Scholes and Gladys (Child support)

[2020] AATA 1022

Scholes and Gladys (Child support) [2020] AATA 1022 (3 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/HC018090

APPLICANT:  Mr Scholes

OTHER PARTIES:  Child Support Registrar

Ms Gladys

TRIBUNAL:Member C Breheny

DECISION DATE:  03 March 2020

DECISION:

The decision under review is set aside and a decision substituted that no care change occurred on or about 25 March 2019 and Mr Scholes continues to have 100% care of [Child 1].

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the likely pattern of care –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. Ms Gladys and Mr Scholes are the separated parents of [Child 1], born June 2002. A child support case has been registered with the Department of Human Services – Child Support (the Department) since 7 May 2018, and child support has been payable on the basis that Mr Scholes had 100% care and Ms Gladys had 0% care of [Child 1]. Ms Gladys is liable to pay child support to Mr Scholes.

2. On 10 April 2019 Ms Gladys contacted the Department and advised that [Child 1] had left Mr Scholes’s care. [Child 1] had been living with his grandparents since 25 March 2019. Mr Scholes agreed that [Child 1] was living with his grandparents, but disputed the care change, as he was still supporting [Child 1]. On 26 June 2019 a decision was made to reject the care change.

3. On 15 July 2019, Ms Gladys objected to the decision, stating that [Child 1] was living at his grandparents’ house, not with Mr Scholes and, as neither parent had care, the child support case should be terminated. On 29 November 2019, an objections officer of the Department decided to allow the objection and found that neither parent had care of [Child 1] from 25 March 2019.

4. On 20 December 2019, Mr Scholes applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 3 March 2020. Mr Scholes attended the hearing by conference telephone and gave evidence on affirmation. Ms Gladys elected not to participate in the hearing. A representative of the Child Support Registrar did not attend the hearing. I had before me the Statement and Documents provided by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 23 December 2019 (documents numbered 1–145). I also considered additional information provided by Mr Scholes (marked A1–A4).

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act provide that a care determination must be made following an application for a child support assessment and requires consideration of the actual, or likely, pattern of care that the parents will have in relation to the children in a particular care period.

3. In this case, departmental records indicate that since 7 May 2018, child support liability had been calculated on the basis that Ms Gladys had 0% care and Mr Scholes had 100% care of [Child 1] (folio 143). Records also show that Ms Gladys contacted the Department on 10 April 2019 to advise that [Child 1] had not been in Mr Scholes’s care since 25 March 2019 (folio 14).

4. The issue for me to determine is whether a care change occurred on or about 25 March 2019, as notified by Ms Gladys on 10 May 2019.

Mr Scholes’s evidence

1. Mr Scholes agreed that [Child 1] had been living with his grandparents for some time. [Child 1] was going through a difficult time. He initially stayed with his girlfriend, but then that relationship ended and [Child 1] went to live with his maternal grandparents. This was only going to be a temporary arrangement and [Child 1] is currently living at a friend’s place.

2. Mr Scholes submitted that even though [Child 1] was not physically staying at his home, he was still supporting him, both financially and emotionally. Mr Scholes provided a list of payments he had made since April 2019, both to [Child 1] directly and to the grandparents, to meet [Child 1]’s expenses (folio A3). Mr Scholes indicated that he also paid [Child 1]’s medical costs, including appointments with a psychologist, clothing, shoes and gym membership fees.

3. Mr Scholes provided letters from [Child 1]’s school (folio 36), psychologist (folio 41) and personal trainer (folio 84) to demonstrate that he continued to be involved in all major aspects of [Child 1]’s life.

4. Mr Scholes contended that he had paid significantly more to support [Child 1] than $150 per month, as stated in the objection decision. He noted that he paid [Child 1]’s grandparents $150 per month and they had told him that this amount was sufficient to cover [Child 1]’s expenses.

5. Mr Scholes suggested that Ms Gladys’s evidence (a letter from [Child 1]’s grandparents) should not be relied upon, as he believed that the grandparents had been pressured by Ms Gladys into supporting her views.

6. Mr Scholes agreed that [Child 1] did have a job and partially supported himself. [Child 1] also makes a number of decisions quite independently; for example, where he wishes to stay. He also agreed that [Child 1]’s grandparents did provide care and support for their grandson to some extent, but he (Mr Scholes) still provided the majority of care (emotional and financial support) for [Child 1] and he continues to do so. Mr Scholes noted that [Child 1] is currently considering returning to Mr Scholes’s home in the near future.

Ms Gladys’s evidence

1. Ms Gladys did not participate in this review. Records show that she notified the Department on 10 May 2019 that [Child 1] was living with his (maternal) grandmother (folio 15). She indicated in a later conversation that “she just wanted to ensure grandmother is not paying and [Mr Scholes] is not taking advantage as grandmother is not wealthy” (folio 17).

2. Ms Gladys noted in her objection to the initial care decision (folio 58) that [Child 1] has been living with his grandparents since 25 March 2019 and submitted that:

   The child support assessment needs to be revised or terminated. [Mr Scholes] is not entitled to the child support money he is receiving because it is not going to [Child 1]. [Grandparents] should be getting financial support not [Mr Scholes].

3. In a further letter (folio 70), Ms Gladys stated that she did not deny that Mr Scholes paid for “some” bills, but submitted that he was not “providing enough financial support to cover [Child 1]’s living expenses… He should be giving [the grandparents] a lot more money to support [Child 1].” Ms Gladys stated that [Child 1] was living with his grandparents and does not see his father and Mr Scholes therefore does not have 100% care of [Child 1].

4. Ms Gladys provided text messages from Mr Scholes to [Child 1] dated 21 March 2019 (folios 74/75) stating that he (Mr Scholes) would deduct money from the amount that had been saved for [Child 1]’s car, because Mr Scholes had paid for schoolbooks and [Child 1] was no longer at school. I note the messages predate the actual care change.

5. Ms Gladys also provided a letter dated 21 August 2019, signed by [Child 1]’s grandparents (folios 100/101) in which they detail their support for [Child 1] and note that they receive “minimal financial support from [Mr Scholes]”.

Other evidence

1. The objections officer spoke with [Child 1]’s grandfather on 26 November 2019 (folio 125). The grandfather noted that [Child 1] or the grandparents have generally made the “big” decisions in [Child 1]’s life recently and that [Child 1] will not contact either his father or mother “at the moment”.

2. The grandparents have been paying for some things (e.g. medication) more recently but [Child 1] also meets some expenses (clothes and “Uber eats”) with his pay. [Child 1] is happy staying with grandparents, but also stays at a friend’s house.

3. [Child 1]’s grandfather confirmed that Mr Scholes pays $150 per month for [Child 1]’s living expenses. He also confirmed that Ms Gladys had written the latter dated 21 August 2019 and that they [the grandparents] had misread some of what Ms Gladys had put in it.

4. In September 2019 Mr Scholes provided copies of text messages from [Child 1]’s friend’s mother stating that [Child 1] stays at their place about three times per week (folio 113).

5. He also provided a text message from [Child 1]’s grandfather dated 8 December 2019 (folio A4). The message was sent in response to Mr Scholes’s advice that he had transferred further money into the grandparents’ account. It reads:

   Okay but not sure that we need it as [Child 1] does not seem to want to come home here spends all his time at [a friend]’s and hasn’t gone to work his last two shifts we are at a loss as to what to do he does not respond to texts or calls.

6. Mr Scholes advised the grandparents later that day that [Child 1] was “OK” (folio A4).

7. Mr Scholes provided a summary of the payments he had made for [Child 1] since March 2019 (folio A3). They include payments directly to [Child 1], the grandparents, psychologist, medical bills, private health insurance and gym membership. Mr Scholes noted the gym membership was not a birthday present, as stated by Ms Gladys, but something that he and [Child 1] had discussed previously and that he agreed to pay for in the first year. The summary shows that Mr Scholes paid on average about $488 per month to support [Child 1].

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. In this case Ms Gladys notified the Department on 10 May 2019 that [Child 1] had not been living with his father since 25 March 2019. The most appropriate care period would therefore be the 12-month period from 25 March 2019 to 24 March 2020.

3. Mr Scholes provided significant evidence to support his view that he continued to have 100% care of [Child 1] even after [Child 1] left his home. Financial information indicates that on average Mr Scholes’s financial support for [Child 1] was about $488 per month between April 2019 and November 2019.

4. I note Ms Gladys was required to pay child support to Mr Scholes of about $318 per month up until 24 March 2019 (folio 10). It appears then that Mr Scholes spent more than these child support payments on [Child 1]’s care.

5. Mr Scholes further noted that [Child 1] is considering returning to Mr Scholes’s home in the near future and it appears that [Child 1] has been spending less and less time at his grandparents’ home from about September 2019 onwards. Certainly by December 2019 his grandfather states that he does not want to live with them any longer.

6. I accept that both Ms Gladys and Mr Scholes care for [Child 1] and have his best interest in mind; my role though in this review is to determine whether a care change occurred on or about 25 March 2019, such that Mr Scholes no longer had 100% care of [Child 1] from that date.

7. I have considered the Department’s policy in regard of care for older children living away from home, as set out in chapter 2.2.1. It relevantly states:

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.

1. There is no dispute and I accept that [Child 1] left Mr Scholes’s home on 25 March 2019 to live with his grandparents, but I am persuaded that Mr Scholes continued to provide substantial financial and emotional support for [Child 1]. Mr Scholes provided detailed evidence of his ongoing involvement and support for [Child 1] after April 2019. Whilst [Child 1] was not physically present at Mr Scholes’s home, Mr Scholes continued to pay for [Child 1]’s expenses. There is no actual evidence before me to suggest that this support was not enough.

2. On the basis of the evidence before me, I have thus concluded that Mr Scholes continued to provide care for [Child 1] and that no care change occurred on 25 March 2019.

3. This is a different conclusion to that reached by the objections officer and I therefore set aside the decision under review and substitute my decision that no care change occurred on 25 March 2019 and Mr Scholes continues to have 100% care of [Child 1].

DECISION

The decision under review is set aside and a decision substituted that no care change occurred on or about 25 March 2019 and Mr Scholes continues to have 100% care of [Child 1].