Tomkins and Tomkins (Child support)

[2017] AATA 2867

Tomkins and Tomkins (Child support) [2017] AATA 2867 (29 November 2017)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/AC012281

APPLICANT:  Mr Tomkins

OTHER PARTIES:  Child Support Registrar

Ms Tomkins

TRIBUNAL:Member M Kennedy

DECISION DATE:  29 November 2017

DECISION:

The decision under review is affirmed.

Member M Kennedy

Catchwords
Child support – Care percentage decision – Care of a child when not living with the parent – No change to existing percentage of care – 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

1. Mr Tomkins and Ms Tomkins are the parents of [Child 1], in respect of whom a child support assessment has been in place.  At the time of events relevant to this review, Mr Tomkins was assessed to have a child support liability to Ms Tomkins on the basis that Ms Tomkins had 100% care of [Child 1].

2. On 26 April 2017, Mr Tomkins contacted the Department and advised that he believed that neither he nor Ms Tomkins were providing care for [Child 1]. 

3. On 1 June 2017 after discussing the matter with both parents and seeking supporting evidence, the Department decided that care arrangements for [Child 1] had changed, and Ms Tomkins was providing care for [Child 1] for only 42% of the time, and the child support assessment was amended accordingly.  Ms Tomkins had told the Department that [Child 1] was spending 4 to 5 nights each week staying at an aunt’s home.

4. Ms Tomkins lodged an objection to that decision on 2 June 2017, and subsequently provided further documentary evidence.  Ms Tomkins’ case was that although [Child 1] no longer lived under her roof for most of the week, she continued to provide financial and other support to her.  Mr Tomkins also provided further documentary evidence and submissions.  The objections officer decided that [Child 1] continued to be in Ms Tomkins’ care for 100% of the time, and therefore allowed the objection on 4 August 2017.

5. Mr Tomkins applied to the Tribunal for review on 7 August 2017.

Care determinations

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Child Support (Assessment) Act 1989 (the Act).

2. Relevantly to the circumstances of this case, section 54F of the Act[1] provides for revocation of a determination of a percentage of care if (among other requirements):

   ·       the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·       the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.  If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

   [1] I have considered section 54G of the Act, but note that the provisions of paragraph 54G(1)(c) do not apply to Mr Tomkins as he has not had a determination of his percentage of care for [Child 1] made under section 50 of the Act.

3. As to the nature of ‘care’ for child support purposes, the Department’s policy recognises that in some circumstances, a person may still be providing care for a child who is not living under their roof: Child Support Guide 2.2.1.  The policy poses questions about the extent to which a person has control of the child or makes major decisions for the child.  Factors such as the extent to which a person is providing clothing, food, emotional support, supervision and financial support are also relevant, as are the extent to which the child provides for such things themselves or from another source.  The situation is complicated in the case of older children who typically take a greater role in making important decisions for themselves.

4. The issue for me to decide therefore is whether I am satisfied on the evidence before me that the care of [Child 1] that was actually taking place did not correspond with Ms Tomkins’existing percentage of care of 100%.

Evidence

1. Mr Tomkins gave evidence at the hearing consistent with the information he had provided to the Department.  Mr Tomkins told me that he had spoken to [Child 1] in April 2017 in the context of [Child 1] needing him to sign forms for her to obtain a passport. Mr Tomkins said that he had learned from [Child 1] that she was not living with Ms Tomkins, and had not done so for some time.  Mr Tomkins said that he had been told that [Child 1] had very little to do with Ms Tomkins.

2. Ms Tomkins told me that prior to Easter 2017 she, [Child 1] and another [child]had been sharing a room together at her mother’s house.  The arrangements were not conducive to [Child 1]’s school work, and it was agreed with [Ms A] (Mr Tomkins’ brother’s wife) that [Child 1] could live with her, as she had a spare room.  Ms Tomkins was to pay $100 per week for [Child 1] to stay there.  At the hearing, Ms Tomkins took me through examples of payments made to [Child 1]’s bank account that she said included the $100, that would be paid directly to [Ms A] by [Child 1], and [Child 1] would retain any additional funds.  I note that the amounts of the transactions varied, but were consistent with Ms Tomkins’s evidence.

3. Ms Tomkins also gave evidence to the Tribunal that she would continue to drive [Child 1] to and from school when her work commitments enabled her to do so, and she would contact [Child 1] on the phone every day.

4. In response to Mr Tomkins’ evidence of his conversation with [Child 1], Ms Tomkins alleged that [Child 1] had been forced to say things that were not accurate in order to obtain Mr Tomkins’ signature for the passport.  Mr Tomkins denied the allegations made by Ms Tomkins about events surrounding his conversation with [Child 1] in April 2017.

5. Ms Tomkins also relies on paying school fees for [Child 1] throughout the period as evidence that she continued to provide care.  Supporting documentation from [Child 1]’s school is before the Tribunal.  Mr Tomkins alleges that [Child 1] holds a scholarship from the school, but Ms Tomkins told me that the school fees she has paid relates to both her [children] and there is no scholarship. I note the documentary evidence from the school refers to the fees paid being for [Child 1].

6. I have taken into account documentary evidence provided by Mr Tomkins.  The evidence is statements from a joint bank account from September to November 2016.  Mr Tomkins explained that although the account was a joint bank account, he did not operate or have access to the account, although he did receive statements.  Mr Tomkins relies on the account statements to show that Ms Tomkins provided only $401 to [Child 1] during the 12 week period covered by the account. In this way, Mr Tomkins asserts that the financial support provided by Ms Tomkins was too little to amount to 100% care.

Assessment

1. On balance, I consider that the evidence provided by Ms Tomkins does establish that she continued to provide very substantial financial support to [Child 1] during the relevant period.  As I have mentioned above, the financial records provided corroborate Ms Tomkins’s evidence that board of $100 was provided by her to [Child 1].

2. Furthermore, I note that Ms Tomkins continued to meet [Child 1]’s school fees at the time of the alleged change to the care arrangements and for a significant period of time thereafter during the period in question.

3. Given the corroboration available to Ms Tomkins’ evidence about the financial aspects of [Child 1]’s care, I will also accept her evidence that she continued to have daily contact with [Child 1] as she has described, and I will accept that the boarding arrangements themselves were made and approved by her.

4. I have considered the documentary evidence provided by Mr Tomkins, but I do not consider that it contradicts Ms Tomkins’ evidence.  The evidence relied upon by Mr Tomkins falls outside the relevant period, and Ms Tomkins described the commencement of [Child 1] living during the week with her aunt as taking place well after the statements Mr Tomkins has provided.  In this way, it is not to the point that Ms Tomkins provided minimal direct financial support to [Child 1] during parts of 2016.

5. I am satisfied on the evidence before me that Ms Tomkins continued to provide care for [Child 1] even though [Child 1] did not live under her roof for 4 to 5 nights each week after Easter 2017.

6. It follows that I am not satisfied that the care of [Child 1] that was actually taking place did not correspond with Ms Tomkins’ existing percentage of care.  In these circumstances, the existing care determination cannot be revoked and continues in effect.  This means that child support is to continue to be calculated on the basis that Ms Tomkins had 100% care of [Child 1] after 26 April 2017.

7. I affirm the objections officer’s decision to allow Ms Tomkins’ objection.

DECISION

The decision under review is affirmed.