Wreyford and Squair (Child support)

[2024] AATA 2901

Wreyford and Squair (Child support) [2024] AATA 2901 (27 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027694

APPLICANT:  Mr Wreyford

OTHER PARTIES:  Child Support Registrar

Ms Squair

TRIBUNAL:Member K Hamilton

DECISION DATE:  27 June 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides in relation to the child that:

• the existing percentage of care determination of 100% to Ms Squair is revoked from 9 December 2022 and a new percentage of care determination of 0% to Ms Squair applies from 10 December 2022; and

• the existing percentage of care determination of 0% to Mr Wreyford is revoked from 25 January 2023 and a new percentage of care determination of 100% to Mr Wreyford applies from 26 January 2023.

The Tribunal decides not to make a determination pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988.  The date of effect of the decision is 25 March 2024.

CATCHWORDS
CHILD SUPPORT – percentage of care – change in care – existing percentage of care determinations revoked – new determinations made – date of effect – 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 Wreyford and Ms Squair are the parents of one child, [Child 1] (born 2008).  Prior to 26 January 2023, Ms Squair was recorded for child support purposes as having 100% care and Mr Wreyford 0% care of [Child 1].

2. On 26 January 2023, Ms Squair advised Services Australia – Child Support (Child Support) that she had 79% care and Mr Wreyford 21% care of [Child 1] from 26 January 2023. 

3. On 28 March 2023, Child Support made a decision to record the care of [Child 1] as 79% to Ms Squair and 21% to Mr Wreyford.

4. Mr Wreyford objected to that decision on 15 May 2023.  On 20 October 2023 a Child Support objections officer disallowed his objection.  Mr Wreyford then applied to the Administrative Appeals Tribunal (the Tribunal) on 25 March 2024 for further review.

5. I heard the matter on 27 June 2024.  Mr Wreyford participated in the hearing by telephone and gave evidence under affirmation.  The Tribunal made multiple attempts to contact Ms Squair on the telephone number she provided to the Tribunal, without success.  As I was satisfied that Ms Squair had been given appropriate notice of the hearing and failed to appear at the hearing, the hearing proceeded in her absence.

6. At Mr Wreyford’s request, the Tribunal also took oral evidence under affirmation from [Ms A], a friend of Mr Wreyford.

ISSUES

1. The legislative provisions relevant to this application are contained in the Child Support (Registration and Collection) Act 1988 (the Act) 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, and a determination of the other responsible person’s percentage of care has been made under section 50, the care determination must be revoked and a new determination made: section 54G in Division 4, Subdivision C of the Assessment Act.

4. A responsible person’s existing percentage of care must be revoked if the actual care of the child does not correspond with the existing percentage of care and, if a new percentage of care were determined, the responsible person’s cost percentage would change, and where section 54G does not apply: section 54F in Division 4, Subdivision C of the Assessment Act.

5. 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.

6. If a determination of a responsible person’s percentage of care is revoked under Division 4, Subdivision C, and the responsible person has had, or is likely to have, a pattern of care during a care period, the responsible person’s percentage of care must be determined based on their actual care of the child during the care period: section 50 of the Assessment Act.

7. 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.

8. The issues which arise in this case are:

   ·      Was there a change in the child’s pattern of care? If so,

   ·      What are the new percentage of care determinations for Mr Wreyford and Ms Squair?

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

   ·      What is the date of effect of the decision?

CONSIDERATION

1. Mr Wreyford told the Tribunal that Ms Squair had the majority of care of [Child 1] until she was 11 years old, however Ms Squair has not had 100% care of [Child 1] for a number of years.  Mr Wreyford said that [Child 1] has been living with him almost exclusively for the last few years.  [Child 1] has little contact with Ms Squair and does not talk to her.

2. Mr Wreyford said that he has always just paid the amount of child support he was assessed to pay, without necessarily understanding the basis on which this assessment was made.  He said that it was not a large amount, so he just paid it.  However, he says that since January 2023 he has had a significant portion of his income taken to pay child support, and started to query why he was required to pay child support when he had care of [Child 1] the whole time and was being left with little take‑home pay to actually support her. 

3. Mr Wreyford said that he raised the issue of child support with Ms Squair when she was staying at his house in late 2022 (while Ms Squair was searching for new rental accommodation).  A friend had brought the child support app to his attention and when Mr Wreyford checked this and showed Ms Squair that she was recorded as having 100% care, he said that Ms Squair agreed that was not right and that she would call Child Support to fix it.

4. The care percentages that Child Support then recorded from 26 January 2023 appear to be based on care arrangements set out in consent orders from 2015.  However, Mr Wreyford said that those consent orders were never complied with and certainly did not accurately reflect the parties’ respective care of [Child 1] as at January 2023.

5. Mr Wreyford said that in around September 2022, Ms Squair had lost her rental property and was having difficulty finding alternate accommodation.  Mr Wreyford helped Ms Squair to clean up her old house and look for a new place.  Between September to November 2022, Ms Squair slept on the couch at Mr Wreyford’s house. 

6. Mr Wreyford disputed the statement provided by Ms Squair’ parents that Ms Squair lived with them and did not stay at Mr Wreyford’s house at all.  Mr Wreyford said that it was true that Ms Squair stayed with her parents, but they often fought and the majority of nights Ms Squair would “crash” at Mr Wreyford’s house. 

7. [Child 1] stayed a couple of nights with her grandparents while Ms Squair was looking for accommodation but did not like being there.  The rest of the time [Child 1] stayed in her own room at Mr Wreyford’s house. 

8. Mr Wreyford agreed that when Ms Squair left her previous rental, she did bring some of her food to Mr Wreyford’s house.  This was not required for [Child 1] but done simply to avoid waste.  Mr Wreyford agreed that Ms Squair would occasionally take [Child 1] to and from school, as Ms Squair worked at the same school, but the majority of the time [Child 1] would catch the train to school.

9. The Tribunal questioned Mr Wreyford about Child Support’s records which record that Mr Wreyford advised that care of [Child 1] had been 50/50 from February 2023.  Mr Wreyford said in this period he and Ms Squair were talking and he thought this would be a fair arrangement and would allow [Child 1] to choose who she wanted to stay with.  In February 2023 they tried a week-about arrangement, but this didn’t last the week with [Child 1] returning early from Ms Squair’ home. 

10. The Tribunal also questioned Mr Wreyford as to school records which showed that Ms Squair was the emergency contact for [Child 1] and that it was Ms Squair who was advised of [Child 1]’s suspension from school as the responsible parent.  Mr Wreyford said that Ms Squair works at the school [Child 1] attends and has a friend who works in the office.  Mr Wreyford has advised the school on multiple occasions that he is [Child 1]’s carer and requested his number be recorded as a point of contact.  He said that his numbers kept “disappearing” off the school system as Ms Squair and her friend would keep changing [Child 1]’s record every time he notified the school.

11. Mr Wreyford stated that following [Child 1]’s suspension she has not spent any time at Ms Squair’ home.

12. [Ms A]’s evidence to the Tribunal was that she was a work colleague of Mr Wreyford’s and became good friends with him.  She said that from September 2022, she would “hang out” at Mr Wreyford’s place most afternoons after work.  She got along well with [Child 1] and would see her at Mr Wreyford’s every day.  She commenced renting a room at Mr Wreyford’s house in December 2022 and has lived there continuously since that time.

13. [Ms A] confirmed that [Child 1] has lived at Mr Wreyford’s house full time since at least the time [Ms A] began living at Mr Wreyford’s house.  She also stated that there was a time after Ms Squair had secured a new rental that [Child 1] tried to spend some time with Ms Squair, but this didn’t last long and only occurred for less than 1 week.

14. I accept Mr Wreyford’s evidence as to [Child 1]’s living arrangements, which was corroborated by [Ms A]’s evidence, and find that there was a change in the pattern of care of [Child 1] from at least December 2022.  [Ms A] and Mr Wreyford could not recall the specific date in December 2022 on which she commenced living in Mr Wreyford’s home but were confident that it was before Christmas.  [Ms A] believed that she moved in before the December school holidays commenced.  [Ms A] gave her evidence in a forthright and honest manner, and I accept her evidence and find on the balance of probabilities that [Child 1] was 100% in the care of Mr Wreyford from 10 December 2022 onwards.  I find that Ms Squair has had only minimal and sporadic care of [Child 1] since that time. 

15. As Mr Wreyford’s previous care percentage determination of 0% had been made pursuant to section 49 of the Assessment Act, section 54G is not applicable. Accordingly, I find pursuant to section 54F of the Assessment Act that Ms Squair’ pre-existing percentage of care of 100% must be revoked, and that a new percentage of care determination of 0% for Ms Squair is required to be made pursuant to section 49 of the Assessment Act. A new percentage of care determination of 100% to Mr Wreyford is required to be made pursuant to section 50 of the Assessment Act.

16. Pursuant to paragraph 54F(3)(b) of the Assessment Act, as the change in care was notified on 26 January 2023, more than 28 days after that change occurred on 10 December 2022, there are different dates of effect for the revocation of each parent’s respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care determination of 100% recorded for Ms Squair takes effect the day before the change of care day, that is, on 9 December 2022. Revocation of the pre-existing percentage of care determination of 0% recorded for Mr Wreyford takes effect the day before the notification of the change of care day, that is, on 25 January 2023.

17. Pursuant to section 54B of the Assessment Act, new percentage of care determinations apply from the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 0% for Ms Squair applies from 10 December 2022 and a new percentage of care determination of 100% for Mr Wreyford applies from 26 January 2023.

18. As the decision of the Tribunal is different to the decision of Child Support, Child Support’s decision will be set aside and a decision substituted.

    Date of effect of the Tribunal’s decision

19. Child Support’s decision on the reported change in care was posted to Mr Wreyford on 12 April 2023.  Mr Wreyford lodged an objection to the care percentage decision on 15 May 2023.  Allowing for postal delivery, I find that Mr Wreyford lodged his objection on the 28^th day after being notified of the decision. 

20. However, Mr Wreyford lodged an application for review by this Tribunal more than 28 days after being notified of the decision of the objections officer on 20 October 2023. This means that if a favourable decision was made on review, that decision can only take effect from the day on which he lodged his application to this Tribunal: section 95N of the Act.

21. If there are special circumstances which prevented the person from lodging the objection within 28 days, there is a discretion for a decision-maker to allow a longer period for lodging the objection or making the application to this Tribunal, as appropriate.

22. Mr Wreyford said that the reason why he did not lodge an application with this Tribunal within 28 days was that he did not know until recently that this was an option available to him.  Mr Wreyford said there were no other circumstances that prevented him from lodging an application for review within 28 days.

23. I find that there were no special circumstances that prevented Mr Wreyford from lodging an application for review with this Tribunal within 28 days of the decision of the objections officer on 20 October 2023.  As such, the date of effect of the change in Mr Wreyford’s percentage of care is the date on which he applied to this Tribunal for review, being 25 March 2024.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides in relation to the child that:

• the existing percentage of care determination of 100% to Ms Squair is revoked from 9 December 2022 and a new percentage of care determination of 0% to Ms Squair applies from 10 December 2022; and

• the existing percentage of care determination of 0% to Mr Wreyford is revoked from 25 January 2023 and a new percentage of care determination of 100% to Mr Wreyford applies from 26 January 2023.

The Tribunal decides not to make a determination pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988.  The date of effect of the decision is 25 March 2024.