Vesey and Campling (Child support)

Vesey and Campling (Child support) [2022] AATA 5128 (18 November 2022)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2022/MC024412

APPLICANT: Ms Vesey

OTHER PARTIES: Mr Campling

Child Support Registrar

TRIBUNAL: Ms Hamilton-Noy, Member

DECISION DATE: 18 November 2022

DECISION:

The Tribunal sets aside the decision under review and substitutes its decision that:

The decision to refuse to revoke the existing determination of care arising from Ms Vesey’s contact on 7 February 2022 is set aside. The Tribunal substitutes its decision that the existing determination of care for Ms Vesey is revoked from 6 February 2022 and from 7 February 2022 Ms Vesey has 100% care of [Child 1]; and that the existing determination of care for Mr Campling is revoked from 7 December 2021 and from 8 December 2021 Mr Campling has 0% care of [Child 1];

The decision to refuse to revoke the existing determination of care arising from Ms Vesey’s contact on 15 February 2022 is set aside. The Tribunal substitutes its decision that the existing determination of care is revoked from 7 February 2022 and from 8 February 2022 a new care determination is made that Ms Vesey has 86% care of [Child 1] and Mr Campling has 14% care of [Child 1].

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 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

This application relates to a decision by Services Australia – Child Support Agency (the Agency) relating to the particulars of the assessment, being the care percentage maintained by the Agency for the child [Child 1].
Ms Vesey and Mr Campling are the separated parents of [Child 1]. This matter relates to contact made by Ms Vesey with the Agency in February 2022 about a claimed change to care arrangements.
Following this contact, on 26 May 2022 an employee of the Agency made a decision to refuse to revoke the existing determination of care.
Ms Vesey objected to this decision on 7 May 2022.
On 5 August 2022, an objections officer of the Agency disallowed the objection.
On 8 August 2022, Ms Vesey made an application to the Administrative Appeals Tribunal for an independent review of the Agency’s decision.
The Tribunal hearing was held on 13 October 2022, on which date both parties spoke to the Tribunal by MS Teams audio and gave evidence on affirmation. At the hearing, the Tribunal had before it documents provided by the Agency (folios 1 to 286), copies of which had been provided to the parties prior to the hearing. Ms Vesey confirmed receipt of the documents with the Tribunal. Mr Campling stated to the Tribunal that he had only received the Agency documents the day prior to the hearing. Given this, following the hearing, Mr Campling was given time to provide any additional submissions he was wanting to rely on and Ms Vesey was given time to provide additional information she was seeking the Tribunal consider. During the deferral period Ms Vesey provided additional information (A1 to A50) and Mr Campling was given time to respond to this and provided additional information (B1 to B6). Ms Vesey was given the opportunity to respond to this information and did not provide anything further to the Tribunal. The Tribunal proceeded to make a decision on all of the information before it on 18 November 2022.

CONSIDERATION

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988.
Before turning to the legal issues in this matter, the Tribunal notes that there are two contacts made by Ms Vesey with the Agency that form the basis of the review before the Tribunal. The first of these occurred on 7 February 2022, at which time Ms Vesey advised the Agency that [Child 1] had been with her 100% of the time from 5 December 2021; she subsequently advised the Agency that it had been 8 December 2021 from which she had had 100% care of [Child 1]. The second of these occurred on 15 February 2022, at which time Ms Vesey advised the Agency she had had 86% care of [Child 1] from 8 February 2022. The objections officer’s decision encompasses both of these contacts, in making a decision to “refuse to reflect the care for [Child 1] as being in Ms Vesey’s 86% care from 8 December 2021 and refuse to reflect the care of [Child 1] as being 86% to Ms Vesey and 14% to Mr Campling from 10 February 2022”. The Tribunal considered that, given this, it has jurisdiction to consider both contacts made with the Agency by Ms sVesey during February 2022 and it has considered each of these contacts in turn below.
The legislative framework
Sections 54F, 54G and 54H of the Assessment Act all provide for the revocation of an existing determination of care in specified circumstances. Section 54F is the provision relevant to the circumstances of this case. Subsection 54F(1) provides that the Registrar (or the Tribunal, standing in the shoes of the Registrar) must revoke a determination of a responsible person’s percentage of care in the following circumstances:
(a) 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 responsible person's existing percentage of care for the child; and
(b) the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and
(c) section 54G does not apply; and

(d) subsection (2) applies in relation to the individual.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

Where the requirements set out in subsection 54F(1) of the Assessment Act are met, subsection 54F(3) then sets out the date of effect of any revocation of care. Subsection 54F(3) states that:
(3) The revocation of the determination takes effect at the end of:
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day; or
(b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i) the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

(ii) the responsible person's care of the child has reduced--the day before the change of care day.

In circumstances where the Tribunal is required to make a new care determination, this is required to be made under section 49 of the Assessment Act where there is no pattern of care of a child or under section 50 of the Assessment Act where there is a pattern of care of a child. Both sections 49 and 50 of the Assessment Act require the Tribunal to consider the care that a parent or non-parent carer has had, or is likely to have, during a care period. The Child Support Guide at 2.2.1 states that a care period is generally a 12-month period from the day on which the care began or changed, but can be a shorter or longer period in the specific circumstances of some cases. While the Tribunal is not bound by the Guide, it considered that this commentary provides useful guidance in the period of time to be considered by the Tribunal in this matter.
Ms Vesey’s contact with the Agency on 7 February 2022
The existing determination of care, which Ms Vesey is seeking the Tribunal revoke, provided for Ms Vesey to provide 52% care to [Child 1] and Mr Campling to provide 48% care to [Child 1] from 1 April 2021.
Ms Vesey contacted the Agency on 7 February 2022 to advise that [Child 1] had been in her care 100% of the time from 5 December 2021; as noted above, Ms Vesey subsequently advised the Agency it had been 8 December 2021 from which she had had 100% care of [Child 1]. The issue in dispute between the parties relates to paragraph 54F(1)(b) of the Assessment Act, that is, whether there were changed care arrangements for [Child 1] that would affect the cost percentage of each of the parties.
Ms Vesey gave evidence to the Tribunal that there had been court proceedings in early 2021 where an independent children’s lawyer had been involved and the Judge had said the parties were to share care of [Child 1] and their other child (who is not a relevant child of the assessment for the purposes of this decision) and had said the children should “do what they like”. Ms Vesey gave evidence that after April 2021 the care of [Child 1] was “all over the place”. She stated that in early December, [Child 1] had spent time with Mr Campling for two nights. Ms Vesey stated that her father had passed away on 11 December 2021 and [Child 1] had been with her over this period and then remained with her from then, until February 2022 when she spent a couple of days with Mr Campling.
Ms Vesey was asked about the care of [Child 1] in December and she stated that [Child 1] had worked on Thursday 9 December 2021 and had been with her on the Friday and Saturday, the day on which her father passed away. She stated that [Child 1] remained with her after Ms Vesey’s father passed away. They spent Christmas Eve at Ms Vesey’s place, with Ms Vesey’s mother and brother, [Child 1]’s brother and [Child 1]’s girlfriend. On Christmas morning [Child 1] and her brother went to Mr Campling’s house and then to [Child 1]’s girlfriend’s house and then returned to Ms Vesey’s where she stayed. During the summer holidays [Child 1] worked at [workplaces]. She stated that [Child 1] and her girlfriend stayed at Ms Vesey’s house for the duration of the summer holidays.
Mr Campling gave evidence to the Tribunal that the care of [Child 1] over December 2021 was “varied”. The Tribunal asked about the intervention order that had been in place between Ms Vesey and Mr Campling and asked whether [Child 1] had been a protected person under the order as of December 2021, to which Mr Campling stated she has been “sometimes” over the years. As to whether the care of [Child 1] changed as of December 2021, Mr Campling stated that he “sticks by his calendar” which he would fill in weekly. (The Tribunal noted that the care calendar was provided in the Agency documents and stated that Mr Campling had had care of [Child 1] on 8, 9, 12, 15 to 21, 25 to 26 and 29 December 2021; on 2 to 3, 9 to 12, 16 to 21, 24 to 25 and 30 January 2022; and on 1 February and 6 to 8 February 2022 – being the relevant dates between 8 December 2021 when Ms Vesey stated care had changed and up to 7 February 2022 when she contacted the Agency about the care change.) The Tribunal asked Mr Campling when the typed list of dates had been prepared and he stated it was “when requested for dates”. He stated that he had kept a calendar of care as he went through each week and, as to why he had not made that available, he stated there was “no reason”.
The Tribunal observed that Ms Vesey had given evidence of [Child 1] having been with her when Ms Vesey’s father passed away on 11 December and asked Mr Campling about his response to this evidence, to which he stated it was “distressing”. As to Ms Vesey’s evidence that [Child 1] had remained with her after her father’s passing on 11 December, Mr Campling stated that “these are the dates she stayed with him”. The Tribunal observed it was having difficulty accepting [Child 1] would stay with Mr Campling after her maternal grandfather had passed away and there were family requirements, to which he stated the Tribunal would have to speak to [Child 1] about this.
The Tribunal asked Mr Campling what the Christmas arrangements had been, given he was claiming [Child 1] was in his care overnight on 25 and 26 December. Mr Campling stated that he had lunch at his mother’s place. When asked to clarify his evidence that [Child 1] had stayed with him overnight on Christmas night, he stated that he goes by his calendar and cannot remember if she stayed the night. He stated that the “kids come and go” and it is “hard to keep track” of things. In response to Ms Vesey’s evidence that [Child 1] had remained with her during January 2022, Mr Campling stated he sticks by his dates. As to whether [Child 1] had been working in January while in his care, he stated that her brothers drop her off or pick her up. In response to Ms Vesey’s statements and care calendar provided to the Agency, Mr Campling stated that he has provided statements from his mother and son. As to whether they had looked at his calendar of dates before they prepared the statements, Mr Campling stated “absolutely”.
Both parents provided copies of text messages between themselves and [Child 1] during the period under review by the Tribunal. The text messages establish that [Child 1] was in contact with both parents. The text messages provided by Mr Campling indicate that [Child 1] was not in his care on 7 February 2022 as he had indicated in his care calendar, as she indicated she had picked up a shift at work. The text messages provided by Ms Vesey indicate that [Child 1] made plans with Ms Vesey, regarding when she would be home and/or when she was due to finish work, on the evenings of 15 December 2021, 21 December 2021, 21 January 2022 and 7 February 2022 and the Tribunal considered that [Child 1] is likely to have been in Ms Vesey’s care overnight on these dates. The Tribunal noted that these dates are all dates that Mr Campling claimed in his care calendar he had had overnight care of [Child 1]. Given these matters, the Tribunal did not find Mr Campling’s care calendar to be a reliable record of the care that Mr Campling had had of [Child 1] between 8 December 2021 and 7 February 2022.
Both parties have provided letters from family members supporting their claims as to the care they state they have had of [Child 1]. The statements are contradictory and irreconcilable and are not prepared by persons independent of the parties. The Tribunal did not place weight on the statements provided by either party.
The Tribunal found the evidence given by Ms Vesey at the hearing about the care of [Child 1] over December when her father passed away, and the arrangements over the Christmas period, to be given clearly and credibly. The Tribunal noted that Mr Campling was unable to give clear evidence about the arrangements for Christmas Day, at a time at which he claims to have had [Child 1] in his care. None of the text messages he provided to the Tribunal after the hearing provides evidence of having [Child 1] in his care overnight between 8 December 2021 and 7 February 2022. The Tribunal preferred the evidence of Ms Vesey about the care arrangements for [Child 1] in the care period 8 December 2021 to 7 February 2022 and finds that Ms Vesey had 100% care of [Child 1] in this period.
The Tribunal finds that, if it were to make a new care determination, Ms Vesey’s cost percentage would change from 50% to 100% and Mr Campling’s would change from 50% to 0% (see: section 55C of the Assessment Act). The Tribunal is satisfied that paragraph 54F(1)(b) is met.
The Tribunal must next consider whether section 54G applies. The Tribunal is satisfied that it does not, on the basis that it is not satisfied that Ms Vesey made [Child 1] available to Mr Campling. Section 54G does not apply and paragraph 54F(1)(c) is therefore met.
As to whether subsection 54F(2) applies, the Tribunal finds that it does on the basis that section 51 did not apply (see: paragraph 54F(2)(a) of the Assessment Act: there was no interim period). Paragraph 54F(1)(d) is therefore also met.
As all of the requirements set out in subsection 54F(1) are established in this case, the Tribunal must revoke the existing determination of care and make another determination under section 49 or 50 to replace the revoked determination. The Tribunal finds that a new determination of care is able to be made under section 50 of the Assessment Act in respect of Ms Vesey, that she had 100% care of [Child 1] from 8 December 2021; and under section 49 of the Assessment Act in respect of Mr Campling, that he had 0% care of [Child 1] from 8 December 2021.
Subsection 54F(3) of the Assessment Act provides for the dates of effect of a revocation of care and the date from which a new care determination takes effect. The Tribunal finds that notification of the care arrangements did not occur within 28 days of the change of care. Paragraph 54F(3)(b) provides that, in these circumstances, the existing determination of care for Ms Vesey is revoked from 6 February 2022 and from 7 February 2022 Ms Vesey has 100% care of [Child 1] and the existing determination of care for Mr Campling is revoked from 7 December 2021 and from 8 December 2021 Mr Campling has 0% care of [Child 1].
Ms Vesey’s contact with the Agency on 15 February 2022
The second contact that forms the basis of the objections officer’s decision was contact made by Ms Vesey with the Agency on 15 February 2022. The record of this contact reflects that Ms Vesey advised the Agency that [Child 1] had stayed at Mr Campling’s house two nights the prior week and had advised Ms Vesey that she would stay at Mr Campling’s house two nights per fortnight going forward.
The Tribunal first considered section 54F of the Assessment Act, the provisions of which are set out above. The Tribunal accepts from the evidence before it that the Agency became aware on 15 February 2022 that the administrative assessment did not reflect the care Ms Vesey stated was actually taking place for [Child 1].
The Tribunal has set out in some detail, above, its reasons for accepting the evidence given by Ms Vesey regarding the care arrangements for [Child 1] from December 2021 onwards. The Tribunal finds that, at the time Ms Vesey contacted the Agency on 15 February 2022, [Child 1] was of an age to be making her own decisions around the care provided by each of the parents. The Tribunal accepts that, as of the date of contact, the intention was for [Child 1] to spend two nights per fortnight with Mr Campling. While not extensive, the text messages provided by Mr Campling confirm [Child 1] had some overnight time with him in February and March 2022.
The Tribunal finds that the best evidence before it is that, if the Tribunal were to make a new care determination under section 50 of the Assessment Act, the likely pattern of care for the care period, being a period of 12 months from 8 February 2022 when care changed, was that Ms Vesey would have 86% care of [Child 1] and Mr Campling would have 14% care of [Child 1]. If this new care determination were made, Ms Vesey’s cost percentage would change from 50% to 76% and Mr Campling’s cost percentage would change from 50% to 24%.
The Tribunal finds that section 54G of the Assessment Act does not apply as neither parent was to have less than regular care (14% care) of [Child 1] under the new care arrangements. For the same reasons as those set out above, the Tribunal finds that subsection 54F(2) does not apply.
The provisions in section 54F also are met in respect of Ms Vesey’s contact with the Agency on 15 February 2022 and the Tribunal must therefore also revoke the existing determination of care in relation to this contact. Subsection 54F(3) states that, where notification of a care change occurs within 28 days (as it has for the second contact, where contact was made on 15 February 2022 in relation to a care change that occurred on 8 February 2022), the existing determination of care is revoked from the day before the change of care day. The existing determination of care is revoked from 7 February 2022 and from 8 February 2022 a new care determination is made that Ms Vesey has 86% care of [Child 1] and Mr Campling has 14% care of [Child 1].

DECISION

The Tribunal sets aside the decision under review and substitutes its decision that:

[2022] AATA 5128

18 November 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction

Remedies