Whitley and Cooke (Child support)

[2019] AATA 4346

Whitley and Cooke (Child support) [2019] AATA 4346 (2 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016713

APPLICANT:  Mr Whitley

OTHER PARTIES:  Child Support Registrar

Ms Cooke

TRIBUNAL:Member P Sperling

DECISION DATE:  02 September 2019

DIRECTION TO ALTER DECISION OR REASONS FOR DECISION:

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the following alteration is made to the decision:

The date in the decision is altered to read:

25 February 2019.

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016713

APPLICANT:  Mr Whitley

OTHER PARTIES:  Child Support Registrar

Ms Cooke

TRIBUNAL:Member P Sperling

DECISION DATE:  2 September 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Ms Cooke has a percentage of care of 0% for [Child 1] and Mr Whitley has a percentage of care of 0% for [Child 1] from 25 February 2015.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether a child support terminating event had occurred – neither parent had a 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.Mr Whitley and Ms Cooke are the parents of [Child 1] (the child). Mr Whitley is the parent liable to pay child support.

2.The Department of Human Services – Child Support (the Department) had determined that from 25 July 2015, with effect from 13 November 2015, Ms Cooke had a percentage of care of 100% for the child and Mr Whitley had a percentage of care of 0%.

3.On 10 January 2019 Mr Whitley notified the Department that the care of the child had changed. Mr Whitley stated that the child was in third party care due to a court order from [November 2018] and therefore was not in Ms Cooke’s care.

4.On 7 March 2019 the Department decided to change the care determination to show that that Ms Cooke had 0% care for the child and Mr Whitley had 0% care for the child from 25 February 2019.

5.Ms Cooke disagreed with the decision and lodged an objection to the decision of the Department on 12 March 2019. On 6 June 2019, an objections officer allowed Ms Cooke’s objection and determined that the assessment for the child would continue to reflect the previous assessment, that is, that Ms Cooke continued to provide 100% care for the child from 25 February 2019.

6.On 12 March 2019 Mr Whitley lodged an application to this tribunal for a review of the decision. The hearing took place on 2 September 2019. Mr Whitley attended the hearing in person and Ms Cooke spoke to the tribunal via conference telephone. Both parties gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department, which were also sent to Mr Whitley and Ms Cooke. Additional information provided by the parties to the tribunal (A1 to A75 from Mr Whitley and B1 to B2 from Ms Cooke) was also exchanged.

CONSIDERATION

7.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

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

8.Mr Whitley told the Department that, from November 2018 the child was not in Ms Cooke’s care because she had been removed by the Department of Health and Human Services Victoria (DHHS Victoria) and from this time all of the child’s care was being funded by the state government.

9.He advised the Department that he usually contacts the child three times a week and remains in contact with the carer of the out of home care facility that she is living in. He noted that Ms Cooke had a similar level of contact with the child and her carers. He also advised the Department that all of the child’s costs are being funded by the government and therefore he doesn’t see why he should be paying child support when Ms Cooke hasn’t been incurring expenses in respect of the child’s care.

10.During the hearing Mr Whitley told the tribunal that the care of the child changed from sometime in November or December 2018 when DHHS Victoria took the child into an out of home care facility because of her health and behaviour. He said that the child was unable to live with either parent at the time and hasn’t been in the care of either parent since then.

11.As part of the Department’s review of this matter, Ms Cooke told the Department that even though the child moved into an out of home care facility in February 2019, DHHS Victoria still consulted her regularly regarding the child. She advised that the only reason that the child was not living with her was because of the child’s [medical condition] and ongoing violence by the child towards Ms Cooke.

12.During the hearing Ms Cooke told the tribunal that the child was in and out of an inpatient mental health unit at the end of 2018.  Once the child returned home Ms Cooke was getting 24/7 on-call therapeutic support from [Health Service Provider 1] between November 2018 and January 2019. She said that from January 2019 the funding for this 24/7 on-call support from [Health Service Provider 1] ran out and Ms Cooke was given 9am to 5pm weekday support through [Health Service Provider 2]. However, the child’s behaviour deteriorated and Ms Cooke was increasingly unable to manage. Ms Cooke said that, as a result of this situation, from 25 February 2019 the child was placed into an out of home care facility, [Facility 1], by DHHS Victoria on a full time basis. Ms Cooke maintained that, even after this placement commenced, she continued to have 100% care of the child.

13.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to the child be revoked?

14.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children.

15.Mr Whitley notified the Department on 10 January 2019 that care arrangements for the child had changed. The Department proceeded to investigate this claim and was advised of various temporary care arrangements for the child from December 2018 to February 2019 including hospitalisation and temporary out of home care placement prior to consideration by the court on 25 February 2019.  The tribunal is satisfied that the various temporary arrangements for the medical care and behavioural management of the child prior to 25 February 2019 did not constitute a change in the pattern of care as required under section 50 of the Act.

16.The tribunal then considered the interim court order made on 25 February 2019 under which the child was placed in an out of home care facility and the matter was adjourned to 25 March 2019. On the basis of this court order the tribunal is satisfied that the child was subject to a court order which placed her in out of home care from 25 February 2019 until at least 25 March 2019, a period the tribunal considers is sufficiently long to be considered a change in the pattern of care under section 50 of the Act.

17.Both Mr Whitley and Ms Cooke confirmed that the child was physically living in an out of home care facility under an interim court order from 25 February 2019. However, they disputed what, if any, responsibility for and care of the child either parent had from this date because of the involvement of DHHS Victoria.

18.In this matter Ms Cooke maintains that the child remained in her 100% care while she was living in an out of home care facility, as provided for in the interim court order, from 25 February 2019.

19.In considering this matter, the tribunal took into account the Department’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide)[1] which states that where there is doubt about whether care is being provided the Registrar will consider whichever of the following are relevant to the particular case:

1.The Child Support Guide (the Guide) is the government policy adopted by the Department that applies to the interpretation and application of the child support legislation. Generally, the tribunal will follow the Guide unless there is a cogent reason not to do so. There are no circumstances in this matter that would require the Guide to be disregarded.

·to what extent the person has control of the child, including having overall responsibility for the child and making:

omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities; and

oarrangements 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; and

·to what extent the child is financially independent or financially supported from another source.

20.Mr Whitley maintained that from 25 February 2019, when the child was placed in an out of home care facility under an interim accommodation order, both parents have been providing similar financial and emotional support and that neither parent has incurred significant expenses in respect of the child.

21.He said that, from the end of 2018 when the child went into care, all of the costs of the child were paid for by DHHS Victoria, including food, accommodation, school costs, extracurricular and all other costs. He said that since the child has been in care, both he and Ms Cooke paid for some minimal out of pocket expenses, including the cost of some outings, food, clothes, shoes and a Chromecast for her computer. He said that Ms Cooke paid for the same minimal expenses, however he also acknowledged during the hearing that he didn’t know exactly what Ms Cooke paid for and assumed that it was similar to his financial contribution.

22.Mr Whitley told the tribunal that he has been involved in the child’s care with DHHS Victoria since she was first taken into care in February 2019 and that DHHS child protection workers contact him weekly to discuss her progress, inform him of incidents or issues and agree on behavioural strategies to address concerns. Notwithstanding this, Mr Whitley maintained that DHHS Victoria made all of the relevant decisions regarding the child’s schooling and other decisions in relation to the child’s care and needs.

23.Mr Whitley also noted that he has contributed more than the minimum level of child support for the last few years and that, on this basis, any additional expenses that Ms Cooke might have covered for the child have actually been jointly funded with him as a result of these additional child support contributions.

24.Prior to the hearing Mr Whitley provided the tribunal with additional documents[2] including applications for variation of court orders, court minutes granting extensions to interim court orders, adjournment records, court imposed conditions regarding contact between the child and the parents while the child was in an out of home care facility, care team meeting records and an unsigned and undated application for emergency care. The tribunal notes that these documents related to the period subsequent to the period under consideration. Mr Whitley’s additional documents also contained a signed letter from a DHHS Victoria child protection practitioner dated [in] June 2019 which states that the child is currently subject to a Children’s Court Order and has been in out of out of home care since 7 February 2019 residing in multiple placements. The letter also states the following:

Since this date, DHHS have provided funding and accommodation for the child with the mother, Ms Cooke providing minimal daily expenses. Currently DHHS provides financial assistance for the child’s placement, residential care staffing, transports, schooling medical appointments and extra-curricular activities as well as daily expenses including food and clothing. Both Ms Cooke and Mr Whitley have provided minimal expenses for the child since she resided in out of home care.

[2] Additional submissions A1 to A75

25.The letter also notes that, at the date of writing, Mr Whitley has contact with the child once every fortnight and Ms Cooke has contact with the child three times per week.

26.During the hearing Ms Cooke maintained that she continued to have legal responsibility for the child after 25 February 2019 on the basis that she had previous legal responsibility for the child and Mr Whitley had not been involved in the child’s day to day life prior to this date. She said that she was still financially, emotionally and physically supporting the child once the child went into an out of home care facility, although she acknowledged that DHHS Victoria was meeting some of the child’s costs. She said that Mr Whitley was not providing any financial or emotional support for the child but that DHHS Victoria legally had to keep him informed of matters related to the child. She also advised that the orders made on 25 February 2019 were interim orders only, subject to further review on 25 March 2019, and that the intention was that the child would be transitioned back into her care over the course of the next year. Ms Cooke maintained that she remained the child’s primary carer and, when the child went into an out of home care facility, was still seeing her five times a week. Ms Cooke also stated that she continued to provide anything else the child needed.

27.When asked, Ms Cooke clarified that after 25 February 2019 she initially saw the child every day or every second day and went with her to all medical and dental appointments with [Facility 1] staff. She said that sometime in early March 2019 the child was moved into a new out of home care facility at [Suburb 1] and at that time DHHS Victoria and the out of home care staff at the new service decided that it was in the best interests of the child to have more restricted visitation with her parents and Ms Cooke’s visits reduced to three times per week plus phone calls.

28.In terms of schooling, Ms Cooke said that at the beginning of 2019, just before the child went into an out of home care facility, she enrolled the child into a new high school to cater for her individual needs. She said that some time in February 2019 she attended an orientation day visit to the school with the child which went badly. Ms Cooke said that after the orientation day at the school the child had to be readmitted to hospital for further treatment. Notwithstanding this, Ms Cooke said that she had been involved in all of the decisions and arrangements about the child’s schooling prior to 25 February 2019. She also confirmed that, once the child moved into the [Facility 1] service, it was DHHS Victoria and the [Facility 1] staff who made the decision that the child would not go to school for the rest of first term 2019, because she needed time to get used to her new living arrangements and stabilise her behaviour.

29.In terms of the expenses and funding that Ms Cooke provided, she drew attention to the receipts setting out the [dental] treatment she paid for from March 2019. Prior to the hearing Ms Cooke provided an additional submission (B1 to B2) which contained a letter from [Dr A], dentist, dated [in] July 2019, which states that Ms Cooke entered into an agreement for [dental] treatment for the child on 18 March 2019 and that she paid a deposit amount of $1,500 on 6 March 2019 and monthly payment of $250 on 13 May 2019 and 18 June 2019 as per her agreement. It also states that Ms Cooke’s agreement stipulates a minimum of 16 monthly payments of $250 to continue as the child’s treatment progresses.

30.During the hearing Ms Cooke also advised that she continued to pay for a particular off-schedule medication that the child required until DHHS Victoria agreed to cover the costs but acknowledged that all other medical costs were covered by DHHS Victoria. Ms Cooke also confirmed that DHHS Victoria covered the costs of respite camps and other extracurricular activities that the child was involved in from 25 February 2019. However she noted that she paid for some specific items of clothing and other personal items which were misplaced when the child moved between out of home care placements. Ms Cooke acknowledged that she was unaware of what, if any, financial contributions Mr Whitley has been making other than the purchase of some clothes for the child’s birthday.

31.Finally, Ms Cooke stated that she has been involved in all decisions regarding the child’s NDIS plan and was involved in the development of the child’s NDIS plan in November 2018 as well as the more recent review of the NDIS plan in August 2019.

32.In addition to the evidence from Mr Whitley and Ms Cooke the tribunal considered the letter of 13 March 2019 from [Health Service Provider 2] (page 119) provided by Ms Cooke which, in summary, states that Ms Cooke has contact with the child every day, is in contact with the out of home care facility staff, provides for the child’s well-being and remains the child’s primary carer.

33.The tribunal also took into account two letters from the same DHHS Victoria child protection practitioner. The letter of 22 March 2019 (page 147) states that Ms Cooke continues to financially support the child and has daily contact and provides financial assistance and supports her emotionally. This is not consistent with the advice in the letter [in] June 2019 as discussed in paragraph 24 of these Reasons.  

34.Ms Cooke explained that the two DHHS Victoria letters provided different advice because in the first few weeks, when the child was placed with [Facility 1], Ms Cooke had more involvement and access to the child but when the child moved to the [Suburb 1] out of home care facility, access and interaction with Ms Cooke was restricted as part of a revised behaviour management plan for the child.

35.The tribunal notes that both parents continued to have ongoing interaction with the child and were involved in the child’s welfare and Ms Cooke has been funding the child’s [dental] treatment. However, the tribunal is satisfied on the basis of the available evidence that DHHS Victoria was responsible for major decisions related to the child, provided the care and supervision for the child and funded the vast majority of the child’s expenses, including the child’s day to day living expenses, once the child was placed in an out of home care facility under the interim court order on 25 February 2019. Accordingly, the tribunal determines that Ms Cooke had 0% care and Mr Whitley had 0% care of the child from 25 February 2019.

36.The Act also requires that there would be a change in the cost percentage if another percentage of care were determined for Mr Whitley under section 50 of the Act. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of a child, the tribunal must determine the care during the care period. “Actual care” may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1) of the Act).

37.The tribunal is required to consider what the actual care Mr Whitley and Ms Cooke have had or are likely to have of the child during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act).  The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate in this matter. 

38.In this case the tribunal determines that care of the child was as stated in the court orders made on 25 February 2019 and determines that the change in care should be assessed commencing 25 February 2019 for the reasons set out in paragraphs 15 and 16 above.

39.As the tribunal has concluded that Mr Whitley’s and Ms Cooke’s care percentages were not the same as their previously determined care percentages and their cost percentages would change if new determinations were to be made, paragraph 54F(1)(d) of the Act is satisfied and as section 54G does not apply (paragraph 54F(1)(e)), the tribunal must revoke the existing determinations of percentages of care from 24 February 2019, the day before the change of care occurred and make a new determination of care from 25 February 2019.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Ms Cooke has a percentage of care of 0% for the child and Mr Whitley has a percentage of care of 0% for the child from 25 February 2019.