Wodefold and Gilliam (Child support)

[2024] AATA 3238

Wodefold and Gilliam (Child support) [2024] AATA 3238 (18 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/MC027869

APPLICANT:  Mr Wodefold

OTHER PARTIES:  Child Support Registrar

Ms Gilliam

TRIBUNAL:Member K Hamilton

DECISION DATE:  18 July 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – percentage of care – no legal agreement or orders – no objection made at the time, and passage of time since – inconsistencies in dates – later change of care not part of application – 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 Wodefold and Ms Gilliam are the parents of [the child] (born 2008). 

2. From 29 July 2018, Ms Gilliam was recorded for child support purposes as having 100% care of [the child].

3. On 17 January 2024, Mr Wodefold advised Services Australia – Child Support (Child Support) that he had 100% care of [the child] from 1 August 2018.

4. On 2 February 2024, Child Support made a decision to record care of [the child] as 100% to Mr Wodefold, from 1 August 2018.

5. On 12 February 2024, Ms Gilliam objected to this decision.  Ms Gilliam said that [the child] had remained 100% in her care until December 2023, when she returned to Mr Wodefold’s care.

6. On 12 April 2024, Child Support allowed Ms Gilliam’s objection, and refused to record care of [the child] as 100% to Mr Wodefold from 1 August 2018.  Mr Wodefold then applied to this Tribunal for independent review.

7. I heard the matter on 18 July 2024.  Mr Wodefold and Ms Gilliam both participated by telephone and gave evidence.  The Tribunal had regard to the following documents:

   ·relevant documents produced by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, numbered as pages 1–409; and

   ·additional documents submitted by Mr Wodefold, numbered A1–A8.

ISSUES

1. The legislative provisions relevant to this application are contained in the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 (the Assessment Act).

2. Care decisions are made pursuant to the Assessment Act. If a person applies for an administrative assessment of child support and has had, or is likely to have, a pattern of care for the child during the relevant care period, then the decision-maker must determine that parent’s percentage of care for the child during the care period: section 50 of the Assessment Act.

3. If a responsible person who was to have at least regular care of a child during a care period (at least 14% care) under a care determination made under section 50, had no care of the child, or a pattern of care that was less than regular care of the child, the care determination must be revoked and a new determination made: section 54G in Division 4, Subdivision C of the Assessment Act.

4. The legislation requires that if a determination of a responsible person’s percentage of care is revoked under Division 4, Subdivision C, and the responsible person for the child has had, or is likely to have, no pattern of care for the child during a care period, their percentage of care must be determined to be 0%: section 49 of the Assessment Act.

5. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant.  The Guide reflects government policy as to how the legislation is to be applied.  The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs(No. 2) (1979) 2 ALD 634.

6. The issues which arise in this case are:

   ·      Was there a change in [the child]’s pattern of care from 1 August 2018? If so,

   ·      What are the new percentage of care determinations for Mr Wodefold and Ms Gilliam?

   ·      What is the date of revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations for Mr Wodefold and Ms Gilliam?

CONSIDERATION

1. Mr Wodefold told the Tribunal that he had [the child] 100% of the time up until the last quarter of 2018, when she went into Ms Gilliam’s care.  Mr Wodefold said that he had no say in this.  He said [the child] went for a visit with her grandmother who took her to Tasmania, where Ms Gilliam was then living.  Mr Wodefold said that he consulted a lawyer about regaining care of [the child] but was told that as there was no legal agreement or orders giving him full custody, there was nothing that he could do.

2. The additional documents provided by Mr Wodefold to the Tribunal include written statements provided by Mr Wodefold and 2 family friends.  Each of the statements indicate that [the child] was in Mr Wodefold’s care until late 2018 (variously identified as either October or November 2018) and that [the child] returned to Mr Wodefold’s care in October 2023.

3. Mr Wodefold’s additional documents also include records from [State School] and [Secondary College] providing address details from their enrolment records.  These documents do not assist the Tribunal to determine the care arrangements for [the child] from 1 August 2018 onwards.

4. Ms Gilliam told the Tribunal that [the child] and her sister came into her full-time care following a holiday in July 2018.  When the girls came into her care, she rang Child Support and advised that she had 100% care.  Child Support’s records show that Ms Gilliam notified on 13 August 2018 that [the child] was in her care from 29 July 2018.

5. Mr Wodefold was asked by the Tribunal, if he still had 100% care of [the child] as at 1 August 2018, why he did not object to the decision made by Child Support on 16 August 2018 that [the child] was 100% in Ms Gilliam’s care.  Mr Wodefold did not recall this notification and said that he had already tried unsuccessfully to get full custody of the children.

6. Although the statements provided by Mr Wodefold suggest that the change in care of [the child] occurred later in 2018, none of his evidence identifies a specific date on which the change in care occurred.  There are also some minor inconsistencies in the dates identified in statements provided by Mr Wodefold, with the date of the care change variously identified as October 2018 or November 2018.  These discrepancies are understandable having regard to the passage of time between the alleged change in care in 2018 and Mr Wodefold’s notification to Child Support in January 2024.   

7. However, I consider it more plausible that [the child] had gone into Ms Gilliam’s care from 29 July 2018, as this is consistent with Ms Gilliam’s contemporaneous notification to Child Support on 13 August 2018.  Mr Wodefold’s failure to object to the previous care decision made by Child Support following that notification, lends support to a finding that there had been no change in the care of [the child] between 29 July 2018 and 1 August 2018 and that [the child] remained 100% in Ms Gilliam’s care.

8. Accordingly, I am satisfied that there was no change in the care of [the child] from 1 August 2018.  As I have reached the same conclusion as the Child Support objections officer, the decision under review will be affirmed.

9. I note that there was broad agreement between the parties that [the child] had returned to Mr Wodefold’s care in late 2023 (although Mr Wodefold said this occurred in October 2023 and Ms Gilliam said this occurred in December 2023).  Any subsequent change is not before the Tribunal in relation to this application for review.  It is open to Mr Wodefold to follow up with Child Support to ensure [the child]’s current care arrangements are correctly recorded and whether his contact in January 2024 can be treated as a notification of that subsequent change in care.

DECISION

The decision under review is affirmed.