Waering and Shalders (Child support)

[2024] AATA 1180

Waering and Shalders (Child support) [2024] AATA 1180 (13 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026948

APPLICANT:  Mr Waering

OTHER PARTIES:  Child Support Registrar

Ms Shalders

TRIBUNAL:Member R Prasad

DECISION DATE:  13 March 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – existing percentage of care determinations revoked – dates of application of new determinations – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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. Since 21 April 2021, Mr Waering (the father) and Ms Shalders (the mother) have had a registered child support assessment for their child, born [in] February 2021. Services Australia – Child Support (Child Support) has collected child support on the basis the mother had 100% care and the father had no care of the child from that date. These percentages denote the existing percentages of care.

2. On 30 December 2022, the father contacted Child Support and advised that he had care of the child five nights each week from 23 November 2021 to 28 September 2022, and then from 29 September 2022 he has had two nights care per week.

3. On 3 March 2023, the mother disagreed with the care change notification and stated that she did not believe the dates to be correct.

4. On 8, 15 and 19 March 2023, the father provided third-party statements from his friends, former work colleagues and his father (the paternal grandfather). On 27 March and 4 April 2023, the mother provided two self-written statements and supporting evidence, including third-party statements from a friend and her mother (the maternal grandmother), day care centre statements from 21 November 2022 to 2 April 2023, and letters from her lawyers, day care, and the child’s paediatrician.

5. On 6 April 2023, Child Support decided to reflect the care as 72% to the father and 28% to the mother from 23 November 2021, notified on 30 December 2022 (the care decision).

6. On 11 April 2023, the mother made an objection on the basis that the father ‘was motivated to make the care changes as [she had] asked Child Support Agency to collect on [her] behalf as he has kept quiet and not paid any child support for the past 2 years’.

7. The father disputed the mother’s objection and on 20 and 25 April 2023, he provided further information to support his claim including third-party statements which appear to be what he provided previously but redated and a further statement from his work supervisor, employment leave he took between the period 14 November 2022 to 31 December 2022, and text messages between the paternal grandfather and the mother during the period 28 November 2021 and 24 June 2022, which was translated by Child Support on 3 July 2023.

8. On 28 April 2023 and 29 June 2023, the mother provided self-written statements, third-party statements from the maternal grandmother, work colleague, friends, day care centre, and her employer, text messages between the mother and father between 26 December 2022 to 8 January 2023 translated by the mother, letters from her solicitors and child’s paediatrician, and day care centre statements from 1 September 2022 to 30 April 2023. The mother subsequently provided further information, which included another self-written statement, letter from [Agency 1], letter to employer requesting parental leave, and a photo of a bedroom with a cot.

9. On 26 September 2023, Child Support allowed in part the mother’s objection and decided to reflect care of the child as 50% to both parents from 23 November 2021 (the objection decision). The objections officer noted that these care percentages will be used in the assessment until 28 September 2022, as a subsequent care decision was made in relation to the child’s care from 29 September 2022. The parties were informed that the care of the child had been updated on Child Support’s record as being 50% to both parents from 23 November 2021 to 28 September 2022, 28% care to the father and 72% care to the mother from 29 September 2022 to 25 December 2022, and 0% care to the father and 100% care to the mother from 26 December 2022.

10. On 24 October 2023, the father sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal). The mother provided submissions (folios B1 to B93) (mother’s submissions).

11. The matter was heard on 8 March 2024 and the parties appeared by MS Teams audio. A Mandarin interpreter was booked to assist the Tribunal, however the parties were able to proceed without assistance from the interpreter. The Child Support Registrar was not represented at the hearing, but provided documentation (folios 1 to 333).

ISSUES

1. The relevant issue before me is whether there was a change to the child’s care arrangements and, if so, the date of effect of the new care determination.

CONSIDERATION

What is required?

1. Section 49 of the Child Support (Assessment) Act 1989 (the Act) provides that if I am satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for a period (the care period) as I consider to be appropriate in the circumstances, I must determine the percentage of care for the child to be 0%. If an existing determination of care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period as I consider appropriate in the circumstances, under section 50, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.

2. Section 51 of the Act provides the percentage of care must be determined where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with. Section 54 defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement such as a court order.

3. The Act, under section 54A, provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person.

4. Under section 54F of the Act, if sections 51 and 54G do not apply, a determination of an existing care percentage must be revoked if there is a change to a person’s cost percentage, which is dependent on a change to the care percentage. If notice of the care change is more than 28 days after the change occurred, the revocation of the determination takes effect from the day before the notification day for the person with increased care, and from the day before the care changed for the person with reduced care.

5. Section 54G of the Act provides that where a person was to have at least regular care of a child but had less than regular care despite the child being made available, a care percentage determination is made under section 50 for the other responsible person, and notification of the care change has been made in a reasonable period, the existing care percentage must be revoked. Subsection 5(2) provides that a person has regular care of a child if the person has at least 14% but less than 35% care.

6. Under section 55C of the Act, a person has a different cost percentage if their care percentage changes.

What information has been provided in relation to the care of the child?

1. The father advised that his own father, being the paternal grandfather, came to Australia [in] November 2021 to help him support the child, and went back to China [in] September 2022. The paternal grandfather helped the father look after the child every Monday to Friday during this period, and the mother cared for the child for the remaining days. The father confirmed that he was only disputing the care percentage during the period the paternal grandfather was in Australia to assist with the care of the child. He asserted that the paternal grandfather lived with him in his apartment and would prepare food and formula for the child and look after the child while the father was at work. The father did not work on Tuesdays and Wednesdays and so they enjoyed family time together by going to places like shopping centres, restaurants, and the zoo. The father provided financial support but noted the paternal grandfather brought about $9,000 with him from China. The father advised that he has been accused that he and the paternal grandfather have not taken care of the child, but that is not correct. He provided Child Support third-party statements, which all state that the paternal grandfather was, or they were told he was, looking after the child, such as preparing food, feeding the child, and playing with the child, or that the father was tired having only a few hours’ sleep from looking after his child. Translated text messages between the mother and paternal grandfather indicates the paternal grandfather cared for the child including preparing meals and organising play and sleep times. The messages are exchanged over varying days through November 2021 to July 2022, but does not indicate any particular pattern of care that was arranged by the parties.

2. The father also advised that he had attempted to provide some documents to the Tribunal but had not provided a translated version as requested. The documents were diary entries stating the portions and ingredients of the formula the paternal grandfather was making, whether the child was eating well, and when the child went to sleep. He asserted the mother was recording everything and that the diary was her idea. He confirmed the diary entries were only from late November 2021 and entries were stopped after a few months. He also advised that there were entries by the mother as well.

3. The father confirmed that there are no court orders. At the beginning of 2023, he wanted to enter into an agreement but did not agree with a particular condition that the mother requested, asserting that he wants custody of the child. He asserted that he had COVID-19 towards the end of December 2022 and that when he recovered and attempted to get in contact with the mother to collect the child, he received a letter from her lawyer advising not to contact the mother or her family. His own lawyer advised that it was better not to contact the police but instead to take the mother to court. When the father travelled to China last year to talk to his family, he did not receive any support for his position, including financial support to bring a court case. He has now forgone seeking custody of the child permanently but will continue to pay child support.

4. On the other hand, while the mother agreed with the care percentages from 29 September 2022, she disagreed that the paternal grandfather looked after the child while he was in Australia for five days a week. She asserted that she agreed for the child to spend time with the father around two to three days a week on average, but this changed from week to week, and depended on whether she also had leave from work in which case she would have care of the child for the entire time. She said she had returned to work full-time on 31 January 2022 after her maternity leave and had the ability to work from home throughout the COVID-19 pandemic. From mid-April 2022, she was required to return to the office for a day or two each week while still being able to work from home on the remaining days. In this regard, the father contended that after her maternity leave, the mother returned to work in January 2022 but after a few months she returned to work full-time and therefore did not have time to look after the child. He said the child was young and very ‘active’, and so it was impossible for her to look after the child herself while working. He also could not recall the mother applying for leave and caring for the child for more days in a week. He stated that as he was undertaking work full-time, they needed the paternal grandfather to look after their child when her parents could not for health reasons. The mother disputed that it was not any grandparent’s responsibility to look after their child, and that she did work from home and cared for the child herself. There were also assertions made about the mother living with the father for a period or sleeping over to spend time with him and the child, which the mother denied.

5. The mother provided Child Support statements and supporting evidence, which indicate the mother arranging day care for the child or taking the child to medical appointments, as well as third-party statements stating that the child lives with the mother at the mother’s home and/or the mother paying for all the costs of the child. The letter from the mother’s lawyer dated 8 January 2023 referred to a number of issues and served as a notice that the father would not spend any time with the child until a parenting agreement or order was reached, but allowed the father to spend a few hours with the child during the daytime if the child was returned by 8 pm. The mother’s evidence also included translated text messages she exchanged with the father that indicated the father had not seen the child since 26 December 2022, and that he was not well in early January 2023. A note to the translation states that the mother did not respond to the father’s request to pick up the child on 8 January 2023 after her lawyer had sent him the letter mentioned above. In this regard, the father confirmed that he has not been able to see his child since December 2022.  

6. The mother’s submissions referred to a number of concerns and/or other disputes, and I advised during the hearing that apart from the percentage of care in the relevant care period, I had no power to consider the other issues. She will need to raise those concerns, such as about particular officers or not receiving any child support payments, directly with Child Support for action or advice. Apart from those concerns, the mother suggested the reason for the change of care notification to be in relation to the father having to pay child support, and also queried why a care period was being based on the paternal grandfather’s presence in Australia. Further, the mother pointed out the last care percentage change was stated in Child Support letters to be notified on 26 April 2023 instead of 10 January 2023. In this regard, the father advised that he had contacted Child Support as soon as he recovered from COVID-19 which was in January 2023. I also noted that the Child Support records had 10 January 2023 entered as the notification date, and that 26 April 2023 appeared to be a typographical error. The mother accepted that this was a typographical error and that the child support calculations included the correct date of 10 January 2023.

Has there been a change to the care of the child?

1. I am undertaking a review of the applicable care percentage afresh. The father has confirmed that he is only disputing the care that occurred during the period 23 November 2021 to 28 September 2022, while the paternal grandfather was in Australia, and not the care percentages after this date. The mother is also disputing the care in this period and not the later periods. I will therefore consider the care of the child and whether there has been any change in care in this care period only. The mother raised concern about care being based on the paternal grandfather’s presence in Australia, but I note I must consider the care that took place where a parent has notified of a change in the care pattern. While I am considering the care that has occurred, I understand I am able to consider relevant events that have occurred after the date of notification of the change in care.[1]

   [1] Child Support Registrar v BKCZ [2023] FCA 1109 at [86]; Child Support Registrar v DQFY [2023] FCA 601 at [94].

2. The facts before me indicate that the care of the child changed from the existing percentage of care, where the mother had 100% care from 10 February 2021, effective from 24 April 2021. The father asserts that he had five days care a week during the care period, while the mother says she only permitted the father to have care for one or two days a week with no set arrangement. In relation to the father’s care, he advised that he arranged for the paternal grandfather to take care of the child while he and the mother were working full-time. I have considered the decision of the Federal Magistrates Court in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, when making this finding. That matter provides guidance on the factors that could be considered when determining whether a parent is providing care for a child:

   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?[2]

   [2] Polec at [56].

3. Having considered these factors, I am satisfied that the father arranged for the paternal grandfather to look after the child, including preparing food, playing with the child, and putting the child to sleep, and provided financial support to meet the child’s needs when the child was with the paternal grandfather. While the mother’s evidence indicated that she provided financial support for the child, the information before me does not suggest that this support extended to when the child was in the father’s care.

4. In relation to the percentage of care, the evidence of both parties is conflicting, and the third-party statements and other evidence corroborate the respective party’s claims. The father asserts that the child was in his care for five days a week and the mother only had care two days each week as she was working full-time. The mother disputes this saying the father only had care one or two days a week, and that she was working from home on the other days due to the COVID-19 pandemic. I accept that the mother was able to work from home during the care period, but also accept the father’s assertions that as the child was quite young, it would have been difficult to work the entire time as well as look after the child. The day care centre statements are not for the relevant period and therefore do not provide support that the child was in the mother’s care for longer periods. The translated text messages between the mother and the paternal grandparent and the mother and the father, also do not elucidate any specific care arrangements. In the absence of contrary cogent evidence, I find the child was cared for equally by the parents during the care period and am unable to determine any other percentages of care.

5. Accordingly, I am satisfied that the requirements of section 50 of the Act are met and the pattern of care for both parents has been 50% since 23 November 2021 to 28 September 2022.

6. I note that there are no existing court orders or a parenting plan in place and therefore section 51 of the Act is not applicable. Further, neither parent has less than regular care, and therefore the requirements of section 54G are not met.

7. Under the existing percentages of care, the mother previously had 100% care of the child and now has 50% care, and the father had 0% care and now has 50% care. Accordingly, the cost percentages have changed pursuant to section 55C of the Act.

1. As the father notified of the relevant care change more than 28 days from when care changed, pursuant to subsection 54F(3) of the Act, the date of revocation of the determination of the existing percentage of care is 22 November 2021 for the mother and 29 December 2022 for the father.

2. I note that after the care period, the subsequent care percentage decisions have effect where the father had 28% care and the mother had 72% care from 29 September 2022 to 25 December 2022 (notified 30 December 2022), and then the mother had 100% care from 26 December 2022 (notified 10 January 2023), which the parties are not disputing.

DECISION

The decision under review is affirmed.