Sutton and Hoddle (Child support)

[2023] AATA 839

Sutton and Hoddle (Child support) [2023] AATA 839 (9 February 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024862

APPLICANT:  Ms Sutton

OTHER PARTIES:  Child Support Registrar

Mr Hoddle

TRIBUNAL:Member J Prentice

DECISION DATE:  09 February 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations 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

1. As relevant to this application, Ms Sutton and Mr Hoddle are parties to a child support case registered with the Child Support Agency (the CSA) from 11 January 2008 in relation to financial support to be provided for [Child 1] (born November 2005). The application concerns a single decision of the CSA about the recorded care for [Child 1] utilised in calculation of the child support liability.

2. From 13 December 2019 the pre-existing percentages of care applying in the child support case for [Child 1] were 100% to Ms Sutton and 0% to Mr Hoddle.

3. On 19 May 2022, Mr Hoddle contacted the CSA and initially advised a change to the care position of [Child 1] from 24 March 2022 which was subsequently amended to 29 March 2022 stating that he has been providing emotional and financial support for [Child 1] since she returned to Australia, with Ms Sutton still residing overseas. Mr Hoddle provided text message evidence to the CSA between himself and Ms Sutton where she stated that [Child 1] is his responsibility.

4. On 14 July 2022 the CSA decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 0% to Ms Sutton and 100% to Mr Hoddle from 29 March 2022 (effective from 19 May 2022).

5. Notably, as Mr Hoddle notified the change of care on 19 May 2022, more than 28 days after the change of care was found to have occurred on 29 March 2022, the recorded increased percentage of care from 0% to 100% to Mr Hoddle applied from 19 May 2022 (the date of notification). However, the decreased percentage of care from 100% to 0% applied from 29 March 2022 (the date of the care change).

6. On 12 August 2022, Ms Sutton objected to this decision and, on 5 October 2022 a CSA objections officer disallowed the objection. 

7. On 18 October 2022 Ms Sutton lodged an application with the Tribunal seeking an independent review of the CSA’s decision stating that:

   [Child 1] is living independently and has been asking that you acknowledge that so she can claim centrelink as [Mr Hoddle] only on a rare desperate occasion when she begs will send her money.  I am also sending her money and as you see I am her mother and have raised her solo for 16 years as shown from attached documents.  [Mr Hoddle] wants to cause me financial pain which is domestic abuse which he has used for over 20 years to try and control me and the children ,….  She is LIVING INDEPENDENTLY of us and due to not being able to gain centrelink and him not sending her enough money she is now doing year 12 plus trying to work 20 hours a week which is going to drastically impede her ability to study.  This decision is 100% incorrect, please contact [Child 1] to confirm this.

1. The hearing of the application was held on 9 February 2023.  Ms Sutton and Mr Hoddle both participated in the hearing by conference telephone and gave evidence on affirmation.  The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Ms Sutton and Mr Hoddle and the documentary material provided by the CSA to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 152) and documents provided by Ms Sutton prior to hearing (marked Exhibit A, pages A1 to A3) which have also been taken into account. Copies of all documents were exchanged with each party.

3. There are a number of background circumstances of understandable importance to both Ms Sutton and Mr Hoddle which were raised in evidence which are not relevant to the issues before the Tribunal. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

RELEVANT LEGISLATION

1. The statutory provisions relevant to this review are contained in the Child Support Assessment Act 1989 (the Act) and the Child Support (Registration and Collection) Act1988 (the Registration Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains government guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

3. Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

4. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless the CSA is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

5. The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

1. Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or section 50 of the Act.

2. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.

3. The term care is not defined in the child support legislation. The decision of Federal Magistrate Hughes (as she then was) in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 provides guidance, which has been adopted in the Guide at Topic 2.1.1 as follows:

   In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   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?

4. The Tribunal considered the criteria adopted in the Guide at Topic 2.1.1 and is satisfied that although [Child 1] had a part-time job, she was still at school and relied on Mr Hoddle for financial support.  Mr Hoddle paid for [Child 1]’s rent, education and other cost of living expenditure.

5. The Child Support Guide, which provides policy guidance to the CSA in interpreting its obligations under the Act and the Registration Act, gives the following commentary on 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. The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

ISSUES

1. It follows that the issues to be determined by the Tribunal are as follows:

(a)Are the pre-existing percentage of care determinations for Ms Sutton and Mr Hoddle to be revoked? And, if so,

(b)What are the new percentage of care determinations for Ms Sutton and Mr Hoddle? And,

(c)What is the date of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

CONSIDERATION

1. Exhibit 1 records the following relevant conversations between Ms Sutton and the CSA and Mr Hoddle and the CSA:

(a)On 9 June 2022 – Mr Hoddle advised the CSA that the child had been with the mother overseas without his consent or knowledge.  However, he sent money so the child could return to Australia and he has been financially supporting her since her return.

(b)On 28 June 2022 the CSA discussed with Mr Hoddle that he was behind in his child support payments.  Mr Hoddle pointed out that this was only since [Child 1] had returned to Australia and he has been supporting her financially and sending money to her direct as Ms Sutton is still overseas.

(c)The CSA records of 28 June 2022 indicate that Ms Sutton advised them that from 1 April 2022 “[Child 1] has moved out of home and neither myself or (Mr Hoddle) are supporting her financially.  She is going to apply for Centrelink”; and advised that the care should be recorded as 0% to both parties.

(d)On 3 August 2022 Ms Sutton sent a message to the CSA stating that “She ([Child 1]) is applying for Centrelink and being denied due to his (Mr Hoddle’s) lies”.

(e)On 12 August 2022 in lodging an objection to the CSA decision of 14 July 2022, Ms

Sutton stated:

·[Child 1] is living independently and is not in the care of either Mr Hoddle or herself;

·[Child 1] is trying to get Centrelink benefits but cannot because Mr Hoddle is claiming care; however, Mr Hoddle has had no contact with [Child 1];

·She (Ms Sutton) is paying [Child 1]’s school fees;

·Mr Hoddle does not support [Child 1] financially.

(f)Ms Sutton told the CSA that she believes neither parent is providing care for [Child 1] and as such the care should be recorded as 0% to both parents, as Mr Hoddle lives in Western Australia and [Child 1] lives in Sydney.

1. Relevant documentation and evidence provided to the CSA included as follows:

(a)Ms Sutton provided a copy of the Statement of Fees for [Child 1]’s enrolment in Grade 11 for 2022.  (The Tribunal notes that this was not a receipt).

(b)Mr Hoddle provided a third-party statement from [Mr A] (his adult son) which stated that Mr Hoddle assists [Child 1] financially and emotionally and has been doing so since March 2022 when she returned to Australia.  He stated that the financial support includes funds for rent and living expenses on a monthly basis; and that Mr Hoddle provides [Child 1] with advice with regard to her schooling and financial decisions.

(c)Ms Sutton provided a copy of an airline ticket showing [Child 1] returned to Australia (Sydney) on 29 March 2022.  It was noted during the hearing that Mr Hoddle had sent the money to Ms Sutton to pay for [Child 1]’s ticket.

(d)Mr Hoddle provided copies of text message evidence between him and Ms Sutton where Ms Sutton states that [Child 1] is his responsibility.

(e)Mr Hoddle provided a copy of the text message from Ms Sutton asking him to pay [Child 1]’s school fees; and a copy of the receipt from the College. (On 31 August 2022 Ms Sutton confirmed that she was unable to pay the school fees as she didn’t have any income).

(f)Mr Hoddle provided evidence of payments to [Child 1], including:

19 May 2022              $900

7 June 2022              $200

28 June 2022             $800

13 August 2022          $500

22 August 2022          $820   

1. Additional documentation provided to the Tribunal included a receipt from [Child 1]’s school to Ms Sutton for the payment of $480.00 in November 2022.  

2. There is no dispute between the parties that [Child 1] is living independently in Sydney.  They both acknowledge that as a 17-year-old girl they both support her right to choose where she lives.

3. At the hearing, Ms Sutton informed the Tribunal that she had finally put enough money together and returned to Australia in December 2022 and is living in Sydney.

4. Ms Sutton said that when [Child 1] returned to Australia they were in daily contact and Ms Sutton continued to provide financial and emotional support.  Ms Sutton conceded that her finances were such that Mr Hoddle provided the majority of financial support to [Child 1].

5. The Tribunal notes that Ms Sutton informed the CSA that she believed neither parent was providing care for [Child 1] and as such the care should be recorded as 0% to both parents.

6. As discussed with Ms Sutton at the hearing, even if both parents are assessed at 0% care, it does not necessarily follow that [Child 1] would qualify for youth allowance at the independent rate. 

1. Having had regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from 29 March 2022.  At that time Ms Sutton informed the CSA that she did not provide any care for [Child 1] and it is understandable that the CSA determined that the pattern of care of [Child 1] from 29 March 2022 was 0% to Ms Sutton and 100% care to Mr Hoddle. The Tribunal finds that the date of the change in care was 29 March 2022.

2. The Tribunal explained to both parties that in reviewing the CSA decision, the relevant legislation requires the Tribunal to put itself back in the place of the CSA as at 19 May 2022 (when they were advised of the change in care) and work out what the expected pattern of care going forward was likely to be.  The Tribunal’s role is to make that assessment as at 19 May 2022 and is not to take into account subsequent changes that were not in contemplation at that time.  What was reasonably in contemplation as at 19 May 2022 may be quite different to what has subsequently occurred.

3. As at 19 May 2022 [Child 1] had returned to Sydney two months earlier and Ms Sutton remained overseas and had advised the CSA that she had 0% care of [Child 1].  The Tribunal finds that although [Child 1] was living independently in Sydney, this was enabled by Mr Hoddle on whom [Child 1] relied for financial support.  As referenced in paragraph 18 of these Reasons the Tribunal considered the criteria adopted in the Guide at Topic 2.1.1 and is satisfied that although [Child 1] had a part-time job, she was still at school and relied on Mr Hoddle for financial support.  Mr Hoddle paid for [Child 1]’s rent, education and other cost of living expenditure.  Having regard to the evidence the Tribunal also considers that Mr Hoddle was providing emotional support to [Child 1]. It is clear that Mr Hoddle was [Child 1]’s primary carer and the Tribunal is satisfied that the pattern of care of [Child 1] from 29 March 2022 was 0% to Ms Sutton and 100% to Mr Hoddle.

Issue 1 – Are the pre-existing percentage of care determinations for Ms Sutton and Mr Hoddle to be revoked?

1. Section 54G provides that if a person was to have at least regular care (that is at least 14%) of a child during a care period under a recorded percentage of care determination and the other parent was to have more than 0% care, the child was being made available for care by the other person, the other person has notified the change of care within a period that is reasonable in the circumstances and the first person has no care or a pattern of care less than regular care, both recorded percentage of care determinations must be revoked. Mr Hoddle was not to have more than 0% care pursuant to the pre-existing recorded percentages of care. Section 54G therefore does not apply.

2. Subsection 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, section 54G does not apply and section 51 does not apply or no longer applies.

3. Section 55C contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. As already canvassed by the Tribunal, section 54G does not apply.

2. Care of 0% to Ms Sutton and 100% to Mr Hoddle does not correspond with the pre-existing percentage of care determinations recorded by the CSA as at 13 December 2019 of 100% care to Ms Sutton and 0% to Mr Hoddle.

3. A change in care percentages to 0% to Ms Sutton and 100% to Mr Hoddle would change each parent’s cost percentage pursuant to the table in section 55C.

4. Section 51 does not apply.

5. The existing percentages of care of 100% to Ms Sutton and 0% to Mr Hoddle are therefore required to be revoked pursuant to section 54F.

Issue 2 – What are the new percentage of care determinations for Ms Sutton and Mr Hoddle?

1. Percentage of care determinations are required pursuant to subsections 49(2) and 50(2). The Tribunal has determined that Ms Sutton’s percentage of care for [Child 1] from 29 March 2022 is 0% and Mr Hoddle’s percentage of care is 100% as outlined in the above consideration.

Issue 3 – What is the date of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

1. Pursuant to paragraph 54F(3)(b) as the change in care was notified by Mr Hoddle on 19 May 2022, more than 28 days after the Tribunal has found the change occurred on 29 March 2022, there are different dates of effect for the revocation of the parents’ respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care of 100% recorded for Ms Sutton takes effect the day before the change of care day, that is on 28 March 2022 and revocation of the pre-existing percentage of care of 0% recorded for Mr Hoddle takes effect the day before the change of care was notified, that is on 18 May 2022.

2. It is then necessary to determine from when new percentage of care determinations are to apply.

3. As a general rule, a parent’s recorded care will reflect their actual care. However, there are exceptions to that general rule.

4. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 100% to Mr Hoddle applies from 19 May 2022 and a new percentage of care determination of 0% for Ms Sutton applies from 29 March 2022.

Conclusion

1. As this is the same decision as that of the objections officer, the decision under review will be affirmed.

OTHER MATTERS

1. As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, and the CSA then is tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision.

DECISION

The decision under review is affirmed.