Welbeck and Welbeck (Child support)

[2020] AATA 580

Welbeck and Welbeck (Child support) [2020] AATA 580 (16 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/BC017612 & 2019/BC017613

APPLICANT:  Ms Welbeck

OTHER PARTIES:  Child Support Registrar

Mr Welbeck

TRIBUNAL:Member F Hewson

DECISION DATE:  16 January 2020

DECISION:

The tribunal decided to:

• set aside the decision to revoke the existing percentage of care determinations from 1 February 2019 and substitutes its decision not to revoke the existing percentage of care determinations. The date of effect of the decision is 31 July 2019.

• set aside the decision to revoke the existing percentage of care determinations from 27 May 2019 and substitutes its decision not to revoke the existing percentage of care determinations.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to likely pattern of care - 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

1. Ms Welbeck and Mr Welbeck are the parents of children, including a son (the child) aged 17, in respect of whom there is a child support assessment. This review is about the percentages of care for the child used in the child support assessment.

2. The Department of Human Services – Child Support (the Department) recorded that from 6 May 2019 Ms Welbeck had a percentage of care of the child of 100% and Mr Welbeck had a percentage of care of 0% (the existing care determinations).

3. Following notification by Ms Welbeck on 4 March 2019 of a change in the care, the Department made a decision on 29 May 2019 to make new care determinations, reflecting that Ms Welbeck had a percentage of care of the child of 25% and Mr Welbeck had a percentage of care of 0%.

4. On 10 July 2019 Mr Welbeck made a further notification of a change in the care on the basis that neither parent had any care of the child from 7 January 2019. On 25 July 2019 the Department made a decision to make new percentage of care determinations, reflecting that from 27 May 2019 Ms Welbeck had a percentage of care of the child of 0% and Mr Welbeck had a percentage of care of 0%.

5. Ms Welbeck lodged an objection to the care decision made on 29 May 2019 and on 30 September 2019 an objections officer decided to disallow the objection.   

6. On 31 July 2019 Mr Welbeck lodged an objection to the care decision made on 25 July 2019 and on 1 October 2019 an objections officer decided to disallow the objection.

7. On 14 October 2019 Ms Welbeck lodged an application for review by this tribunal of the objection decisions made on 30 September 2019 and 1 October 2019. The application was heard on 16 January 2020. Ms Welbeck spoke to the tribunal by conference telephone. Mr Welbeck also spoke to the tribunal by conference telephone. The Child Support Registrar did not attend the hearing. As well as the evidence of Ms Welbeck and Mr Welbeck at the hearing, the tribunal also had regard to the documents provided by the Department, a copy of which was sent to the parties.

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for the child.

2. The issues for the tribunal to determine in this case are:

   ·     Whether there should be a change to the percentages of care in respect of the child used in the child support assessment for the relevant period; and, if so,

   ·     What percentages of care should be used? and

   ·     What is the date of effect of the change?

CONSIDERATION

1. The Department’s records show that from 6 May 2016 Ms Welbeck’s percentage of care for the child was 100% and Mr Welbeck’s percentage of care was 0%.  As set out above, on 4 March 2019 Ms Welbeck notified the Department of a change in the care, such that she had a percentage of care of 25% and Mr Welbeck had a percentage of care of 0%. New percentage of care determinations were made on that basis on 29 May 2019.

2. At the hearing Ms Welbeck said the care of the child changed when he moved from her home to stay with a friend’s family [in Region 1] in early March 2019, so he could attend a [college] course that was not available closer to home. Ms Welbeck said the intention was that the child would return to her home on weekends and for vacation periods. She said she spoke to someone in the Department in January 2019 and was advised that her care would therefore be 25%. She notified of a change in the care on the basis of that advice. Ms Welbeck said she objected to the decision because she became aware that she could be assessed as having 100% of the care of the child, because she was continuing to support him financially as well as being responsible for ensuring that his other needs were met.

3. Ms Welbeck referred to a letter she submitted to the Department, from [Friend A], which confirmed the arrangements for the child when he was staying with [Friend A’s] family. Ms Welbeck said she made weekly payments to [Friend A] to cover the child’s expenses, and for a period of some months gave her the use of a car. Ms Welbeck said whereas she had previously made payments directly to the child’s account, she stopped doing so when he lost his debit card for a third time. Instead she made arrangements for the child to access an account in her name directly. She said the account was only used by the child. She noted that the transactions showing on the account could be identified as the child’s by reference to the location of the transaction, as he was [in Region 1]. Ms Welbeck said she did not place any specific limits on the child’s spending; it was understood that she would continue to meet all of his expenses. Ms Welbeck said, for example, that as well as payments to [Friend A], she paid expenses related to the child’s [college] course, transport costs and health care. The transport costs included payments for Uber, because the child was residing in an area of [Region 1] which was not serviced by public transport.

4. As well as supporting the child financially, Ms Welbeck said she is in contact with the child daily. She took him to the information session for his [college] course and lodged the paperwork on his behalf. After he moved to [Region 1] she arranged his appointments with a [health professional], in relation to an ongoing issue, and with a dentist. Ms Welbeck said the child has ceased his studies at [his college] due to the difficulties with transport. While he was studying he returned to her home on about two weekends a month, and for most of the vacation periods. He has remained [in Region 1] as job opportunities are better than if he returned home. The child has made enquiries with Centrelink, but has not lodged a claim for a payment. Ms Welbeck agreed that more recently Mr Welbeck has also been contributing to the financial support of the child.

5. Mr Welbeck said he does not have any information to dispute the evidence given by Ms Welbeck. He wasn’t having contact with the child during the early part of 2019. In relation to Ms Welbeck’s description of the arrangements for the care of the child, Mr Welbeck said he “suspects that’s exactly what was happening”.  He said he has been in contact with the child since about June 2019 and has been providing financial support since that time. He and Ms Welbeck subsequently had some contact about the arrangements and the need to motivate the child. As a result the level of Mr Welbeck’s financial support increased in about October/November 2019. Mr Welbeck said he is meeting all of the child’s living expenses, including accommodation costs paid directly to [Friend A]. He has made arrangements for the child to see [different health professional], and he is assisting with a claim for Centrelink payments. He also meets expenses for travel by Uber. He confirmed that the child ceased studies because of the transport logistics. He expects to have regular weekend care of the child.

6. Ms Welbeck disagreed that Mr Welbeck is meeting all of the child’s expenses. She said she continues to meet a significant portion of his expenses, which she believes to be more than 50%. She continues to have daily contact with the child and sees him regularly. She said she has not had any detailed discussions with the child or Mr Welbeck about who is meeting what expenses. Mr Welbeck said he believes the arrangements on both sides have been completely informal, perhaps too informal.

7. In relation to his notification in July 2019 that neither parent had care of the child from January 2019, Mr Welbeck said he had only recently resumed contact with the child, who said he was living independently. He said he was not aware of all the circumstances of the arrangements at the time.

8. I considered the available evidence relevant to the changes in care notified on 4 March 2019, by Ms Welbeck, and on 10 July 2019 by Mr Welbeck.  The documents submitted by the Department include the following:

   4 March 2019

   Ms Welbeck notified of a change in the care of the child from 2 February 2019. It was recorded that the child was “living with a Guardian” and would return to her care during 14 week school holiday periods. This was assessed to amount to 25% of the care of the child.

   12 March 2019

   It was recorded that Mr Welbeck agreed with the change in care of the child, but disputed the date of effect of the change.

   2 April 2019

   Ms Welbeck advised that from 1 February 2019 the child was living away from home to attend school in [Town 1]. A check of the Department’s records confirmed that [Mr A] had made a statement to Centrelink confirming that the child entered his care on 1 February 2019.

   29 May 2019

   The Department made a decision to revoke the existing percentage of care determinations and make new percentage of care determinations to reflect that from 1 February 2019 Ms Welbeck had a percentage of care of the child of 25% and Mr Welbeck had a percentage of care of 0%.

   27 June 2019

   In a discussion with the Department about  a range of issues, Mr Welbeck advised that he disagreed with the care decision (of 29 May 2019) because he did not believe Ms Welbeck had any care of the child, the child was living independently, and he was providing the child with financial support. It was recorded that Mr Welbeck would need to object to the decision, and that he intended doing so.

   10 July 2019

   Mr Welbeck contacted and advised that from 7 January 2019 the child was not living with Ms Welbeck and had been living independently, initially in [Town 1] with Ms Welbeck’s boyfriend and then [in Region 1]. This was recorded as a change in the care of the child. As the earlier change of care was for the same period, it was recorded as a change in care from 27 May 2019, when Mr Welbeck said the child left the care of Ms Welbeck’s boyfriend. It was recorded that the child had advised Mr Welbeck that he had made a successful claim for youth allowance on the basis that he was independent.

   25 July 2019

   The Department made a decision to revoke the existing percentage of care determinations and make new percentage of care determinations to reflect that from 27 May 2019 Ms Welbeck had a percentage of care of the child of 0% and Mr Welbeck had a percentage of care of 0%.

   30 July 2019

   Ms Welbeck contacted the Department online about the change in the care. She advised that she had 100% of the overall care of the child from 23 January 2019.

   31 July 2019

   The Department contacted Ms Welbeck and it was recorded that she objected to the decision of 29 May 2019 to record her care of the child as 25% from 1 February 2019. She advised that “[the child] is still in her care and she still makes decisions for [the child’s] welfare and supports him financially. … [The child] wished to complete a [college] course that wasn’t available where they lived, therefore it was arranged for [the child] to stay with his friend’s family while he attends [the college], and he comes home for weekends and holidays. [Ms Welbeck] advised she enrolled [the child] in the [college] course; paid his fees; pays [the child’s] board; and deposits spending money to his bank account. [Ms Welbeck] advised that she was told that if [the child] was only home on weekends and holidays this changed her care to 25% - but this was incorrect as she still has care of [the child] even while he is staying with friends”.

   13 August 2019

   Mr Welbeck contacted in relation to the unexpected increase in his overall child support liability (for the two younger children) following the end of the liability for the older child, as a result of the decision made on 25 July 2019.

   The Department also discussed Ms Welbeck’s objection to the care decision with Mr Welbeck.  He advised that he did not have any contact with the child for a period of more than six months until late June or early July 2019, when the child contacted because he needed money. As a result of this contact with the child he became aware that the child was not living with Ms Welbeck; he was living with her boyfriend in [Town 1] for a period in January 2019, and was attending high school there until he moved to a friend’s home [in Region 1] so he could attend [college]. Mr Welbeck advised that he had deposited money for the child to the account of friends on 8 June 2019 ($100), 18 June 2019 ($100), 23 July 2019 ($50) and had given him cash ($80) on 1 August 2019. The child stayed with him overnight on 31 July 2019 and would stay again on the nights of 14 and 15 August 2019. On the previous day (12 August 2019) he purchased a new phone for the child ($800) and had added his ongoing phone bill of $50 per month to his own account, which he expects to continue paying on an ongoing basis.

   10 September 2019

   Ms Welbeck submitted a bank statement and letter via myGov. She advised that the bank statement was for an account in her name, which was used exclusively by the child. During the 30 day period of the statement she had given the child $1,885, for everyday living expenses, including food, petrol, outgoings and for payment of rent to [Friend A].

The notification of a change in care by Ms Welbeck on 4 March 2019

1. As set out above, it was Ms Welbeck’s evidence that she was in contact with the Child Support Agency and Centrelink about the arrangements for the child’s care in early 2019 and as a result of the advice she received, notified that her care of the child had reduced to 25% from 2 February 2019. This was on the basis that the child would be physically in her care during [college] vacation periods and weekends, but would otherwise be living elsewhere. The tribunal accepted, however, that throughout the first half of 2019 Ms Welbeck continued to be responsible for the overall financial support and welfare of the child, as discussed above. In the circumstances the tribunal decided not to revoke the existing percentage of care determinations for the child, which reflect that Ms Welbeck had a percentage of care of 100% and Mr Welbeck had a percentage of care of 0%.

2. The tribunal considered the date of effect of the decision not to revoke the percentage of care determinations.

3. An objection to a care percentage decision does not have to be lodged within the usual 28 days that apply to other child support decisions. However, if it is lodged outside the 28 days and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the Registration and Collection Act).

4. The Registrar may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) that subsection 87AA(1) applies as if the reference to 28 days (90 days for residents of an overseas jurisdiction) were a reference to such longer period as the Registrar determines to be appropriate.

5. Ms Welbeck’s objection to the decision made on 29 May 2019 was lodged on 31 July 2019. On 10 September 2019 the Department recorded that Ms Welbeck stated that she did not object sooner because she did not receive the notice of the original care decision. At the hearing, however, Ms Welbeck indicated that she initially believed the decision, which was made in accordance with her notification, was correct, but she subsequently became aware that she could continue to be assessed as having care of the child while he was living elsewhere.

6. The tribunal considered whether Ms Welbeck was given incorrect advice which she relied on, amounting to a special circumstance preventing her from lodging her objection sooner. It concluded that there is insufficient evidence on which to come to such a conclusion. Although Ms Welbeck was apparently advised (by Centrelink or the Child Support Agency) that her percentage of care amounted to 25%, this may well have been reasonable based on the information given at the time. There is no evidence before the tribunal that Ms Welbeck was advice that was, on its face, incorrect.

7. Having regard to the particular circumstances of the case, including the evidence of Ms Welbeck at the hearing, the tribunal concluded that Ms Welbeck’s circumstances are not special circumstances which prevented her lodging the objection to the decision of 29 May 2019 within 28 days. The tribunal decided, therefore, that the date of effect of the care decision is 31 July 2019, in accordance with section 87AA of the Registration and Collection Act.

The notification of a change in care by Mr Welbeck on 10 July 2019

1. It was Mr Welbeck’s evidence that he was not in contact with the child for a period of about six months, until June 2019. He said his notification of a change of care, to reflect that neither parent had any care of the child from 7 January 2019, was on the basis of that the child stated he was living ‘independently’ with friends.

2. As noted above, the tribunal concluded that in the first half of 2019 Ms Welbeck continued to have a percentage of care of the child of 100%. The evidence shows, however, that in the second half of the year Mr Welbeck resumed contact with the child, and was contributing to his financial support, as well as supporting the child in relation to his health care and education/work. Mr Welbeck said he and Ms Welbeck were in contact about sharing the financial support of the child and motivating him in relation to getting work or studying. Ms Welbeck did not dispute that this was the case, but it was evident that the parties had not discussed the extent of the financial support each would provide, so that each appeared to have underestimated the support the other was providing.

3. The tribunal was satisfied that following the resumption of his contact with the child in June 2019, Mr Welbeck initially contributed to the child’s financial support on an ad hoc basis, although the parties agreed that from about November 2019 Mr Welbeck’s role in the care of the child, including but not limited to his increased financial contribution, was more active. The tribunal concluded, however, that at the date of the notification of a change in the care, on 10 July 2019, the ad hoc payments made by Mr Welbeck to the child did not amount to a change in the pattern of the care. While such a change may have crystallised in the following months, any subsequent changes in the care are not before the tribunal. In the circumstances the tribunal decided not to revoke the existing percentage of care determinations.

1. The tribunal notes that it is open to the parties to notify of a subsequent change in the care.

DECISION

The tribunal decided to:

• set aside the decision to revoke the existing percentage of care determinations from 1 February 2019 and substitutes its decision not to revoke the existing percentage of care determinations. The date of effect of the decision is 31 July 2019.

• set aside the decision to revoke the existing percentage of care determinations from 27 May 2019 and substitutes its decision not to revoke the existing percentage of care determinations.