Pridhoe and Pridhoe (Child support)
[2024] AATA 2898
•18 June 2024
Pridhoe and Pridhoe (Child support) [2024] AATA 2898 (18 June 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2024/BC027600
APPLICANT: Ms Pridhoe
OTHER PARTIES: Child Support Registrar
Mr Pridhoe
TRIBUNAL:Member R Prasad
DECISION DATE: 18 June 2024
DECISION:
The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 6 May 2023 and a new care determination is made that Ms Pridhoe had 50% care and Mr Pridhoe had 50% care of the child from 7 May 2023.
CATCHWORDS
CHILD SUPPORT – percentage of care – change to the likely pattern of care – existing percentage of care determinations revoked – 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 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
Since 12 July 2016, Ms Pridhoe (the mother) and Mr Pridhoe (the father) have had a registered child support assessment for their youngest child (the child). Services Australia – Child Support (Child Support) has collected child support on the basis the mother had 0% care and the father 100% care of the child from 21 February 2023. These percentages denote the existing percentages of care.
On 25 May 2023, the mother notified Child Support that the child has decided to spend 50% of the time with each parent since 7 May 2023.
On 8 August 2023, Child Support reflected the care of the child as 50% to the mother and 50% to the father from 7 May 2023 (the original decision).
On 10 August 2023, the father objected to the original decision as he had 100% care of the child and from 21 February 2023, the mother had provided care of a total of nine nights.
Following receipt of further evidence from both parents, on 27 February 2024, Child Support allowed the father’s objection in part and reflected the care as 89% to the father and 11% to the mother (the objection decision).
On 4 March 2024, the mother sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard on 15 May 2024. The Child Support Registrar elected not to attend the hearing but provided documentation (folios 1 to 316). The mother appeared by MS Teams audio and provided documentation before and after the hearing (folios A1 to A52). The father also appeared by MS Teams audio and provided a submission after the hearing (folio B1).
ISSUES
The relevant issue before me is whether there was a change to the child’s care arrangements and, if so, the date of effect of the new care determination.
CONSIDERATION
What is required?
Section 49 of the Child Support (Assessment) Act 1989 (the Act) provides that if I am satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for a period (the care period) as I consider to be appropriate in the circumstances, I must determine the percentage of care for the child to be 0%. If an existing determination of care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period as I consider appropriate in the circumstances, under section 50, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.
Section 51 of the Act provides the percentage of care where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with.
The Act, under section 54, defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement such as a court order. Section 54A provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person.
Under section 54F of the Act, a determination of an existing care percentage must be revoked if there is a change to a person’s cost percentage, which is dependent on a change to the care percentage. If notice of the care change is within 28 days after the change occurred, the revocation of the determination takes effect from the day before the change of care day.
Section 54G of the Act is applicable where a person was to have regular care of a child during a care period and has had less than regular care of the child, a determination has been made that the other responsible person had at least regular care of the child, and the other person notified of the care change within a reasonable period. Subsection 5(2) of the Act provides that a person has ‘regular care’ of a child if the person has at least 14% but less than 35% care of the child.
What information has been provided in relation to the care of the child?
The mother advised that Child Support had not taken into consideration the care she provided during the period from June 2023 to December 2023. She provided care calendars that indicate she had 79 nights of care from April 2023 to February 2024 although no pattern of care is evident.
The mother said that even though she may not have physical care, she provides a high level of care through the child’s education and medical needs, and the provision of food. She asserted that the child had low attendance at school and returning to school was causing the child anxiety, so she worked with the school to arrange an alternative timetable focusing only on English, maths and science so the child could return. She helped her with all assignments in Term 1 of this year. The mother said that she organised doctor and psychologist referrals for the child, such as to remove skin tags and when the child was struggling with anxiety. When the child was having anxiety attacks on the bus, the child would call her or her mother. She provided a care table which indicated that on the days she did not have overnight care, she still provided care such as by providing the child with meals, providing emotional support and assistance with schoolwork, collecting the child from friends’ homes or school, sending text messages and transferring money. The mother also provided an invoice from the child’s psychologist that noted it was the fifth of six appointments, and bank statements from October 2023 to April 2024 which have been redacted except to show the purchases or payments she asserts were made for the child, including purchases for food and clothing, payments made to a chemist, and payments made to the school. There were also money transfers made directly to the child.
The hearing papers include statements from the mother’s work colleagues, her cousin and her own mother (the grandmother) that state she has had shared care of the child since 7 May 2023. The mother provided directly to the Tribunal letters of support from a friend, her cousin and the grandmother. The friend’s letter states that she has known the mother for more than 45 years, she was in daily contact with the mother, and she was aware that the mother had overnight care for half of September, the majority of October and half of December 2023. She stated that the mother was concerned about the child’s wellbeing since the child had moved in with the father, and noted a trip they had to [County 1] in January 2024 where the mother paid for the entirety of the child’s trip. She also advised that the mother had been providing transportation for the child at least once a week. The cousin’s letter stated that the mother provides a high level of parental responsibility in relation to the child, and that she has been in the presence of, or in communication with, the mother on many occasions where she has organised or taken the child to medical appointments with the child’s GP and fortnightly appointments to the psychologist. The letter stated the child relied on the mother for most of the core parenting requirements, such as financial needs and mental and emotional support. The letter from the grandmother states that the grandmother had a close relationship with the child prior to moving in with the father in 2023, and that recently it had started to be restored. The grandmother noted the mother had provided care as shown on the mother’s care calendar, and has made several financial contributions, including paying for most of the child’s school fees. She noted that the mother takes the child to see the GP and the psychologist, shopping and to other places. Further, the letter stated the mother drove the child places when the father had lost his licence, and has always bought the child food or transferred money to the child. The mother had liaised with the school when the child was absent due to escalating anxiety, arranged psychologist appointments and would drive the child to the grandmother’s house for food and to transport to school. If the child took a bus to school, the grandmother would pick the child up and the mother would drive the child back to the father’s home after she finished work.
The mother advised that there had been no communication between her and the child in February and March 2023. She and the father had issued domestic violence orders against each other, and the child asked her to drop the case and said that each parent could have equal shared care, but once she withdrew her complaints, it was not until May 2023 that the child started visiting her. The child has again ceased contact since early May 2024. She also confirmed there is no court order or parenting plan in place.
The father disputed the mother’s evidence and said that it was he who had dropped the domestic violence complaints. He confirmed that the mother did help the child with English as the mother is an English teacher, but it was he who had helped the child with maths and science. He asserted that he has actually helped the child with matters related to the school more than the mother, as the child is with him more. He said that he has taken the child to the doctor and asserted that the mother made more suggestions to receive medical treatment, which the child followed. He did confirm that the mother took the child to the psychologist but asserted that it was because of the mother’s treatment of the child that such treatment was required. He stated that the child had stayed with the mother in September and October 2023 but that was to spend time with the child’s sibling who had been released from prison. He disputed the mother feeding the child every meal when the child does not eat breakfast and asserted that the letters of support should not be given any weight as the friend and cousin would not have seen what care has actually been provided by the mother. He noted that care had changed from the night of 21 February 2023 and that he had 89% care until August 2023, and then from September to November 2023 the care was around 60% to the father and 40% to the mother, but since December 2023 the mother has only had ad hoc days of care. In this regard, the mother agreed with the percentages and said that care has been sporadic in 2024. The father stated that since February 2024, the child has been in his care 100% as the child has stopped all communications with the mother.
The father provided statements from friends dated July and August 2023 that said the child was in the father’s care from 22 February 2023, that the mother had around 10 days’ care from that date to 19 August 2023, and when a friend lived with the father for a month from 19 June 2023 the mother has not spent any time with the child. A statement from the child’s sibling’s friend dated 11 August 2023 noted that the father has been seen with the child at least once a week, the child would often visit that friend’s house after the father picked the child up from school, and that the child has commented that they no longer see the mother and that they lived with the father full time.
In his submissions, the father made comments regarding the mother’s motivation for the claim and asserted that she does not have actual proof or documentation about the care she is providing. He stated that he has not been keeping record of everything he has paid and asserted that the bank statements do not confirm who the mother has made the purchases for. During the hearing, he stated that the mother might have only bought the child three items of clothing and that he instead purchases the child clothes. He also queried what guides are being used to determine what it means to just be a parent.
Has there been a change to the care of the child?
I am required to consider the actual care undertaken. While undertaking this task, the Act provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in a parent’s care. I note that I understand I am able to consider relevant events that have occurred after the date of notification of the change in care to inform my decision.[1]
[1] Child Support Registrar v BKCZ [2023] FCA 1109 at [86]; Child Support Registrar v DQFY [2023] FCA 601 at [94].
Section 50 of the Act requires that I be satisfied of the pattern of care for the child during the care period I consider to be appropriate. The mother has notified Child Support that care had changed from 7 May 2023, which is when she says she had more regular care of the child after the child had gone into the father’s care. The sworn evidence of both parties is conflicting, and they have provided statements to support their claims. However, both parents have agreed that based on the overnight care, until August 2023, the father has had 89% care and the mother 11% care, from September to November 2023, the father has had 60% care and the mother 40% care, and since around December 2023 the mother has only had sporadic overnight care. While the parents have agreed that this is the care that has occurred during those periods, I am considering the pattern of care that occurred in the care period. Further, the mother has asserted that she has continued to provide care in other forms in addition to the overnight care, which I must also consider.
I have considered the decision of the Federal Magistrates Court in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, when making this finding. That matter provides guidance on the factors that could be considered when determining whether a parent is providing care for a child:
a.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?
b.To what extent does the person make arrangements for others to meet the needs of the child?
c.To what extent does the person pay for the costs of meeting the needs of the child?
d.To what extent does the person otherwise provide financial support for the child?
e.To what extent does the child provide for his or her own needs or have those needs met from another source?
f.To what extent is the child financially independent or financially supported from another source?[2]
[2] Polec at [56].
Having considered these factors, I am satisfied that in addition to the care the father provides, the mother has been providing care for the child. The parents are not disputing that the mother had varied overnight care of the child from 7 May 2023 to November 2023. In addition, the mother has provided evidence that she is providing support by buying the child food and clothing, arranging for the child’s education and paying fees, providing financial support, as well as making arrangements for the child’s transport and health care. The father has not disputed the mother has assisted the child as she is an English teacher, that she has arranged for the child to see a psychologist and has bought her some clothing and food. While he disputes the motives for the mother and says that he also does these things, it does not mean that the mother is not providing for the child’s needs even if he may not agree with them.
While the overnight care does not show any particular pattern of care, the other forms of support the mother has provided show she has had continuous care since May 2023 until the child stopped all contact in May 2024.[3] I am satisfied that this shows that the parents had equal care of the child during this care period.
[3] I note any subsequent care changes should be notified directly to Child Support for a new care percentage determination.
Having considered the information before me, I am satisfied that the requirements of section 50 of the Act are met and the pattern of care for the mother has been 50% since 7 May 2023. In relation to the father’s care, the requirements of section 50 are also satisfied as there was likely to have been a pattern where the father had 50% care of the child from 7 May 2023.
I note that there is no existing care arrangement, and therefore section 51 of the Act is not applicable. Further, I do not consider that either parent has had less than regular care, and therefore section 54G does not apply. Accordingly, pursuant to subsection 54F(3) of the Act, the date of revocation of the determination of the existing percentage of care is 6 May 2023.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 6 May 2023 and a new care determination is made that Ms Pridhoe had 50% care and Mr Pridhoe had 50% care of the child from 7 May 2023.
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