Shelley and Long (Child support)

[2018] AATA 3795

Shelley and Long (Child support) [2018] AATA 3795 (6 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC014219

APPLICANT:  Ms Shelley

OTHER PARTIES:  Child Support Registrar

Mr Long

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  6 August 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in care on 25 December 2017.

CATCHWORDS
Child support - Percentage of care - Whether both parents ceased to be eligible carers - No change to the likely pattern of existing 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. This review is about a change to the percentage of care determination for Ms Shelley in respect of the child [Child 1].

2. Ms Shelley and Mr Long are the parents of [Child 1] (born September 2001) and the child support assessment commenced on 5 July 2007. 

3. From 24 August 2015 the child support assessment reflected Ms Shelley as having 100 per cent care of [Child 1] with Mr Long being the liable parent under the assessment.

4. On 21 February 2018 Mr Long notified the Department of Human Services, Child Support (the Child Support Agency) that from 25 December 2017 there had been a change of care for [Child 1] with neither parent having care as she was living away from home.

5. On 16 March 2018 the Child Support Agency made the decision to refuse to accept that Ms Shelley and Mr Long had 0 per cent care of [Child 1].

6. On 5 April 2018 Mr Long objected to this decision and on 29 May 2018 the Child Support Agency allowed the objection.  The Child Support Agency made the decision that Ms Shelley and Mr Long had 0 per cent care of [Child 1] from 25 December 2017 with effect from 21 February 2018 (the objection decision).

7. On 30 May 2018 Ms Shelley applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 24 July 2018.  Ms Shelley and Mr Long gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (73 pages).  Ms Shelley provided additional documents before the hearing and these were distributed to the parties (A1-A19).  Prior to the hearing the Tribunal contacted Ms Shelley and requested a clearer copy of the evidence she had provided.  As this second copy differed slightly to the original evidence provided by Ms Shelley these were separately numbered (A20-A35).

9. At hearing Mr Long said he had not received the documents provided by the Child Support Agency or by Ms Shelley.  The Tribunal notes Mr Long was sent an additional copy of the papers by the Child Support Agency on 17 July 2018.  The Tribunal agreed to send Mr Long an additional copy of the documents provided by Ms Shelley and allow him until the close of business on 6 August 2018 to provide any relevant comments.  These comments were received from Mr Long on 31 July 2018 (B1-B4).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The Child Support Agency 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, the Child Support Agency 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, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of 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 existing percentages of care to be revoked and new care determinations to be made; and

   ·       if so, from what date should the new percentage of care determination take effect?

CONSIDERATION

1. Ms Shelley told the Tribunal that around February this year [Child 1] had decided to leave their home in [Town 1] to live with her boyfriend in [Town 2].  She said [Child 1] and her boyfriend had been living together with her in [another town] where they were housesitting until November 2017 when they moved to [Town 1].  When [Child 1’s] boyfriend moved back to [Town 2], where they were all from originally, [Child 1] started to spend more time with him.

2. Ms Shelley said although [Child 1] had moved to [Town 2] around February she would often return to [Town 1] if she was having relationship or other issues.  She said [Child 1] regularly spent time at her grandmother’s home in [Town 2] as well and using this as her base.

3. Ms Shelley said [Child 1] was a typical teenage girl.  As [Child 1] was no longer at school she moved about a great deal.  When things did not work out with her boyfriend Ms Shelley said she would drive to [Town 2] and pick her up or meet [Child 1] half way between [Town 2] and [Town 1] and then take her home.  Ms Shelley said even when [Child 1] was living with her boyfriend she was still supporting her financially and emotionally.  She said they would talk and text every day.  Ms Shelley said she regularly gave [Child 1] money to help with living costs and purchased clothes and other essential items for her.  She also gave her mother, [Child 1’s] grandmother, money to cover the cost of items she had purchased for [Child 1].  Ms Shelley told the Tribunal she still paid for [Child 1’s] healthcare as she suffered from [a condition] and required regular medication.

4. Ms Shelley told the Tribunal she had been in [Town 2] off and on through March and April and had returned permanently to [Town 2] in May this year.  She and [Child 1] were now living with her mother in [Town 2] while looking for their own rental accommodation.

5. The Tribunal notes in evidence provided by Ms Shelley a letter from her mother, [named], dated 6 July 2018.  The letter states:

   I wish to inform you that around February 2018 [Child 1] decided that she would like to reside in [Town 2] as that is where her family & friends are including her boyfriend.  [Ms Shelley] was not happy with her decision because of her age.  Since February [Child 1] has had a room here at the family home at [Town 2 address].  Her mailing address is the same for medicare and learners permit and other things.  [Child 1] was with her boyfriend a lot of the time, sleeping at the [property] where his parents are.  Even when she is not staying here overnight, I usually see her if not every day, every second day.  [Child 1] brings in her laundry, she showers here and is taken up town to shop for what is required, clothes, phone credit (so we can contact her) chocolate, hair colour and other personal items.  We always know where [Child 1] is and [Ms Shelley] and I ensure we always have a way of contacting her, even giving her my mobile phone when her phone was having issues.  I quite often collect [Child 1] from the [property] or drive her back out which is a [distance] round trip, doing this at least 4 times a week.  This equates to approx [distance] every 2 - 3 months.  I have on occasions prior to May 2018 taken her to [a location] at night so [Ms Shelley] could pick her up and take her back to [Town 1].  [Ms Shelley] has been living here in [Town 2] ([same address]) since May, 2018.  [Ms Shelley] has been financially providing for [Child 1] by putting some money in her account, buying her things or giving me cash back for items I have purchased.

6. The Tribunal also notes in evidence provided by Ms Shelley an internet banking transaction history for the period 1 December 2017 to 22 July 2018 showing transfers from her bank account to [Child 1’s] bank account.  Although there are no names identifying the two separate accounts there are 32 transactions during this period totalling $1,025.  Each debit from the first account is titled “[Child 1’s name]” or “Internet Transfer Mum Mum” and matches a corresponding credit in the second account titled “[Ms Shelley’s name]” or “Internet Transfer Mum Mum”. 

7. In addition, Ms Shelley has provided a transaction history and bank statements for the same account for the period from 1 December 2017 to 1 July 2018.  These show transactions in [Town 2] for groceries, takeaway food, clothing, pharmacy items and the [relevant agency] which Ms Shelley has annotated as “learners permit fees”.

8. Mr Long told the Tribunal he found out in December 2017 that [Child 1] had moved away from her mother’s home to be with her boyfriend.  He said he understood [Child 1] had moved in September 2017.  He said he was told by his [Relative A, named], who was a close friend of Ms Shelley’s.  Mr Long said he did not believe [Child 1] received much from her mother in the way of financial support and had seen no evidence from Ms Shelley that she was helping [Child 1].

9. Mr Long said his mother had also tried to get in touch with [Child 1] earlier in the year but had been unable to do so.  His mother had sent him an email saying that Ms Shelley had told [Relative A] that she would ask [Child 1] to get in touch when she was back in [Town 1].

10. The Tribunal notes in evidence from the Child Support Agency an email to Mr Long from his mother dated 7 April 2018.  The email states, “I want to meet up with [Child 1] as I haven’t seen her for about 7 years.  I’ve emailed her but no reply.  I got [Relative A] to ring [Child 1’s] mum Ms Shelley, Ms Shelley told [Relative A] when [Child 1] comes up to [Town 1] she will ring her ([Relative A]) for me to meet [Child 1].”

11. In response to the evidence provided by Ms Shelley, sent by the Tribunal to Mr Long on 25 July 2018, Mr Long said he felt at a disadvantage because he had not received the paperwork until after the hearing.  The Tribunal acknowledges Mr Long did not receive the new evidence provided by Ms Shelley until after the hearing, but is satisfied he has since been given a reasonable opportunity to comment on this material.

12. Mr Long said in his written submission that [Child 1] reached out to him and he saw this as an opportunity to help out.  He said he based his understanding of [Child 1’s] living arrangements on the conversations he had with her.  Mr Long states, “In the last couple of months I was hopeful that my relationship with [Child 1] would mend as I’ve had a lot of contact even though it was about money it was still contact.”

13. Mr Long also expressed concern that the child support he was providing to Ms Shelley was not appearing in [Child 1’s] bank account or may not be used to support [Child 1].  He said the money could be used for anything, including Ms Shelley’s “life style choices”.  He also provided text messages from [Child 1] showing her requests to him for money.

14. In circumstances where one parent disputes that the other parent is providing care for a child, usually an older teenage child, as a first step the Tribunal may need to consider whether or not a particular parent is actually providing care. 

15. Ms Shelley agrees with Mr Long that [Child 1] moved to [Town 2] although she states it was in February 2018.  Mr Long states it was in December 2017 and perhaps in September 2017.  Ms Shelley has provided evidence showing that while [Child 1] was not living with her on a full-time basis, she continued to support her daughter during the period in question.  Mr Shelley disputes this.

16. On balance, given the evidence provided, the Tribunal is satisfied that Ms Shelley was providing care for [Child 1] even though [Child 1] was not living with her for a period of time.  Ms Shelley continued to provide financial and emotional support as well as making arrangements for her mother, [named], to assist in supporting [Child 1].

17. The Tribunal is not satisfied there has been a change to the pattern of care for [Child 1] as advised by Mr Long.  Therefore there is no reason for the existing percentage of care determinations to be revoked.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in care on 25 December 2017.