Niles and Davies (Child support)

[2019] AATA 2523

Niles and Davies (Child support) [2019] AATA 2523 (18 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016034

APPLICANT:  Ms Niles

OTHER PARTIES:  Child Support Registrar

Mrs Davies

TRIBUNAL:Member K Buxton

DECISION DATE:  18 June 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that from 16 March 2018 no change in care occurred for the child, [Child 1]. It follows that no terminating event occurred on that date.

CATCHWORDS

CHILD SUPPORT – terminating event – whether there was a change to the likely pattern of care – child living in youth accommodation and paid youth allowance at the independent rate – 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. Mr Davies and Mrs Davies are the parents of [Child 1], born September 2001. A child support case is registered with the Child Support Agency (CSA) and [Child 1] was recorded as in the 100% care of Ms Niles from 20 December 2017. On 2 July 2018, Mr Davies informed the CSA that Ms Niles no longer had care of [Child 1] as he was now living independently. The CSA contacted Ms Niles who stated that [Child 1] had commenced staying in Government-funded youth accommodation but still resided with her for three nights per week and that she continued to have care of [Child 1]. The CSA decided to record [Child 1] as in the 0% care of Ms Niles and both parents from 16 March 2018 and determined that a terminating event had taken place from that date such that the child support assessment came to an end.

2. Ms Niles objected to the CSA’s decision and a CSA objections officer disallowed the objection. Ms Niles then applied to the tribunal for review of the objection decision. Two review applications were accepted by the tribunal relating to the two child support cases registered with the CSA, one in which Mr Davies is the paying parent and the other in which Mrs Davies is the paying parent. Mrs Davies contacted the tribunal prior to the hearing and stated that she did not wish to participate. The parties gave permission prior to the hearing for the evidence in each application to be regarded by the tribunal as evidence in the other application. The matters were listed for hearing in seriatim on 18 June 2019. However, as Mrs Davies did not wish to participate, the tribunal heard sworn evidence only from Ms Niles, who appeared at the hearings in person, and Mr Davies who gave evidence by telephone, and accepted into evidence statements and documents provided by the CSA (Exhibit 1) and further documents provided by Ms Niles (Exhibit A) and by Mr Davies (Exhibit B) under subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

CONSIDERATION

1. The tribunal is to determine whether there has been a care change for [Child 1] and whether the circumstances have given rise to a terminating event. The law relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Act) which provides for the ending of a child support assessment in certain circumstances. Child support is payable until the day immediately before the day on which a terminating event occurs (subsection 31(2) of the Act). A terminating event happens (under paragraph 12(1)(e) of the Act) if the child becomes a member of a couple. A terminating event also happens (under subsection 12(2AA) of the Act) in relation to a child if both of the parents of the child are not eligible carers of the child and there are no non-parent carers entitled to be paid child support in relation to the child.

2. The term “eligible carer” is defined in section 7B of the Act and includes, relevantly, a person who has at least shared care of the child. A person has at least shared care of a child if they have at least 35% care of the child: section 5 of the Act. Section 74 of the Act provides that if child support is payable and there is a child support terminating event, the CSA must immediately take such action as is necessary to take account of the event, which includes amendment of an administrative assessment to give effect to the terminating event (under section 75 of the Act).

3. Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination should be revoked. Subsection 54F(1) of the Act provides that the determination must be revoked in circumstances where a different cost percentage would apply if the care percentage determination was changed. Sections 49 and 50 require consideration of the actual, or likely, pattern of care that the parents will have in relation to the child.

4. Ms Niles is the second cousin of the child, [Child 1]. Until December 2017 [Child 1] resided with his [grandparents] in a house in a street neighbouring that where Ms Niles lived with her partner, [Mr A]. Ms Niles stated that she did not know [Child 1] all that well until he came to see her in late October 2017 stating that he could no longer live with his grandparents. [Child 1] did return to the care of his grandparents until, in December 2017, he moved in with Ms Niles and [Mr A] permanently. [Child 1] was recorded by the CSA as in Ms Niles’ 100% care as the non-parent carer at that time.

5. Ms Niles gave oral evidence at the hearing about the various arrangements made by and for [Child 1] and the care she provided both prior to and following 16 March 2018. Mr Davies did not provide any evidence which contradicted the sworn evidence of Ms Niles, and he accepted that he had not been present to observe the circumstances giving rise to that evidence as he lives a considerable distance away and was caring for his very young daughter at times material to the evidence. Ms Niles presented as a witness of truth and the tribunal accepts her evidence as an accurate account of the relevant circumstances, which are summarised below.

6. During 2018 [Child 1] was undertaking year 12 at a local secondary school. In January 2018 Ms Niles took [Child 1] to Centrelink to connect him with the services available for his support. They were referred to a youth support social worker at “[Residential Program]” house. [Child 1] was granted youth allowance at the independent rate in January 2018, although he was living with an adult carer at the time. [Child 1] later expressed the view that he would like to live independently, and considered legal options available to him at that time. [Child 1] decided to access a program providing accommodation to homeless youths and, in March 2018, he was provided a unit to share with a 20-year-old female who also had access to the program. The unit was closer to his school, to which [Child 1] sometimes travelled by bicycle, and offered more direct public transport links to school than Ms Niles’ home. Ms Niles stated that [Child 1] had previously been driven to school by his grandmother, but that she and her partner did not drive [Child 1] every day whilst he resided with them.

7. Ms Niles stated during the hearing that she was supportive of [Child 1’s] wish to live independently, but did not consider he had the skills or maturity to gain complete independence straight away, and that he did not understand the ramifications of what it would take to live on his own. [Child 1] received about $500 per fortnight in youth allowance and was required to pay $300 fortnightly for his accommodation, including utilities. Ms Niles stated that [Child 1] used the rest of the allowance, of about $100 per week, to meet the costs of his mobile phone, the costs when out with friends and on some food. Ms Niles stated that, after rental costs, [Child 1] did not have sufficient money left each week in order to support himself and was not sufficiently independent to do so, and needed to concentrate on completing his year 12 studies. Ms Niles resolved to continue to support [Child 1], which she did in the following ways:

   ·     [Child 1] stayed in Ms Niles’ overnight care for one night, usually Wednesday, and on Friday and Saturday nights during term time, and for all of the school holidays, which would equate to in excess of 50% of nights if considered annually.

   ·     Ms Niles provided almost all of [Child 1’s] food, including dinners in her home each school night and on weekends, and providing food packs for him to take back to the unit and eat.

   ·     Ms Niles liaised with [Child 1’s] school in relation to decisions around subject choices and guidance, and he did his homework using the internet at her home each afternoon.

   ·     Meeting the costs of [Child 1] learning to drive, including his learners’ permit, professional driving lessons and many hours of accompanied driving, the costs of gym membership and supporting nutrition.

   ·     Meeting the costs of clothing, shoes and underwear for [Child 1], including during times of a growth spurt and change in body type.

   ·     Meeting costs of medications for acne and IBS.

   ·     Maintaining increased internet allowance.

   ·     Meeting the costs of haircuts, his suit for his graduation and many sundry expenses.

   ·     [Child 1] attended to his laundry at Ms Niles’ home, although Ms Niles stated that he used her washing machine himself.

10.  If a child is able to, and does, meet his or her own needs, a terminating event will occur as that child is no longer in the care of another. Often an indication that this has occurred is the granting of youth allowance at the independent rate. However, in this case, youth allowance was granted at the independent rate for [Child 1] before he rented accommodation. His needs were being met completely by Ms Niles prior to [Child 1] accessing the rented accommodation on 16 March 2018. The most relevant change which took place from that date is [Child 1] began to sleep at the unit for four nights each school week and get himself to school the following day. In most other respects, the care provided by Ms Niles remained unchanged. Ms Niles stated that the rate of youth allowance increased by about $60 per fortnight from 16 March 2018. The tribunal notes that the accommodation and utility expenses incurred by [Child 1] from that date accounted for 60% of the allowance available to him to meet his own expenses. The tribunal accepts that Ms Niles met almost all of the costs for [Child 1] after this date other than the accommodation, utilities and his personal mobile phone and spending money.

11.  The child support assessment in place in March 2018 calculated the costs for [Child 1], having regard to the combined incomes of the parents, as $10,584. Ms Niles estimated that she spent at least $1,000 each month in meeting costs for [Child 1] in addition to the physical care she provided. Mr Davies submitted that the objection decision was correct as [Child 1] was living independently or, alternatively, that there was no reason why he could not have continued to live with his grandparents and therefore that it was not necessary for the care to have been undertaken by Ms Niles. The tribunal notes that, whatever the reasons may have been which led [Child 1] to the home of Ms Niles, it was Ms Niles, rather than either parent, a grandparent, or indeed [Child 1] himself who was providing the majority of the care for [Child 1]. From 16 March 2018 Ms Niles continued meeting his costs, assisting with decision-making and providing at least half of his overnight care. The activities undertaken by Ms Niles both before and after this time constituted the meeting of the majority of the needs of [Child 1], and clearly more than 35% of his care, and were sufficient to indicate that Ms Niles continued to be an eligible carer of [Child 1] for child support purposes from 16 March 2018.

12.  The tribunal finds that, from 16 March 2018, no change of care took place and therefore no terminating event occurred in the child support case, as Ms Niles remained an eligible carer. As the tribunal has reached a different decision to that under review, that decision is set aside and a decision substituted that gives effect to the tribunal’s findings.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that from 16 March 2018 no change in care occurred for the child, [Child 1]. It follows that no terminating event occurred on that date.