Oldfather and Ottley (Child support)

[2023] AATA 2928

Oldfather and Ottley (Child support) [2023] AATA 2928 (4 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025852

APPLICANT:  Mr Oldfather

OTHER PARTIES:  Child Support Registrar

Mrs Ottley

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  04 August 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review affirmed

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. This review is about a change to the percentage of care determinations for Mr Oldfather and Mrs Ottley in respect of their child [Child 1] (born June 2005).  The child support assessment was recommenced on 16 October 2022.

2. From 16 October 2022 the child support assessment reflected Mr Oldfather as having 0 per cent care and Mrs Ottley as having 100 per cent care of [Child 1].

3. On 28 November 2022 Mr Oldfather notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that neither parent was caring for [Child 1] from 28 November 2022.

4. On 6 January 2023 Child Support made the decision to refuse to reflect that Mr Oldfather provides 0 per cent care and Mrs Ottley provides 0 per cent care of [Child 1] from 28 November 2022.

5. On 9 January 2023 Mr Oldfather objected to this decision and on 21 March 2023 Child Support disallowed the objection (the objection decision).

6. On 24 March 2023 Mr Oldfather 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 August 2023.  Mr Oldfather and Mrs Ottley gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (467 pages).  Prior to the hearing, the Tribunal also received additional information from Mrs Ottley and copies were distributed to the parties (B1–B28).

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, or is likely to have, during a care period (section 50 of the Act).  In other words, Child Support makes care decisions at a point in time based on what has happened up until the change in care is considered and what the likely care is thereafter.  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 into account 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 Oldfather told the Tribunal there were court orders in place relating to the care of [Child 1] but these had not been followed for many years and the parents rarely communicated about his care.  Mr Oldfather said that [Child 1] was no longer living with his mother as she had kicked him out of her home at some time around September 2022 although he was not certain of the date.

2. Mr Oldfather said it was his view that Mrs Ottley was not supporting [Child 1] and he was no longer under her care.  Mr Oldfather said as far as he was aware [Child 1] was working and may also have started receiving a Centrelink benefit such as youth allowance from around 28 November 2022 as he could not afford to pay his rent or buy food.  Mr Oldfather added that Mrs Ottley was not making decisions for [Child 1], and [Child 1] had also finished school.

3. Mr Oldfather said it was clear [Child 1] was supporting himself with little assistance from Mrs Ottley.  Mr Oldfather said under such circumstances, he objected to paying child support.

4. Mrs Ottley told the Tribunal that [Child 1] had been in her full-time care since 2014.  Mrs Ottley said not long after she relocated to [Town 1], [Child 1] decided to move out, and that was around 2 October 2022.  Mrs Ottley said she helped [Child 1] find a place to live and paid his bond and rent.  Mrs Ottley said a few weeks later [Child 1] wanted to move and she then found him new accommodation.  Mrs Ottley said she again helped [Child 1] with the arrangements and paid his rent.  Mrs Ottley said although these places were fully furnished [Child 1] still required bedding and other essentials such as linen which she purchased.

5. The Tribunal notes in evidence from Child Support a transfer of $1,200 made on 2 October 2022 by Mrs Ottley to an account ending in 609 with the description ‘Pay6Week 2Week Rent’.  The Tribunal further notes in evidence transfers made by Mrs Ottley of $400 on 31 October 2022, $400 on 16 November 2022 and $400 on 27 November 2022.  All transfers are made to the same account number and have the description ‘[Child 1]Rent 2Weeks’.  The Tribunal also notes in evidence a screenshot of a transfer of $200 made by Mrs Ottley to [Child 1] on 29 November 2022 with the description ‘[Child 1] GroceriesMom’.

6. Mrs Ottley explained that the rental payments were made direct to the owner of the property and the first payment included bond of four weeks in addition to rent.  Mrs Ottley said she continued to assist [Child 1] with his rent after he moved to his second home although rather than paying the property owner she began transferring the money direct to [Child 1].

7. The Tribunal notes in evidence from Child Support and Mrs Ottley transfers of $800 made on 10 January 2023 and $1,000 made on 10 February 2023.  Both these transfers are to [Child 1] and are made to an account number ending in 693.  The Tribunal further notes screenshots of transfers to [Child 1] of $1,136 on 11 March 2023 and of $1,136 on 9 May 2023.

8. Mrs Ottley said although [Child 1] was no longer living with her she continued to support him financially and emotionally.  Mrs Ottley said [Child 1] was attending [School 1] in 2022 and after he moved out she had made a concerted effort to encourage him to finish school.  Mrs Ottley added she was the primary contact at the school.  Mrs Ottley said she had paid for dental care for [Child 1] and even contributed to a fine relating to a traffic infringement.

9. The Tribunal notes in evidence from Mrs Ottley a copy of a Queensland Certificate of Education awarded to [Child 1] and issued [in] December 2022.  The Tribunal further notes a transfer of funds of $250 from Mrs Ottley to [Child 1] on 22 December 2022 with the description ‘CarFine[Child 1]MomPd’.  The transfer was made to the same account number as the rental transfers made on 10 January 2023 and 10 February 2023.  The Tribunal also notes evidence of Mrs Ottley arranging for [Child 1] to attend an appointment at [Surgery 1] on 9 January 2023 and an invoice from the dentist.

10. Mr Oldfather told the Tribunal he was not aware of any arrangement between [Child 1] and Mrs Ottley relating to the payment of rent and he could not be certain the transfers made by Mrs Ottley were actually to [Child 1].  Mr Oldfather pointed out that Mrs Ottley could have been transferring the money to herself and, in any case, the payments made were not consistent.

11. Mrs Ottley said she had also provided Child Support with statements from third parties which supported that she continued to assist [Child 1] financially and emotionally.

12. The Tribunal notes in evidence from Child Support third party statements from [Ms A], [Ms B], [Ms C] and [Grandmother A] in relation to the care of [Child 1].  [Ms A], a friend of eight years, states that ‘[Child 1] has chosen not to live with his mother since she recently moved home’ but Mrs Ottley ‘not only ensures his wellbeing, but she still pays for his rent and phone’.  [Ms B], a friend of 11 years, confirms that Mrs Ottley has assisted [Child 1] in finding accommodation since moving from home and helps pay his rent as well as contributing to necessities with food, linen and clothes.  [Ms C], a friend of 12 years, states that Mrs Ottley encouraged [Child 1] to finish school when he wanted to quit and helped [Child 1] get to doctor appointments as well as paying for medication.  [Grandmother A], [Child 1’s] grandmother, states that when [Child 1] moved, Mrs Ottley ‘found [Child 1] a suitable room, set him up with linen and all other necessities, pays his rent, groceries, mobile, dentist and medical bills’.

13. It is not in dispute that [Child 1] has not been living with Mrs Ottley since around 2 October 2022.  Mr Oldfather has argued that [Child 1] is independent and receives little support from Mrs Ottley.  Mr Oldfather also believes [Child 1] may be receiving a Centrelink benefit to assist him with his living costs.  Mrs Ottley submits that although [Child 1] is not living with her she is still meeting his financial and emotional needs as well as making decisions about his education and welfare.

14. In such circumstances, care as measured in nights may not be a true reflection of the care arrangements.  The Tribunal must determine whether or not a particular parent is providing ongoing daily care even though the child is living separately from that parent.

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 extra-curricular 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] Polec & Staker & Anor (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.

    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.

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. The weight of evidence strongly indicates that Mrs Ottley has continued to provide both financial and emotional support to [Child 1] after he moved out of her home.  Mrs Ottley was regularly assisting [Child 1] with his rent and living costs.  Mrs Ottley remained the primary contact in relation to school matters and encouraged [Child 1] to complete his schooling.  Mrs Ottley was helping [Child 1] with his health and day-to-day living needs.

19. The Tribunal is satisfied, based on the evidence provided, that Mrs Ottley continued to provide 100 per cent care of [Child 1] even though he was not living at her home.

20. The Tribunal cannot find that there has been a change in care for [Child 1] from 28 November 2022 such that the existing patterns of care are incorrect.

DECISION

The decision under review is affirmed.