments and paid for them.

25. Both parents said that they were actively involved in OLE’s schooling. MYGL said that she was the contact person for OLE’s schooling and if the school had any issues, they contacted her. She agreed that OLE was often late to school during September and October 2022.  But she was the parent that would call the school and let them know that OLE was absent or late or was about to join school at 11am rather than 9.30am. Apart from this hands-on involvement with the school, she helped her with schoolwork. She spoke to her art teacher on a regular basis.

26. She did not pay school fees because she did not have any money.

27. YHRN said that he paid some but not all the school fees because he did not think that was appropriate. He said that MYGL had not paid school fees for either daughter. He said that he paid for key attendance activities, such as her HSC celebratory dinner, and other activities. He said that he had supported the older child at university.He disputed that he had no contact with OLE’s school. His understanding was that for administrative reasons the school listed only one contact parent. He conceded this was MYGL. But he had discussions with the principal about OLE’s wellbeing.

28. MYGL said that OLE had no contact with YHRN from July 2022 to July 2023. She was not sure when OLE started seeing YHRN again. YHRN said that he and OLE did not communicate between March and October/November 2022. They were now back to where they were prior to March 2022.

29. YHRN considered that his financial contributions had been undervalued by the Registrar and AAT1. He said that he had provided evidence of more financial care than MYGL, and had documented other activities in relation to health, education, washing, and so on.

30. YHRN rejected any suggested that MYGL moved away for the first time in 2022. He stressed that she moved away in 2019 and having returned briefly left again in August 2021. From August 2021 to March 2022, OLE spent more time with him than MYGL.

31. MYGL said that she moved to northern NSW in 2022 for work.

32. In written evidence YHRN drew attention to civil and criminal litigation involving MYGL, her husband (REZ), and his son (BEZ).[12] In a document prepared for the AAT1 hearing he stated:

    [MYGL] left the suburb of [YYY] in August 2021, her departure also coincides with an apparent need for her and her husband to evade the Federal authorities who at the time, and continue to do so, are investigating her and her husband for their role in the collapse of a business known as [UUU]. This is all public knowledge as recent reports in the Australian Financial Review, statements … in the Federal Court and ASIC media releases refer. Her husband has now been formally charged by the DPP. When [MYGL] departed [YYY] in August 2021 she did not have my agreement to vary the time allocated in the Parenting Orders nor did she seek my agreement at any time.

    [12] T74, 312, 330.

33. YHRN stressed that parenting orders for joint parenting were made in 2010. He attempted to enforce the orders but was stymied by court delays.

    CONSIDERATION

34. Care is not defined in the Assessment Act. The level of care provided by a responsible person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances.[13] The Child Support Guide (at [2.2.1]) provides useful guidance for determining whether care exists, to which the Tribunal should have regard.[14] The Guide states:

    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 suggests 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.

    [13] P v Child Support Registrar (2013) 62 AAR 17, 43 [107] (Wigney J).

    [14] RSFIC, 7 [31].

35. I also note the objects of the Assessment Act, as stated in section 4.

    Objects of Act

    (1)  The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.

    (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

36. I note that the Consent Orders referred to by YHRN are included in the materials before the Tribunal. They were engrossed by the Federal Magistrate’s Court of Australia in 2010. Clause 1 provides that the mother and father have equal shared parental responsibility. Clause 3 provided that the children reside with the mother and spend time with the father. The Orders provide detailed time allocation provisions for each parent. 

37. I note that there are no allegations of parental abuse made against either parent.

38. I note YHRN’s submission that from March 2022 to October 2023, OLE was not residing with either parent. He believed that she was independent from 25 March. His view is that OLE has been predominantly or totally independent of both parents, and both parents have provided a general level of involvement but largely OLE’s had to support herself through that period.

39. I have read the letter provided by OLE. It is written by a teenager in support of her mother and still angry with her father. I have no doubt that it was written with sincerity, but I do not think it assists the Tribunal in resolving the pivotal issue.

40. I have also read the references provided by YHRN’s wife, and by a couple who befriended MYGL and YHRN many years ago and witnessed the split and subsequent developments.

41. I note the applicant’s reference to litigation involving MYGL arising from a corporate collapse but do not consider that it is relevant to the issue before the Tribunal, which relates to the care actually provided during the relevant period.

    FINDINGS

1. I am satisfied that OLE left YHRN’s home in Sydney in early March 2022. When she returned to Sydney in mid-April after her trip to Canberra and northern NSW she stayed with friends before moving into a flat which was fully funded by her youth allowance. Unfortunately, the precise dates associated with these peregrinations are unclear.

2. MYGL provided some financial support when OLE returned to Sydney. She provided some payments to OLE’s host family. She also made some modest contribution towards furnishing the studio in around June or July. She made some unspecified contribution to the cost of OLE’s infrequent visits to northern NSW. She also provided OLE with the use of a car. She described this as a gift, although it is doubtful whether ownership in the car passed to OLE, entitling her to sell it with clear title if she so chose. There is nothing to suggest that title passed to OLE, and the car was never registered in her name.

3. MYGL had interactions with the school about her attendance and performance. She also had frequent conversations with OLE about domestic matters such as cooking and social interactions.

4. I accept the respondent’s submission that the Tribunal erred in finding that OLE was granted youth allowance at the independent rate. Notes from Services Australia confirm that her MYGL’s income was used as a basis for determining eligibility. OLE was granted youth allowance as a “dependent, away from home.”

   CONCLUSION

5. The standout feature of this case is how little financial support was provided by either parent from March 2022 to support OLE. The lack of financial support from both parents forced OLE to secure paid employment to a degree which was almost certain to impact on her schooling. Her attendance at school continued to slip during 2022.

6. It may well be that there were financial constraints in how much support could be provided, but the evidence tends to suggest otherwise. Neither parent is dependent on social welfare. Indeed, a degree of affluence is apparent in both camps. Yet the Tribunal heard that OLE’s public school fees had not been paid, and frankly, this is most unfortunate. YHRN is a high-income earner. He lives in affluent part of Sydney. He did not consider it “appropriate” to pay the outstanding school fees given the circumstances. MYGL has had considerable success in business and, as she said in evidence, ‘used to lecture’. She could afford to provide a spare car to OLE in 2022. In this context, the objects of the Assessment Act, referred to above, should be borne in mind.

7. I have taken account of the non-monetary contributions made by MYGL in caring from OLE. I have considered those in conjunction with her modest financial support, which cannot be described as substantial. I find it impossible to conclude that the sum of these contributions amounts to care within the Assessment Act. I am satisfied that the decision reached by AAT1 in substance is correct.

8. I accept that the Tribunal erred in finding that OLE was assessed at the independent rate. That is merely one factor that might be of relevance in deciding whether a parent provides care within the meaning of the Assessment Act.

9. I am satisfied that neither MYGL nor YHRN provided care from 25 March 2022, and that in substance the decision of the AAT1 should be affirmed.

10. The Tribunal therefore revokes the existing care percentages under section 54H of the Assessment Act and makes new care percentages under section 49 reflecting the substance of the AAT1 decision.

    DECISION

11. The Tribunal sets aside the decision of the AAT1 dated 18 October 2023, and in substitution decides that:

    (a)neither parent had any care of the child from 25 March 2022;

    (b)the other party notified Services Australia within a reasonable period after the change in circumstances;

    (c)the care determination that the applicant had 100% care and the other party had 0% care is revoked from 24 March 2022.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

......................................[sgd]..................................

Associate

Dated: 6 September 2024

Date(s) of hearing:	25, 29 July 2024
Date final submissions received:	9 August 2024
Applicant:	By video
Solicitors for the Respondent:	Mr A Taverniti, Sparke Helmore Lawyers
Other Party:	By video