Wight and Burman (Child support)

[2022] AATA 3682

Wight and Burman (Child support) [2022] AATA 3682 (8 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC023722

APPLICANT:  Mr Wight

OTHER PARTIES:  Child Support Registrar

Ms Burman

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  08 September 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care for [Child 1], [Child 2] and [Child 3] from 18 October 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review set aside and sent back with direction about date of effect

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. This review is about the percentage of care determinations for Mr Wight and Ms Burman in respect of their children [Child 1] (born December 2011), [Child 2] (born December 2014) and [Child 3] (born December 2014).  There has been a child support assessment in place since 21 September 2021 and Mr Wight is the liable parent.

2. From 24 June 2021 the child support assessment reflected Mr Wight as having 0 per cent care and Ms Burman as having 100 per cent care of [Child 1], [Child 2] and [Child 3].  This was the level of care recorded when the assessment commenced on 21 September 2021[1].

   [1] On 8 September 2022, in a separate decision, the Tribunal set aside the level of care recorded when the child support assessment commenced on 21 September 2021.

3. On 18 October 2021 Ms Burman notified the Child Support Agency of a change to the care arrangements stating that she had 72 per cent care and Mr Wight had 28 per cent care of the children from 18 October 2021.

4. On 13 November 2021 the Child Support Agency made the decision to reflect that Mr Wight provides 28 per cent care and Ms Burman provides 72 per cent care of [Child 1], [Child 2] and [Child 3] from 18 October 2021.

5. On 18 February 2022 Mr Wight objected to this decision and on 31 March 2022 the Child Support Agency disallowed the objection (the objection decision).

6. On 20 April 2022 Mr Wight applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 7 July 2022.  Mr Wight and Ms Burman gave evidence on affirmation by Microsoft Teams audio.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (109 pages).  The Tribunal received additional information from Ms Burman prior to the hearing and copies were distributed to the parties (B1–B11).

8. At hearing Mr Wight said he had only just received the papers from the Child Support Agency.  Ms Burman said she had not received the papers but was happy to proceed.  The Tribunal agreed to allow Mr Wight and Ms Burman additional time to review the papers from the Child Support Agency and provide further written comments.  These were received from Mr Wight on 15 July 2022 (A1–A8) and from Ms Burman on 11 July 2022 (B12–B29).  Copies of this additional information was sent to the parents for consideration and additional comments were then received from Mr Wight on 3 August 2022 (A9–A10).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1], [Child 2] and [Child 3] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Wight told the Tribunal that as far as he was concerned his care of [Child 1], [Child 2] and [Child 3] had not changed since the child support assessment commenced.  Mr Wight said he was living with the children in the family home and he had 100 per cent care until he went away for work for two weeks from 20 November 2021.

2. Mr Wight said he could not understand why Ms Burman was claiming care had changed from 18 October 2021 because at that time nothing was different.  Mr Wight explained that after the parents had separated Ms Burman stayed at the home of a friend and later she rented a room not far from the family home.  Mr Wight said each day before he went to work around 6:00 am Ms Burman would come to the family home to organise breakfast and get the children ready for school.  Mr Wight said Ms Burman would ensure the children got to school but he would almost always leave work early, around 2:30 pm, to pick them up and then take them home.

3. Mr Wight said once he got home Ms Burman would usually leave immediately and he would then prepare dinner and get the children ready for bed.  Mr Wight said sometimes Ms Burman would remain to help with the children and occasionally she stayed overnight.

4. The Tribunal notes in evidence from Mr Wight a letter from his employer, [named], dated 27 March 2022 which states that “from July 2021 to August 2021” Mr Wight would leave work early to pick up the children from school.

5. Mr Wight told the Tribunal this pattern of care remained in place until his role at work changed and he went away from 20 November 2021 but this was only for two weeks.  He then returned to the family home for five days before travelling away for another two-week swing in mid-December 2022.  Mr Wight said from separation he continued to pay most of the household bills as well as the mortgage on the family home and this did not change until February 2022 when he moved out.  Mr Wight added that Ms Burman also had access to his bank account and was using this to pay various bills including expenses for the children.

6. The Tribunal notes in evidence provided by Mr Wight an undated letter from [Cousin A], his cousin, in relation to care of the children.  [Cousin A] states that Mr Wight and the children had a sleepover at her home on 2 October 2021 and she had been to see Mr Wight a few times since.  [Cousin A] states Mr Wight “was the one in the home, caring for the boys”.

7. Ms Burman told the Tribunal that after the parents separated on 24 July 2021 she did leave the family home briefly but then returned and was there for most of the time.  She said Mr Wight was also living at the family home but sometimes went away to stay overnight with various friends.  Ms Burman argued that it was she who had 100 per cent care of the children until 18 October 2021 as she remained the primary carer.

8. Ms Burman said she asked Mr Wight to leave the family home and he refused so she ended up renting a room close to the family home.  Ms Burman explained that none of her belongings were at the room and she only stayed there when the situation with Mr Wight became too toxic.  Ms Burman could not recall precisely how often she stayed at the rented room but thought it might have been two nights a week at most.  Ms Burman said nonetheless she continued to do everything for the children including getting them ready for school, preparing all the meals and keeping the house clean.  Ms Burman pointed out that even when she would leave the family home it was only after the children were in bed and she would always return in the morning just before Mr Wight went to work.

9. Ms Burman said despite this pattern of care remaining largely unchanged she decided to inform the Child Support Agency of a change in care on 18 October 2021 because she felt it was fair to reflect the actual care that was taking place at the time.  Ms Burman said, if anything, she was leaving the family home more often to get away from Mr Wight when he was abusive.  Ms Burman reiterated that her routine nonetheless remained the same.

10. Ms Burman pointed out that although Mr Wight had told his employer he needed to leave work early to pick up the children from school he often went drinking with friends instead.  Ms Burman said she was then left to pick up the children at the last minute.  Ms Burman said she had provided a letter from a mutual friend confirming this was the case.

11. The Tribunal notes in evidence a letter from [Friend A] dated 13 June 2022.  It states, relevantly, that “during the period between July 2021 to December 2021 [Mr Wight] would quite often come over to my house…where we would have a few beers.  Sometimes he would tell his boss he had to leave work early to do the school pick up but would come to my house instead where we would have beers and he would end up sleeping on my couch”.  The letter goes on to state that Ms Burman “was at the house every day for the kids” and “paid for everything since [Mr Wight] became unemployed”.

12. Ms Burman acknowledged that Mr Wight continued to pay some bills during this time as well as the mortgage on the family home, however, by Christmas 2021 this had stopped.  Ms Burman said she was forced to apply for early access to her superannuation in February 2022 to cover an amount of approximately $4,000 due on the mortgage.  Ms Burman said Mr Wight had lost his job around Christmas 2021 and by then she was paying whatever she could with the money she had.

13. The Tribunal further notes in evidence from Ms Burman a third-party statement from [Ms A] dated 14 March 2022.  [Ms A] is godmother to the children and states she was aware that following separation Ms Burman would stay at another house on occasion.  [Ms A] also states that Ms Burman would return to the house before Mr Wight left for work to prepare breakfast, fix their lunches, get them ready for school and take them to school before returning to carry out household duties.  [Ms A] goes on to state that Ms Burman would also pick the children up from school, cook dinner and get them ready for bed and leave the family home if the situation was volatile.

14. Ms Burman told the Tribunal as she had access she did sometimes transfer money from Mr Wight’s bank account to pay for household bills.  Ms Burman reiterated that she was paying most of the bills by Christmas 2021 which was difficult given she was not working and in receipt of government benefits.  Ms Burman said she had provided the Tribunal with evidence of the costs she was meeting including school expenses.  Ms Burman said that due to his abusive behaviour Mr Wight was forced to leave the family home on 8 February 2022 and she ended the child support case from 21 February 2022 because she did not want to be financially dependent upon him in any way.

15. The Tribunal notes in evidence invoices from [Business 1] provided by Ms Burman for various school-related costs in December 2021 and January 2022.

16. Mr Wight has argued that around the time the child support assessment commenced he had 100 per cent care of the children and this did not change until he went away for work on 20 November 2021.  Mr Wight submits there was no change in the pattern of care on 18 October 2021.  Ms Burman has told the Tribunal she was still staying most nights at the family home and sometimes stayed around two nights a week at a rented room.  Ms Burman has also said she nonetheless continued to be the primary carer and prepared all the meals as well as undertaking most of the housework.  Ms Burman has pointed out that although this routine remained largely unchanged she felt it fair to tell the Child Support Agency that she was leaving the family home on occasions and staying elsewhere.  Both parents have provided third-party statements in support of their respective positions.

17. In light of the evidence provided, the Tribunal considers that when Ms Burman notified the Child Support Agency of a change in the pattern of care the parents were separated but effectively living under one roof.  In such circumstances it can be difficult to determine the exact level of care each parent is providing for the children.  The Child Support Guide, at 2.2.1, offers the following relevant guidance:

    Where parents are separated but living in the same house, the Registrar will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

18. The term ‘care’ is not defined in the legislation.  The Federal Magistrates Court of Australia, in Polec & Staker & Anor[2], discusses the meaning of ‘care’ in detail including the factors that should be taken into account when deciding if a person is providing care for a child. These are:

    ·     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

    ·     to what extent does the person make arrangements for others to meet the needs of the child

    ·     to what extent does the person pay for the costs of meeting the needs of the child

    ·     to what extent does the person otherwise provide financial support to the child

    ·     to what extent does the child provide for his or her own needs or have those needs met from another source

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

    [2] Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959

19. While Ms Burman may not have stayed every night at the family home she nonetheless continued to provide ongoing care for the children.  The evidence indicates that Ms Burman was either at the family home or returned home each day to care for the children, prepare meals and support them emotionally.  Ms Burman also did school drop-offs every day and was very likely doing some school pick-ups.   The Tribunal is also satisfied that Ms Burman was making some financial contribution towards costs for the children.  Mr Wight was meeting the majority of the costs for the children and paying for the mortgage on the family home.  This does not appear to be in dispute and Ms Burman has said it was around December 2021 that she began paying most of the bills.  The Tribunal also considers that Mr Wight was assisting with the day-to-day care of the children to an extent by doing some school pick-ups and helping at home in the evening.

20. The Tribunal finds that both Mr Wight and Ms Burman were providing significant care of [Child 1], [Child 2] and [Child 3] with each parent contributing in different ways.  Although it is not possible to quantify precisely the level of care provided by each parent, based on the evidence provided, the Tribunal considers it appropriate to determine that Mr Wight and Ms Burman contributed equally to the care of the children.

21. The Tribunal therefore finds that Mr Wight provides 50 per cent care and Ms Burman provides 50 per cent care of [Child 1], [Child 2] and [Child 3] from 18 October 2021.

22. On 8 September 2022, in a separate decision, the Tribunal set aside the level of care recorded when the child support assessment commenced and, in substitution, decided that Mr Wight provides 50 per cent care of the children and Ms Burman provides 50 per cent care from 21 September 2021.

23. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences.  On the basis the existing pattern of care was 50 per cent care to Mr Wight and 50 per cent care to Ms Burman (in accordance with the decision made on 8 September 2022), the Tribunal is unable to find, based on the evidence provided, there was a change to the pattern of care for [Child 1], [Child 2] and [Child 3] from 18 October 2021.

24. On 18 February 2022 Mr Wight objected to the original care decision made by the Child Support Agency on 13 November 2021.  His objection was disallowed.  According to the evidence provided, Mr Wight submitted his objection outside the required 28-day timeframe.

25. As this decision made by the Tribunal will apply in substitution of the objection decision made by the Child Support Agency the date of effect of the Tribunal decision is in accordance with subsection 87AA(1) of the R&C Act being 18 February 2022 when Mr Wight objected to the original care decision. The Child Support Agency may, under certain circumstances, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days was a reference to such longer period as determined to be appropriate. To do so requires the Child Support Agency to make an original decision which the Tribunal is unable to make in the current proceedings.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care for [Child 1], [Child 2] and [Child 3] from 18 October 2021.