Tumlin and Lillard (Child support)

[2024] AATA 384

Tumlin and Lillard (Child support) [2024] AATA 384 (4 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026600

APPLICANT:  Ms Tumlin

OTHER PARTIES:  Child Support Registrar

Mr Lillard

TRIBUNAL:Member F Petrone

DECISION DATE:  04 January 2024

DECISION:

The decision under review, as substituted by the decision of the objections officer, is affirmed.

This means that the existing care percentage determination reflecting [Child 1] as 100% in Mr Lillard’s care from 8 December 2021 remains in place.

CATCHWORDS

CHILD SUPPORT – percentage of care – child living away from home – carer entitled to receive still providing financial support, guidance and transport – 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. Ms Tumlin and Mr Lillard are the parents of [Child 1], in respect of whom a child support assessment has been in place since 23 October 2020. 

2. Care of [Child 1] has been recorded as 100% to Mr Lillard since 8 December 2021.

3. On 6 July 2023 a decision was made to record the care of [Child 1] as 0% to Mr Lillard and 0% to Ms Tumlin from 1 November 2022 with date of notification as 2 May 2023.

4. Mr Lillard objected to this decision and on 16 August 2023 an objections officer allowed the objection and made the decision to record the care for [Child 1] as 100% care to Mr Lillard and 0% care to Ms Tumlin from 8 December 2021 on the basis that Mr Lillard had continued to support [Child 1] financially despite him spending a number of nights per week elsewhere.

5. Ms Tumlin applied to this Tribunal for a further review on 17 August 2023 as she believes [Child 1] has not been in Mr Lillard’s care since April 2023.

ISSUES

1. The issues which arise in this case are:

   ·      Has there been a change in care and should the existing care determination be revoked?  If so,

   ·      What is the percentage of care for each parent? And,

   ·      What is the date of effect of any decision?

CONSIDERATION

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 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.

Has there been a change in care and should the existing care determination be revoked?

1. The relevant existing percentage of care prior to April 2023 was 100% care to Mr Lillard.  I must decide whether the care that is actually taking place corresponds with that care determination.

2. The concept of what amounts to ‘care’ for the purposes of the child support scheme is not defined in the legislation beyond the instruction that (with the exception of certain interim care percentage determinations) the care percentage determination should reflect the care that is actually taking place.  That question is unlikely to be complicated where, for example, a child is young and physically in the care of one parent or the other and living under an individual’s roof in a consistent pattern of care. 

3. For older children who do not physically reside with either parent, the assessment of whether the child is in the care of either parent is more difficult, but the fact that a child does not reside with his or her parents does not necessarily mean that the parents do not provide care.

4. Government policy in the Child Support Guide at 2.2.1 Basics of Care provides some guidance.  In determining whether care exists, the policy suggests that a decision-maker can consider whichever of the following factors that are relevant:

   … based on the extent to which the:

   ·person 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

   -arrangements for others to meet the needs of the child (delegated care)

   ·person 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

   ·person pays for the costs of meeting the needs of the child

   ·child provides for his or her own needs or has those needs met from another source

   ·child is financially independent or financially supported from another source.

5. Furthermore, in relation to 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. In Polec & Staker (SSAT Appeal) [2011] FMCAfam 959, the Court was considering a situation where an older child had been living with his mother but moved away to take up an apprenticeship. The Court noted the absence of a statutory definition of care in this context and proposed the following list of factors for consideration:

   [56] 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?

7. The Court in that case had also earlier observed that in the circumstances of that case, where the child was living with neither parent, the most obvious matter to be considered was who is meeting the child’s costs: at [45].

8. With that guidance from the government’s policy and from the Court in mind, I turn to consider the evidence in this particular case.

9. Ms Tumlin provided evidence at hearing and in the form of a letter from [Ms A] (page 121 of the Tribunal documents), that [Child 1] has been living with a friend and his family since August 2022, that he rarely went to Mr Lillard’s house and that he has been staying at Mr Lillard’s house for a couple of nights per week, on average, since April 2023.

10. [Ms A] states in her letter that Mr Lillard paid her $250 per fortnight until November 2022 and then made [Child 1] pay her from his work money after that.  She states that on 12 January 2023 [Child 1] only paid $150 as his work hours got cut back and that she has not received anything from [Child 1] or Mr Lillard since February 2023.

11. Mr Lillard states that he has always cared for [Child 1] financially and that he was staying with [Ms A] 3–4 nights per week to facilitate his ability to get to work in [Town 1].  Mr Lillard states that he continued to maintain a bedroom at his house for [Child 1] and he did his laundry when he returned home.  He states that [Child 1] has now returned to live at his home having obtained his licence and a work transfer to another location that is not as far from Mr Lillard’s house.

12. Mr Lillard disagreed with some aspects of [Ms A’s] letter and states that even when he was not paying [Ms A] directly, he would send food and other things with [Child 1].  He states that he purchased a vehicle for [Child 1] and that he pays the car loan and insurance for that vehicle.

13. Ms Tumlin understands from [Ms A] that [Child 1] returned to live with Mr Lillard in early November 2023.  Mr Lillard states that regardless of where [Child 1] slept, he has continued to support him financially including assisting with medical and clothing expenses as needed.

14. Bank statements provided to the objections officer by Mr Lillard indicate that between 14 August 2022 and 16 June 2023 he transferred amounts totalling $3,758.00 to [Child 1].  He provided evidence that he has since assisted [Child 1] with purchasing a vehicle and with the loan and insurance expenses associated with that.

15. Based on the evidence provided, I am satisfied that although [Child 1] may not have been physically present at Mr Lillard’s house, Mr Lillard was nevertheless providing care to [Child 1] by maintaining a room for him at his house and providing financial support, guidance, laundry and transport to his friend’s house as needed.

16. I therefore conclude that there is no change in care and I decline to revoke the existing care percentage determination reflecting [Child 1] as 100% in Mr Lillard’s care.  Given this conclusion, there is no need for me to consider the other issues identified at paragraph 6 above.

DECISION

The decision under review, as substituted by the decision of the objections officer, is affirmed.

This means that the existing care percentage determination reflecting [Child 1] as 100% in Mr Lillard’s care from 8 December 2021 remains in place.