Tibbets and Cracroft (Child support)
[2024] AATA 4125
•4 October 2024
Tibbets and Cracroft (Child support) [2024] AATA 4125 (4 October 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2024/MC028108
APPLICANT: Mr Tibbets
OTHER PARTIES: Child Support Registrar
Ms Cracroft
TRIBUNAL:Member K Hamilton
DECISION DATE: 04 October 2024
DECISION:
The decision under review is affirmed.
CATCHWORDS
CHILD SUPPORT – PERCENTAGE OF CARE – 17-year old living at home of friends and working – father’s occasional financial and emotional support – mother’s limited contact – decision under review affirmed
REASONS FOR DECISION
BACKGROUND
Mr Tibbets and Ms Cracroft are the parents of [the child], who turned 18 on 23 April 2024. Prior to 15 January 2024, Ms Cracroft was recorded for child support purposes as having 100% care and Mr Tibbets 0% care of [the child].
On 15 January 2024, Ms Cracroft advised Services Australia – Child Support (Child Support) that [the child] was no longer living with her and that she had 0% care of [the child].
On 20 January 2024, Child Support made a decision to reflect the care of [the child] as 100% to Mr Tibbets and 0% to Ms Cracroft from 15 January 2024.
Ms Cracroft objected to that decision on 12 February 2024. On 26 May 2024, a Child Support objections officer allowed her objection and made a decision to reflect the care of [the child] as 0% to Ms Cracroft and 0% to Mr Tibbets from 15 January 2024.
Mr Tibbets then applied to the Administrative Appeals Tribunal (the Tribunal) on 21 June 2024 for further review.
I heard the matter on 4 October 2024. Mr Tibbets and Ms Cracroft both participated in the hearing by telephone and gave evidence under affirmation.
The Tribunal had regard to the following documents:
·Relevant documents provided by Child Support pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975, numbered 1–84;
·Documents submitted by Mr Tibbets, numbered by the Tribunal as pages A1–A2;
·Documents submitted by Ms Cracroft, numbered by the Tribunal as pages B1–B5.
ISSUES
The legislative provisions relevant to this application are contained in the Child Support (Assessment) Act 1989 (the Act).
If a person applies for an administrative assessment of child support and has had, or is likely to have, a pattern of care for the child during the relevant care period, then the decision-maker must determine that parent’s percentage of care for the child during the care period: section 50 of the Act.
If a responsible person who was to have at least regular care of a child during a care period (at least 14% care) under a care determination made under section 50 had no care of the child, or a pattern of care that was less than regular care of the child, the care determination must be revoked and a new determination made: section 54G in Division 4, Subdivision C of the Act. This section can only apply, however, where the other parent’s care percentage has been determined under section 50 of the Act.
A responsible person’s existing percentage of care must also be revoked if the actual care of the child does not correspond with the existing percentage of care and, if a new percentage of care were determined, the responsible person’s cost percentage would change, and where section 54G does not apply: section 54F in Division 4, Subdivision C of the Act.
The legislation requires that if a determination of a responsible person’s percentage of care is revoked under Division 4, Subdivision C, and the responsible person for the child has had, or is likely to have, no pattern of care for the child during a care period, their percentage of care must be determined to be 0%: section 49 of the Act.
If both the parents of the child cease to be eligible carers of the child, and there are no non‑parent carers entitled to be paid child support in relation to the child, this is a child support terminating event: subsection 12(2AA) of the Act.[1]
[1] An eligible carer is “a person who has at least shared care of the child” (section 7B of the Act), with shared care being defined as having between 35% and 65% care of the child (subsection 5(3) of the Act).
The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide reflects government 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 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.
The issues which arise in this case are:
· Was there a change in [the child]’s pattern of care from 15 January 2024? If so,
· What is the new percentage of care determination for the parties?
CONSIDERATION
At hearing, both parties agreed that [the child] has not lived with either parent since 15 January 2024. [The child] left Ms Cracroft’s home on this date and began residing in the home of one of his friends.
Mr Tibbets’evidence
Mr Tibbets told the Tribunal that [the child] was “evicted” by Ms Cracroft on 15 January 2024 following a disagreement.
At the time [the child] left Ms Cracroft’s home, he had recently commenced an apprenticeship. Mr Tibbets spoke to [the child] about coming to live with him in Victoria, but [the child] did not want to do that as he would have to restart his apprenticeship.
[The child] instead went to stay in the home of one of his friends. Mr Tibbets spoke to the friend’s father ([Mr A]) who confirmed that he was happy for [the child] to stay with his family. Mr Tibbets told [Mr A] that if there were any problems or if [the child] needed anything, [Mr A] should contact him.
Mr Tibbets said that [the child] earned approximately $500 per week from his apprenticeship. [The child] pays board of $140 per week to [Mr A], which includes utilities and food. [The child] helps out with chores around the home including cooking and cleaning. [The child]’s employer has provided him with a car and [the child] is supposed to have repayments for the vehicle deducted from his wage.
Mr Tibbets says he keeps in touch with [Mr A] to see how [the child] is doing and to make sure [the child] is up to date in paying his board. [Mr A] confirmed to him that [the child] was no trouble and was keeping up with his payments. Mr Tibbets said he was speaking with [the child] at least once a week to check in on him.
Mr Tibbets says that he sends [the child] money to help him out. Mr Tibbets provided evidence to the Tribunal showing that he transferred to [the child] $400 in January 2024, and $200 in each of February, March and May 2024. Mr Tibbets said that the $200 payment made on 2 May 2024 was a payment in relation to April 2024.
In response to questions from the Tribunal, Mr Tibbets confirmed that [the child] had his own Medicare card and, if he was ill, [the child] would take himself to the doctors. For example, after his 18th birthday, [the child] ruptured his ACL at football. [The child] rang Mr Tibbets to let him know about the injury but said that it was “under control”. Mr Tibbets was not required to cover any medical costs or liaise with [the child]’s doctors.
Mr Tibbets confirmed that [the child] would purchase his own clothes, toiletries and other necessities from his own wage. He is not sure who [the child] had nominated as an emergency contact for work or medical purposes.
Mr Tibbets told the Tribunal that he was not asking for any child support payments from Ms Cracroft for [the child], but considered that the money he has paid to [the child] should be offset against his child support payments in respect of their other child (not the subject of this review). Mr Tibbets said that he told Child Support that [the child] was not living with him, but was advised by Child Support that as he was providing financial and emotional support, this equated to him having 100% care of [the child].
Ms Cracroft’s evidence
Ms Cracroft told the Tribunal that she notified Child Support promptly that [the child] had left her home and that she had 0% care of [the child] from 15 January 2024. Ms Cracroft did not understand that Child Support would then record Mr Tibbets as having 100% care of [the child]. Ms Cracroft considered that [the child] had 100% care of himself, with some assistance from others.
Ms Cracroft noted that she and her parents had purchased [the child] a car when he turned 17, however [the child] later sold that car as it had mechanical problems. She does not know how much [the child] received from the sale of the car. [The child]’s employer then purchased him a car. She did not think [the child] had paid any money back to his employer for that car as he was not working for a few months after his ACL injury.
Ms Cracroft said that she also provided money to [the child] when he moved out of her home, to assist him with board and things he needed to set himself up. She provided evidence to the Tribunal confirming that she transferred a total of $660 to [the child] in January 2024. She also paid [the child]’s fees for football.
Ms Cracroft said that [the child] had his own Medicare card but she was listed as his emergency medical contact. She knows this as she was contacted by doctors when [the child] injured himself after he turned 18. Ms Cracroft said she had limited contact with [the child] after he moved out of her home.
Ms Cracroft noted that while [the child] was living at [Mr A]’s, he would, along with others in that household, be responsible for chores, cooking, grocery shopping and so on. She noted that [the child] had always been quite independent.
Ms Cracroft said that [the child] was paying for his accommodation, food, petrol, phone and other expenses from his own money. Ms Cracroft did not consider that Mr Tibbets was providing financial, emotional or other support to [the child].
Assessment of care
Care will generally be worked out based on the number of nights that a child is or is likely to be in the care of a person during the care period (section 54A of the Act). However, the Act does not provide any definition of what constitutes “care”.
The Guide at section 2.2.1 suggests that where there is doubt about who has “care” of a child, consideration will be given to the extent to which a person (relevantly in this case):
·has control of the child, including having overall responsibility for the child and making major decisions relating to who the child spends time with, and the child’s health, education, discipline, recreational and/or social activities, and making arrangements for others to meet the needs of the child (delegated care)
·meets 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
·pays for the costs of meeting the needs of, or otherwise provides financial support for, the child.
The Guide also recognises at 2.2.1 that, in limited circumstances, a person may retain care of a child who is not living with them for a period of time. Consideration is given to who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well as who is meeting the child’s costs, rather than just the accommodation arrangements themselves.
In Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (9 September 2011), the Court considered the current and historical versions of the Guide in forming the view that:
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?
I accept on the evidence before me that each parent has provided some ongoing financial assistance to [the child] after 15 January 2024. However, neither parent provided financial assistance to a level that could be said to be financially supporting all of [the child]’s essential needs. Rather, the evidence from both parties, which was broadly consistent, suggests that from 15 January 2024 [the child] has been financially independent, paying for his own accommodation, food and other essentials from his own wage. He lives in a household where chores and cooking are shared and [the child] contributes appropriately to these household tasks. He takes himself to and from work, looks after his own medical needs and otherwise lives independently.
I am satisfied that there was a change in [the child]’s pattern of care from 15 January 2024, with Ms Cracroft’s care changing from 100% to 0%. I find that from 15 January 2024 neither parent was providing significant ongoing financial or other support to [the child], and neither could be regarded as having “care” of [the child] from that date.
A new percentage of care determination under section 49 of the Act that Ms Cracroft had 0% care of [the child] from 15 January 2024 would have the effect of changing Mr Tibbets’ cost percentage pursuant to section 55C of the Act.
Accordingly, I find, pursuant to section 54F of the Act, that the parties’ pre-existing percentages of care must be revoked, and that new percentage of care determinations of 0% for Mr Tibbets and 0% for Ms Cracroft apply in relation to [the child] from 15 January 2024.
As I have reached the same conclusion as the Child Support objections officer, the decision under review will be affirmed.
DECISION
The decision under review is affirmed.
0
2
0