Sadhvani and Sadhvani (Child support)

[2019] AATA 430

Sadhvani and Sadhvani (Child support) [2019] AATA 430 (25 January 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC015309

APPLICANT:  Ms Sadhvani

OTHER PARTIES:  Mr Sadhvani

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  25 January 2019

DECISION:

The decision under review is varied so that the child support case is terminated with effect from 26 March 2018.

CATCHWORDS

CHILD SUPPORT – child support terminating event – child living away from home – whether parent provides ongoing daily care – decision under review varied

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

1. This case concerns the child support payable in respect of Ms Sadhvani’s and Mr Sadhvani’s youngest child, [Child 1], who was born [in] April 2000. A child support case was registered with the Department of Human Services - Child Support (“the CSA”) in 2008 and Ms Sadhvani was recorded as providing 100% care to [Child 1].

2. On 21 November 2017, Mr Sadhvani contacted the CSA and it noted the following (with minor typographical errors corrected):

   [Mr Sadhvani] advised child left the school.

   I advised him leaving the school [does] not make the case end. I advised him as long as child living under mother’s care case will continue until child turns 18 years.

   He advised child is not living with mother.

   I advised him though both child and mother not living under the same roof if mother financially support the child then it won’t be a terminating event.

   He advised he will contact later once is [is] able to confirm that.

3. [In] April 2018, [Child 1] turned 18 and the child support case was terminated.

4. On 13 June 2018, Mr Sadhvani informed the CSA that Ms Sadhvani had ceased providing care on or about 21 November 2017. The CSA subsequently concluded that [Child 1] had been in neither parent’s care from 21 November 2017 and it terminated the child support case from 17 November 2017. Ms Sadhvani objected to that decision. An objections officer disallowed her objection. She sought further review by the Tribunal. I heard the matter on 25 January 2019. I spoke to Ms Sadhvani and Mr Sadhvani by conference phone.

5. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”), but the Act does not define the concept of care. Departmental policy has been developed to assist decision-makers. The Tribunal is not bound by departmental policy but will generally apply the policy unless there is a reason to do otherwise. Such an approach promotes consistency in decision-making. The relevant policy in this case is contained at 2.2.1 of the Child Support Guide:

   Older children living away from home

   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 who lives separately from that person.

   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.

6. Ms Sadhvani and Mr Sadhvani live in [Town 1]. [Child 1] completed school in mid-November 2017 and went to “schoolies” for a short period and then, on or about 21 November 2017, he moved to [City 1] where he had obtained a contract to [provide services] for [Agency 1]. He was paid $15,000 per annum, or approximately $290 per week.

7. [Child 1] originally stayed with his sister and her then-partner in an apartment in [City 1], and the three of them moved to a house in [City 1] about a month later. [Child 1’s]portion of the rent was $150 per week.

8. Ms Sadhvani’s evidence can be summarised as follows:

• When [Child 1] moved to [City 1] he only had his clothes. Ms Sadhvani travelled to [City 1] regularly - sometimes weekly and sometimes fortnightly - to check on him and bring him food that she had prepared at home. She bought him what he required, such as groceries, clothes, towels, petrol for his car, and so on.

• [Child 1] obtained part-time work at [Business 1] and she bought him his uniform. She estimated that he worked for several weeks at [Business 1] and averaged a total of one day’s work per week, although he sometimes performed that work in split shifts.

• (Ms Sadhvani’s evidence concerning [Child 1’s] employment with [Business 1] was vague and, at times, contradictory. However, I am mindful that Mr Sadhvani initially reported a possible change in care in November 2017 but did not pursue the matter at the time, and he did not raise the matter again until June 2018, and the parents are now trying to recall events that occurred approximately one year ago.)

• [Agency 1] tried to organise more stable employment for [Child 1] and he was referred to a number of potential employers in the [named] industry. He performed unpaid labour on a trial basis for a number of potential employers, and commenced a paid apprenticeship on 26 March 2018.

• Ms Sadhvani communicated with [Child 1] at least daily, and sometimes several times per day.

• Ms Sadhvani would sometimes drive to [City 1] to collect [Child 1] and drive him back to [Town 1] on the same day, and then she would drive him back to Townville a day or so later. (According to Google Maps, it is approximately [a timed] round trip.) He would return to [Town 1] for medical appointments, social gatherings, and to simply be with Ms Sadhvani.

• On one occasion in or about February 2018, [Child 1] became homesick and Ms Sadhvani took one week’s leave from her employment and spent the week with [Child 1] in [City 1].

1. Ms Sadhvani provided copies of her bank account statements. The locations of transactions support her oral evidence that she regularly travelled to [City 1]. The details of the transactions provide some support for her oral evidence that she regularly purchased items for [Child 1].

2. As I noted during the hearing, I added up the transactions that appeared to relate to Ms Sadhvani’s trips to [City 1] and compared them to Mr Sadhvani’s rate of child support payable. From 21 November 2017 to 31 December 2017, Ms Sadhvani’s [City 1] expenses were $1,203 and Mr Sadhvani’s child support payable was approximately $590. From 1 January 2018 to 28 February 2018, Ms Sadhvani’s [City 1] expenses were $1,733 and Mr Sadhvani’s child support payable was approximately $944. From 1 March 2018 to 20 April 2018, Ms Sadhvani’s [City 1] expenses were $1,230 and Mr Sadhvani’s child support payable was approximately $826. It may be that Ms Sadhvani incurred other expenses that were not recorded in her bank account statement but, in any event, the bank account statements alone suggest that Ms Sadhvani was providing significant financial support to [Child 1], which significantly exceeded the child support payments that she was receiving from Mr Sadhvani.

3. Both parents agreed that while [Child 1] was living in [City 1] he owned his own car, but Ms Sadhvani continued to drive him to [Town 1] when he wanted to return to [Town 1]. Ms Sadhvani said she would not allow [Child 1] to drive such long distances because he was an inexperienced driver. Mr Sadhvani said [Agency 1] treated [Child 1] very well and he had preferred being driven by someone else, rather than driving himself. On that issue, I consider Ms Sadhvani’s evidence to be the likely explanation. [Child 1’s] decision to spend approximately [time] hours in a car with his mother whenever he decided to return to [Town 1] is also consistent with other evidence that he was, at times, homesick.

4. Mr Sadhvani said [Child 1] was paid for some of his temporary work in the [named] industry prior to commencing his apprenticeship. Ms Sadhvani said that she did not think he was paid for that work. In response to further questions, Mr Sadhvani acknowledged that he was not certain that [Child 1] was paid for that work, but suggested that it was inherently unlikely that he would have done such work without remuneration. Mr Sadhvani explained that he had limited contact with [Child 1]. Both parents stated, at different times, that they had not pressed [Child 1] or other family members to provide evidence for this case; they had both sought to avoid involving other family members. Given Ms Sadhvani’s regular contact with [Child 1], I prefer her evidence on that issue.

5. Towards the end of the hearing, Ms Sadhvani submitted that [Child 1] had remained in her care “at least up until” 26 March 2018, when [Child 1] commenced his apprenticeship. She also stated that “once he got full-time work he was pretty much ok.”

6. Mr Sadhvani noted that on one occasion he travelled to [City 1] and bought [Child 1] groceries and gave him $400. There is no suggestion that Mr Sadhvani commenced providing ongoing care as a result of that exchange.

7. Viewing the evidence as a whole, I find that Ms Sadhvani provided a significant level of financial support to [Child 1] until at least when he commenced his apprenticeship. I accept her evidence that she was in daily contact with him, sometimes speaking to him several times per day, and he required that emotional support because he was, at times, homesick. I also accept Ms Sadhvani’s evidence that she regularly travelled to [City 1] to check on [Child 1], and she brought him home-cooked meals and she purchased things that he needed. On occasions she drove to [City 1] to collect him and drive him back to [Town 1], and she drove him back to [City 1] the following day or so. I also accept her evidence that she took a week’s leave from her employment to be with him in [City 1] because he was homesick. That evidence suggests, and I find, that [Child 1] required ongoing care while he was in [City 1], and Ms Sadhvani provided that care. [Child 1] remained in Ms Sadhvani’s full‑time care until he commenced his apprenticeship on 26 March 2018. The apprenticeship provided him with greater financial independence, and it appears that it also had a broader beneficial effect. As Ms Sadhvani noted, “once he got full-time work he was pretty much ok.” For those reasons, I find that [Child 1] was in Ms Sadhvani’s full-time care until 26 March 2018, and he was not in her care from 26 March 2018.  

8. Section 12 of the Act deals with the occurrence of child support terminating events. It relevantly states:

   (1)A child support terminating event happens in relation to a child if:

   …

   (c)the child turns 18; or

   …

   (2AA)A child support terminating event happens in relation to a child if:

   (a)both of the parents of the child are not eligible carers of the child; and

   (b)there are no non-parent carers entitled to be paid child support in relation to the child; and 

   (c)if paragraphs (a) and (b) are met because: 

   (i)all persons who were eligible carers of the child ceased to be eligible carers of the child; and 

(ii)a parent who was not an eligible carer of the child would have become an eligible carer of the child but for subparagraph 54F(3)(b)(i); 

the Registrar or Secretary is notified, or otherwise becomes aware, of the matter in subparagraph (c)(ii) more than 26 weeks after the relevant change of care day.

1. A parent is not an eligible carer if they provide less than 35% care: sections 5 and 7B of the Act. From 26 March 2018, neither parent was an eligible carer. Paragraph 12(2AA)(a) was satisfied.

2. There is no suggestion that a non-parent carer was entitled to child support in respect of [Child 1]. Paragraph 12(2AA)(b) was satisfied.

3. In respect of paragraph 12(2AA)(c), it is convenient to focus on subparagraph (ii). That provision deals with circumstances were a parent starts providing care but, because the CSA is not promptly notified of the change in care, the parent is not recorded as providing care from the date on which the change in care occurred. Paragraph 12(2AA)(c) does not apply in his case.

4. In summary, as at 26 March 2018, paragraphs 12(2AA)(a) and (b) of the Act were satisfied, and paragraph 12(2AA)(c) did not apply. A terminating event occurred in relation to [Child 1] on 26 March 2018, and the child support case will be terminated from that date: section 74 of the Act.

DECISION

The decision under review is varied so that the child support case is terminated with effect from 26 March 2018.