Wallage and Seabaugh (Child support)

[2021] AATA 3682

Wallage and Seabaugh (Child support) [2021] AATA 3682 (18 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021406

APPLICANT:  Mr Wallage

OTHER PARTIES:  Child Support Registrar

Ms Seabaugh

TRIBUNAL:Member S Letch

DECISION DATE:  18 August 2021

DECISION:

The decision under review is affirmed.

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 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. Mr Wallage and Ms Seabaugh are the parents of [the child]. Care for [the child] had been recorded by the Child Support Agency (CSA) as 88% to Ms Seabuagh and 12% to Mr Wallage when, on 20 February 2020, Mr Wallage advised the CSA of a change in [the child]’s care. Mr Wallage advised that, from 1 September 2019, [the child] had been living with his friend’s mother ([Ms A]).

2. On 29 June 2020, the CSA decided to refuse to accept a change in care had occurred. Mr Wallage objected to the decision on 6 November 2020 (notably, more than 28 days after he was advised of the original decision).

3. Mr Wallage’s objection was disallowed on 2 March 2021. It is convenient to set out some extracts from the objection decision by way of background:

   …

   REASONS FOR THE DECISION

   In order to make a decision to change the record of care for a child we must be satisfied that there has been a change to the ongoing pattern of care (section 49 and 50 of the Child Support
   (Assessment) Act 1989).

   The pre-existing care arrangement for [the child] was 88% to Ms Seabaugh and 12% to Mr Wallage from 27 February 2012.

   Neither party has advised us of a court order regarding care arrangements for [the child]. We will base our decision on the actual care arrangements for [the child].

   Mr Wallage`s position is that [the child] has not been living with himself or Ms Seabaugh since 1 September 2019.

   Ms Seabaugh`s position is that [the child] was still in her care until 21 September 2020. Ms Seabaugh acknowledged that [the child] had been spending a lot of time at his friend`s home after he left school in November 2019,
   however, he still slept and showered at home, ate food from her home, and she clothed him.

   We note that in September 2019, the time that Mr Wallage says [the child] started living with a third party, [the child] was 16 years of age. It is common that older teenagers will often stay with friends or relatives, which from the information provided by Mr Wallage and Ms Seabaugh, appears to be the case with [the child].

   Clearly, his care requirements are very different to that of a young child and he does not need
   constant supervision or assistance with his daily activities at 16 years of age.

   The Child Support Guide section 2.2.1 states that in order to determine the extent of care provided by a person, one must consider the following:
   To what extent 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).
   To what extent the 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.
   To what extent the person pays for the costs of meeting the needs of the child.
   To what extent the person otherwise provides financial support for the child.
   To what extent the child provides for his or her own needs or has those needs met from another
   source.
   To what extent the child is financially independent or financially supported from another source.

   Although [the child] may stay with friends, Ms Seabaugh has advised that [the child] was still in her care.

   Mr Wallage said that [the child] told him in September 2019, [Ms A] had kicked him out of home in approximately June 2019.

   [Ms A] advised in her statement that [the child] stopped living full-time with his mother in December 2019. [Ms A] said that from December 2019 to March 2020, [the child] was mostly at her home, however, she was not supporting him financially or providing him with meals, and he did not pay rent or board to her. [Ms A] said that [the child] would return to Ms Seabaugh`s home for meals, new clothes and other necessities.

   This information indicates to us that even though [the child] was frequently not at home, he returned to
   Ms Seabaugh`s house for his basic needs. Mr Wallage advised that [the child] was not in receipt of Centrelink benefits and [Ms A] stated she was not supporting [the child] financially: this indicates that Ms Seabaugh was supporting [the child] financially.

   [Ms B] advised that Ms Seabaugh had 100% care of [the child] up to and including the time she provided her statement, 26 February 2020. [Ms B] stated that Ms Seabaugh was responsible for [the child] emotionally and financially.

   [Ms A] advised that she did not know where [the child] was living between March and August 2020, before he returned to her home in September 2020. [Ms A] noted the difference that when [the child] started living at her house again in September 2020, she believed he no longer returned to Ms Seabaugh`s house for regular meals.

   Ms Seabaugh advised us on 6 October 2020, that [the child] was no longer in her care from 21 September 2020.

   On 30 October 2020, we made the decision that care arrangements for [the child] were 0% to Ms Seabaugh and 0% to Mr Wallage from 21 September 2020.

   The information provided by [Ms A] supports that [the child] left Ms Seabaugh`s care in September 2020.

   We have decided to refuse to accept the care of [the child] as 0% to Ms Seabaugh and 0% to Mr Wallage from 1 September 2019.

   We have decided not to revoke the pre-existing care decision for [the child] that Ms Seabaugh had 88% care and Mr Wallage had 12% care from 27 February 2012. This care remained in effect until the child support assessment ended on 20 September 2020.

   …

4. Mr Wallage applied for further review by the Tribunal on 5 May 2021 (notably, too, more than 28 days after he was advised of the objection decision). There are no time limits to seek a review of care percentage determinations; however, the date of effect of a decision can be impacted by a late objection or late application to the Tribunal. [1]

   [1] See sections 87AA and 95N of the Child Support (Registration and Collection) Act 1988.

5. Mr Wallage participated in the Tribunal’s hearing by conference telephone. Ms Seabaugh did not answer the Tribunal’s telephone calls at, and around, the time of the hearing; the hearing proceeded in her absence.

6. Mr Wallage told the Tribunal that he lost his job in 2018 around the time Ms Seabaugh applied for “CSA collect”, and had been in prison for a period and had been assessed as liable to pay child support. He has a number of other disputes with CSA which he had expected would be dealt with by the Tribunal. The Tribunal explained that the only matter before it in the present review was the objection decision of 2 March 2021 concerning [the child]’s recorded care in respect of Mr Wallage’s notification to the CSA of 20 February 2020.  The Tribunal explained to Mr Wallage that he will have a right to make separate applications to the Tribunal in respect of any other objection decisions the CSA has, or will, make.

7. Mr Wallage said [the child] had to “live on streets, or with friends” from around the middle of 2019 after he was “kicked out” by Ms Seabaugh. Mr Wallage advised that his case largely relies on the statement by [Ms A] (summarised by the objections officer, but not supplied in the CSA materials).  He said his understanding was that [the child] lived with his girlfriend for around three months from September 2019 before moving in with [Ms A] in December 2019. Mr Wallage told the Tribunal that Ms Seabaugh was not providing any financial support to [the child]. Mr Wallage said all [the child] did was “sit around” and was provided food and a place to sleep, and that Ms Seabaugh “never gave any money”. He said that [the child] was eventually granted a youth allowance after Ms Seabaugh had “refused to sign the paperwork” when he had tried to claim earlier.

8. Following the hearing, the Tribunal sought and obtained the missing statement from [Ms  A] dated 15 November 2020. She advises that it was her understanding that [the child] ceased “living full-time” in around December 2019. Until March 2020, [the child] was “mostly residing in my home”; she says she was not “financially responsible for [the child]”. She advises she did not know how [the child] was being financially supported. She says that she was “not providing him with anything more than basic breakfast foods”. She understood [the child] would frequently return to his mother’s for meals, clothes and other necessities. After March 2020, she advises she saw [the child] sporadically, and did not know where he was living, although understood he was staying with his girlfriend “in various situations”. From around September 2020 (around when the case ended), [Ms A] advises [the child] has been “mostly residing in my home again”.

9. Care decisions are made pursuant to the Child Support (Assessment) Act 1989. Put simply, a new care decision can be made if there has been a relevant change in the parents’ pattern of care: see Division 4 of Part 5 of the Act. Here, if Mr Wallage’s submission is accepted, care for [the child] would be recorded as 0% to him and 0% to Ms Seabaugh; the corollary would be a “terminating event” for child support purposes. Those events take effect from when they occur, and are not impacted by Mr Wallage’s late objection and application to the Tribunal.

10. The concept of care is broader than just physical nights in care. It is contemplated that older children will often spend nights away from a parent’s home; this does not mean they do not continue to be regarded as in a parent’s care. Where a parent maintains an active role in the child’s life — and in particular, continue to provide financial support — they can continue to be regarded as providing care.

11. Here, Mr Wallage’s evidence is that he was not aware of any support being provided to [the child] by Ms Seabaugh. It is possible support in the form of money was being provided for which Mr Wallage was not aware. [Ms A]’s evidence was that she was providing limited support in the form of breakfast and some accommodation; the assumption must be that [the child] was receiving financial support from another source. [Ms A]’s evidence was that [the child] was frequently eating meals at his mother’s home, and that his mother was providing for clothing and “other necessities”. Ms Seabaugh’s evidence to the CSA was that whilst [the child] was increasingly spending nights away from home from September 2019, she was providing food and clothing and other financial support, and that he regularly slept and showered at home.

12. Following Ms Seabaugh’s notification to the CSA on 6 October 2020 that [the child] had left her care, the CSA recorded care as 0% for each parent from 21 September 2020. That decision is not before the Tribunal; the only matter before the Tribunal is Mr Wallage’s notification on 20 February 2020 that [the child] was no longer in Ms Seabaugh’s care from 1 September 2019.

13. On the evidence available to it, the Tribunal considers that Ms Seabaugh continued to have an active role in [the child]’s supervision, and continued to provide him with financial and emotional support. The Tribunal is not satisfied that the evidence supports a conclusion that the existing care percentages recording care as 88% to Ms Seabaugh and 12% should be revoked following Mr Wallage’s notification on 20 February 2020.

14. As the Tribunal has reached the same conclusion as the objections officer, it is not necessary for the Tribunal to consider the effect of Mr Wallage’s late objection and late application to the Tribunal. The decision under review will be affirmed

DECISION

The decision under review is affirmed.