Philbert and Piggott (Child support) - [2020] AATA 1751

_{Philbert and Piggott (Child support) [2020] AATA 1751 (17 April 2020)}

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2020/PC018343

APPLICANT: Ms Philbert

OTHER PARTIES: Child Support Registrar

Mr Piggott

TRIBUNAL: Member A Ducrou

DECISION DATE: 17 April 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether the parent was caring for the children even if the children were not residing with that parent - existing percentage of care determinations correctly revoked and new determinations made - 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

Ms Philbert and Mr Piggott are the separated parents of a daughter aged 15 and a son aged 13 (referred to as the children) in respect of whom there is a child support assessment. This review is about the percentages of care for Ms Philbert and Mr Piggott that apply in relation to the administrative assessment of child support for the children.
The Department of Human Services – Child Support (the Department) recorded that from 19 November 2015 Ms Philbert had a percentage of care for the children of 100% and Mr Piggott had a percentage of care of 0%.
Mr Piggott contacted the Department on 28 December 2018. He advised that a Child Protection caseworker notified him that Ms Philbert had not had any care of the children since 12 December 2018. Mr Piggott advised that both children were living in Ms Philbert’s sister’s house and that Child Protection were working to obtain full care of them. Mr Piggott advised that Ms Philbert was not contactable and that she had left the children in her mother’s care. The Department made attempts to contact Ms Philbert but was unable to do so.
On 11 January 2019 a delegate of the Child Support Registrar (the Registrar) decided to make new percentage of care determinations for the children to reflect that from 12 December 2018 Ms Philbert had a percentage of care of 0% and Mr Piggott had a percentage of care of 0%.
On 18 February 2019 Ms Philbert lodged an objection to the decision made on 11 January 2019. On 12 April 2019 an objections officer of the Department decided to disallow the objection.
On 5 February 2020 Ms Philbert lodged an application for review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was lodged by telephone.
The tribunal conducted a hearing on 27 March 2020. Ms Philbert and Mr Piggott participated at the hearing by conference telephone. They gave oral evidence on affirmation and made oral submissions. The Registrar did not attend the hearing. The tribunal had before it documents provided by the Registrar (numbered 1 to 116). Ms Philbert provided documents prior to the hearing (numbered A1 to A76). The review was deferred for Ms Philbert to provide further information to the tribunal. The tribunal received documents from Ms Philbert after the hearing (numbered A77 to A78). Copies of all documents including A1 to A78 were provided to the parties. The tribunal made its decision on 17 April 2020.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
The issues which arise in this case are:
· Did the pattern of care for the children change; and
· Do new care percentage determinations apply?

CONSIDERATION

Issue 1 – Did the pattern of care for the children change?

The legislation establishes a system for the assessment of the rate of child support payable in a child support case. In most cases a statutory formula is applied. The percentage of care for a parent of the child affects the annual rate of child support assessed and payable. A parent’s percentage of care is determined under sections 49 or 50 of the Act. Sections 49 and 50 require a new determination of a parent’s percentage of care for a child to be made in certain circumstances. Prior to making a new percentage of care determination under these provisions it is necessary to determine whether the existing care percentage determination can be revoked.
In determining the percentage of care to be applied for a parent in the administrative assessment of child support for a child, the decision maker (the tribunal in this review) is required to consider the actual, or likely, pattern of care that the parent will have in relation to the child during the care period. There is a temporal element in reviewing care percentage decisions having regard to the actual, or likely, pattern of care at the point in time of notification to the Department. It is not appropriate, in undertaking that task, to assess care based on what happened after the original decision was made up to the time of the tribunal hearing. Evidence of the care for this period is not likely to be relevant, save to the extent that it may inform the actual, or likely, pattern of care as at the date of notification.
The “care period” is the period which the decision maker considers is appropriate having regard to all the circumstances of the case. Section 2.2.1 of the Department’s online policy guide, the Child Support Guide (the Guide), states that a care period is generally a 12-month period from the day on which the actual care of a child began or changed. The tribunal is not bound by policy. However, in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 the Full Court of the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case the tribunal accepts that the policy in the Guide is consistent with the objects of the Act and that it assists the tribunal in making determinations under the legislation in relation to the care provided by the parties for the children.
Under subsection 12(2AA) of the Act a “child support terminating event” happens in relation to a child if both 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. “Eligible carer” is defined in section 7B of the Act. The combined effect of section 7B and the definition of “shared care” in section 5 of the Act is that a person must have a care percentage of at least 35% for a child during a care period to be an eligible carer in relation to the child. Under section 74 of the Act if child support is payable and there is a child support terminating event the Registrar must immediately take such action as is necessary to take account of the event and section 75 of the Act provides for the amendment of an administrative assessment to give effect to a child support terminating event.
Section 2.2.1 of the Guide sets out the approach to be taken by the decision maker where there is doubt as to whether, and to what extent, a person is caring for a child and lists factors for consideration (where relevant). The factors include: the extent to which the person has control of the child in terms of overall responsibility and decision making for major decisions involving the child; the extent to which the person meets 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; the extent to which the person pays for the costs of meeting the needs of and other financial support for the child; and the extent to which the child provides for their own needs or receives financial support from another source.
It is clear from the applicable case law that for the purposes of the Act care is multi-faceted and has a broader meaning than merely referring to the provision of accommodation or financial support of a child (Parent A and Child Support Registrar and Anor [2014] AATA 199). The tribunal was satisfied that it is appropriate in a case such as this to consider the totality of the care being provided, and to have regard to relevant matters as set out in the Guide.
The tribunal finds that Ms Philbert and Mr Piggott are the separated parents of the children. Based on the Departments records, the tribunal finds that from 19 November 2015 the Department recorded percentages of care for the children of 100% for Ms Philbert and of 0% for Mr Piggott. The percentages of care were applied in the administrative assessment of child support for the children from 19 November 2015.
Based on the Department’s records and the evidence presented by Mr Piggott the tribunal finds that Mr Piggott contacted the Department on 28 December 2018. Mr Piggott advised that he had been notified by a Child Protection caseworker that Ms Philbert had not had any care of the children from 12 December 2018. There was no dispute that the children were not in Mr Piggott’ care on 12 December 2018. Mr Piggott told the tribunal that he received a message from the caseworker asking him if he was the children’s father. The only information he had about the children’s living arrangements was based on information from the caseworker.
Ms Philbert maintained that the children had remained in her care for 100% of the time. She gave evidence that in December 2018 she was living in a country town in New South Wales. She moved to that town in 2016 and lived at her sister’s house with her sister, her mother and the children. The children attended school there. After she moved there, her sister moved overseas but Ms Philbert, her mother, and the children remained. Her sister’s house was in a remote location and there were problems with telecommunications. In December 2018 her son was taken to hospital from his school, but she couldn’t be contacted because the telephone didn’t work. She didn’t know about her son being in hospital until police came to the house. She went to the hospital straight away. A Child Protection caseworker assumed that because she could not be contacted by telephone she had already moved to another town in a different region of New South Wales. She had been making plans to move to the other town with her mother and the children in January 2019, but she had not moved there, and was not living there in December 2018.
Ms Philbert told the tribunal that the information that the caseworker gave the Department about her circumstances is false. She has no idea as to the caseworker’s motives for providing false information, but she lodged a complaint about the caseworker. Ms Philbert confirmed that she met the caseworker and that she, her mother and the children spoke to the caseworker when they came to her sister’s house. She has not spoken to the caseworker since. Ms Philbert noted that she has been her mother’s carer for some time and that she has received carer payment for her mother since 2016. What the caseworker said about her mother providing care for the children is not correct. Her mother is not able to provide care of them because of her disabilities as she is going blind and deaf.
The documentary evidence that Ms Philbert provided was consistent with her account that she, the children and her mother moved to a town in a different region of New South Wales in January 2019. However, Ms Philbert’s documents contained limited information in relation to the period before then. Her documents included a written statement dated 19 February 2019 from her mother stating that the children were in Ms Philbert’s care from October 2014 to the end of 2015 and a written statement dated 25 February 2019 from her mother stating that the children are 100% in the care of Ms Philbert and have been for their entire lives.
The Department’s records show that Ms Philbert was telephoned on 5 April 2019. Her mother answered the call and put Ms Philbert on the line. Ms Philbert advised that she had made an official complaint about the caseworker. She advised that she had been her mother’s carer for many years as her mother was going deaf and that she and her mother live together. Her sister had been living overseas for years and would not have had the children in her care. Ms Philbert was asked if she would be able to obtain a statement from her sister. She advised that her sister was a highly successful businesswoman, travelling frequently and is very busy. She and the children lived in her sister’s home up until late 2018 and had moved. The children were attending school in the region to which they had relocated. The Department noted that Ms Philbert’s mother verified the information Ms Philbert provided. The file note stated that it was difficult to speak with Ms Philbert’s mother due to hearing difficulties.
The Department’s records show that there were previous discussions with Ms Philbert about whether she could provide information from other sources about the care she provided for the children. Ms Philbert expressed concerns about the location of her and the children being revealed to Mr Piggott. She asked the Department to contact the children’s schools to confirm their enrolments, but the Department advised her that it would not do this as the schools would not provide that information. Subsequently, Ms Philbert advised that she had requested a statement from another source but that it had not been provided due to privacy issues. The police station also told her this.
The objections officer noted that Centrelink provided information confirming that in November 2018 Ms Philbert changed her address to the town she claimed to have moved to in January 2019. The tribunal drew Ms Philbert’s attention to this at the hearing. Ms Philbert told the tribunal that she changed her address for Centrelink when she rented a house to live in before she moved towns. It was a private rental and there was no written lease. Despite renting the house she had to wait until the end of the school year before moving.
Ms Philbert acknowledged that her sister pays her daughter’s private school fees. She told the tribunal that although her sister pays the fees, the payments come out of her mother’s funds. It was not clear what Ms Philbert meant by this. It appeared that she may have been referring to the payments being deducted from her inheritance when her mother passes away. Ms Philbert told the tribunal that she pays for the children’s food and other living expenses. She also pays for the expenses of her son’s public education including for school uniforms. Any decisions that are made about the children’s education are made as a family. While her daughter chooses what school she attends the decision also involves consideration of what Ms Philbert’s sister can afford. Ms Philbert signs all permission slips required by the children’s schools. She is the only person listed as their emergency contact. The children do not have any income. If they need medical treatment, she takes them.
After the hearing the tribunal received a statutory declaration made on 7 April 2020 by Ms Philbert’s sister. It was made overseas and was witnessed by video by a lawyer in Australia. In the declaration Ms Philbert’s sister stated that Ms Philbert was residing in her house with the children and her mother during the period of December 2018 and January 2019 (and earlier) to provide care to their mother after she fell and was injured. Ms Philbert’s sister stated that she was residing overseas.
The evidence that Ms Philbert presented contrasted directly with information that the Child Protection caseworker provided to the Department on 12 April 2019. Prior to 12 April 2019 the caseworker had not been in contact with the Department. The only information that the Department had received from the caseworker was an email dated 14 January 2019 that Mr Piggott had forwarded, setting out information the caseworker had obtained from the children regarding who they lived with since October 2014. Of relevance to this review, the email stated that from October 2018 to currently the children were living with Ms Philbert’s mother.
On 12 April 2019 the caseworker spoke to the objections officer. The file note of that conversation is included in the Registrar’s documents. The file note states that the caseworker became involved with the family when Ms Philbert’s son was hospitalised and no adults in his life were contactable. It goes on to state (relevantly and in summary):

The children were living with Ms Philbert’s mother in Ms Philbert’s sister’s house. Ms Philbert was not living there. She was living in a different town. Ms Philbert stayed in her sister’s house from time to time, but she would leave the children with her mother for three or four month periods and return to the other town;
The children provided the dates the caseworker gave to Mr Piggott. They were verified by Ms Philbert’s mother;
When Ms Philbert’s son went to hospital, Ms Philbert was in the town where her sister’s house is. When her son was released from hospital, she took him back to her mother. She then returned to the other town;
Ms Philbert’s mother organises and pays for the children’s needs including for grocery home deliveries and school fees;
Ms Philbert’s daughter provides physical assistance to her grandmother. Ms Philbert does not;
Ms Philbert’s mother has disciplined Ms Philbert’s son due to behavioural issues and has locked him out of the house a few times. Ms Philbert was not present during those incidents;
The caseworker has been to Ms Philbert’s sister’s house for home visits and has spoken at length with Ms Philbert’s mother and the children. Ms Philbert was not present at those times. She was reported to be in the other town;
When Ms Philbert’s mother became unwell, Ms Philbert’s sister organised for the family to move to the other town so that Ms Philbert could care for her mother. This occurred at the end of January 2019;
Ms Philbert’s sister is living overseas. When she is home Ms Philbert’s sister makes arrangements for her mother and the children. She pays for private schooling for Ms Philbert’s daughter. Ms Philbert’s son is enrolled at high school.

In her statutory declaration, Ms Philbert’s sister stated that she was residing overseas in December 2018. Ms Philbert confirmed this at the hearing. While the tribunal accepted that Ms Philbert’s sister provided her house as accommodation for Ms Philbert, their mother and the children the tribunal was not satisfied that the evidence demonstrated that Ms Philbert’s sister had direct knowledge of where Ms Philbert was residing or of whether or not Ms Philbert was providing care for the children when Mr Piggott contacted the Department on 28 December 2018.
The information that the caseworker provided to the objections officer about undertaking home visits with the children and Ms Philbert’s mother at Ms Philbert’s sister’s house prior to them moving to the other town was consistent with the caseworker observing and having direct knowledge of the children’s living arrangements. Ms Philbert, herself acknowledged that the caseworker came to the house once. The tribunal noted that the caseworker is employed by the New South Wales Department of Family and Community Services, an independent body and that the caseworker was not related to and did not have a pre-existing relationship with Ms Philbert or her family. The limited evidence that Ms Philbert gave about the care of the children in December 2018 was not corroborated by independent sources with direct knowledge of the situation. Ms Philbert provided documentation that confirmed that her sister paid for her daughter’s private school fees. The tribunal was not provided with documentation that confirmed that Ms Philbert paid other expenses for the children. Having examined the oral and documentary evidence carefully, the tribunal preferred the information that the caseworker provided about the children’s care over the evidence of Ms Philbert.

Based on the available evidence the tribunal concluded that the appropriate care period was the 12-month period that commenced on 12 December 2018. The tribunal accepted that the evidence indicates that Ms Philbert and the children may have spent some time together. However, the tribunal was not satisfied, based on the available evidence and having regard to the matters referred to in section 2.2.1. of the Guide that the children were in the care of Ms Philbert during the care period that commenced on 12 December 2018. The tribunal concluded that the evidence established that Ms Philbert’s pattern of care for the children changed from 12 December 2018 and that Ms Philbert had and was likely to have no pattern of care for the children during the care period that commenced on 12 December 2018.

Issue 2 – Do new care percentage determinations apply?

The provisions relating to the revocation of a determination of a person’s percentage of care are set out in subdivision C of Division 4 – Percentage of Care in Part 5 of the Act. Section 54F of the Act is relevant and provides for the mandatory revocation of an existing care percentage determination in specified situations.
The existing determinations of Ms Philbert’s and Mr Piggott’ percentages of care for the children when the notification of the change in care was made on 28 December 2018 were 100% for Ms Philbert and 0% for Mr Piggott. It was not at issue that the existing percentage of care for Mr Piggott for the children did not change and remained at 0%.
The tribunal was satisfied that the evidence established that the requirements for the revocation of Ms Philbert’s existing percentage of care for the children under section 54F of the Act were met. The tribunal determined to revoke the existing determination of the percentage of care for Ms Philbert for the children in accordance with section 54F with effect from the end of 11 December 2018 which was the end of the day before the change of care day. For the reasons already discussed the tribunal was satisfied that the change of care day was on 12 December 2018.
Under section 49 of the Act, if the tribunal revokes an existing care percentage determination and is satisfied that a parent has, or is likely to have, no pattern of care for a child during a care period the tribunal must attribute the parent with a percentage of care for the care period of 0% unless section 51 applies. Based on the evidence before it the tribunal was satisfied that section 51 did not apply. Therefore, in accordance with section 49 of the Act the tribunal is required to make a new determination of the percentage of care for the children of 0% for Ms Philbert for the care period that commenced on 12 December 2018. Under subparagraph 54B(2)(d)(ii) of the Act the new determination applied from 12 December 2018, being the day that began immediately after the day when the previous determination was revoked.
As neither Ms Philbert nor Mr Piggott had at least 35% care of the children from 12 December 2018, neither parent had at least shared care of the children and Ms Philbert and Mr Piggott were not eligible carers in respect of their children. There was no application for an assessment of child support in favour of a non-parent carer for the children as at 12 December 2018. Therefore, a child support terminating event in respect of the children happened on that date. Under section 74 of the Act the child support assessment for the children ended from 12 December 2018.
The tribunal observed that as noted by the objections officer it is open to Ms Philbert to make a fresh application for the administrative assessment of child support for the children if she believes that circumstances have changed.

DECISION

The decision under review is affirmed.