Anacombe and Kokoski (Child support)

[2024] AATA 4131

Anacombe and Kokoski (Child support) [2024] AATA 4131 (23 August 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC028018

APPLICANT:  Mr Anacombe

OTHER PARTIES:  Child Support Registrar

Miss Kokoski

TRIBUNAL:Member R Prasad

DECISION DATE:  23 August 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS 

CHILD SUPPORT – Particulars of the Assessment – objection to the decision to remove the relevant dependent allowance – father no longer had a relevant dependent child – 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 theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Anacombe and Miss Kokoski are the parents of one child born [date] November 2012. Since 1 November 2013, this case was registered with Services Australia – Child Support (Child Support), with Miss Kokoski having 100% care and Mr Anacombe having 0% care of the child. The child support assessment included a relevant dependent allowance for Mr Anacombe in respect of his two children from a different relationship.

2. On 30 March 2024, Services Australia – Centrelink (Centrelink) notified Child Support that Mr Anacombe had 0% care of his two other children from 19 January 2024. Child Support updated the administrative assessment to remove the relevant dependent allowance for Mr Anacombe, and his annual rate of child support increased. On 14 April 2024, Mr Anacombe lodged an objection to the decision to remove the relevant dependent allowance.

3. An objections officer, on 31 May 2024, disallowed the objection. Mr Anacombe sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

4. The matter was heard on 22 August 2024. Mr Anacombe appeared by MS Teams audio and provided documentation (folios A1 to A28). Miss Kokoski also appeared by MS Teams audio and participated for part of the hearing before she had to leave. The Child Support Registrar (the Registrar) elected not to be represented at the hearing, but provided documentation (folios 1 to 73).

ISSUE

1. The issue before me is whether a relevant dependent allowance should be applied to the child support assessment.

CONSIDERATION

What does the law say about relevant dependent allowance?

1. Division 2 of Part 5 of the Child Support (Assessment) Act 1989 (the Act) sets out the formula for determining a person’s rate of child support, including working out a parent’s relevant dependent child amount for a day in the child support period.

2. Section 73A of the Act provides that where the Registrar becomes aware, a person can be taken to have a relevant dependent child for the purpose of working out the person’s relevant dependent child amount. Section 5 defines “relevant dependent child” to include a child where the parent has at least shared care, namely between 35% to 65% care, of the child.

3. Section 74 of the Act states that if child support is payable for a child, and the Registrar is notified or becomes aware of the happening of an event or change of circumstances that affects the annual rate of which child support is payable, the Registrar must immediately take such action as is necessary to take account of the happening of the event or change of circumstances, whether by amending the administrative assessment or otherwise.

What information has been provided?

1. Mr Anacombe’s assertions focussed on the care he claims to have of his other children. He asserted that his care of the children has not changed, and therefore his relevant dependent allowance should be included in the child support assessment. He stated that when Centrelink was advised that he was no longer partnered with his other children’s mother, Centrelink made a decision that his children were no longer in his care without speaking to him, and informed Child Support. He said he has a private care arrangement with his other children’s mother and the hearing papers include a statement from her which states that their children stay with Mr Anacombe on weekends and holidays and that he also visits them sometimes during the weekdays after he finishes work. Further, it was stated that he pays for all of their expenses including their accommodation and utility bills. In this regard, he provided [electricity] and gas bills which I understand are for the property his children and former partner are living in and the bills are addressed to him. He also provided a copy of his bank statements which show payments for child care, the first being on 4 January 2024. He asserted that if he did not have care of his children, then why would he be making such payments. He rejected any attempts to explain the limitations of this review and that the review does not involve a review of the care percentage determination regarding his other children. Rather, his position remained that as the relevant dependent allowance relates to the care percentage, a decision needed to be made in relation to his care of his other children in this case.

2. Miss Kokoski stated that Mr Anacombe and the mother of his other children are still together and not separated. She asserted that fraud had taken place where his partner married another man, [Mr A], from the same [community], for an amount of $50,000 so that man could obtain permanent residency. She referred to Mr Anacombe’s bank statements that had been provided and said that it shows two payments with reference “[Mr A]” on 28 and 30 April 2024 in the amounts of $20,000 and $30,000 respectively. I advised her that such allegations need to be informed to the appropriate bodies and that I was limited to considering the issue regarding whether the relevant dependent allowance was correctly removed. To this, Miss Kokoski stated that she understood and had wanted the Tribunal to know all of the circumstances, and that otherwise she would be happy with whatever decision the Tribunal makes. When asked about whether he would like to make any comment on what Miss Kokoski had stated, Mr Anacombe said that he did not know what she was talking about.

Should a relevant dependent allowance be applied to the child support assessment?

1. I note that the care determination made by Centrelink is a separate determination involving different parties to the present matter, namely Mr Anacombe and the mother of his other children, not Miss Kokoski. The operative decision remains that Mr Anacombe is recorded as not having care of his other children, and therefore his care is at a level below 35%. That decision remains reviewable by Services Australia, and then ultimately by the Tribunal where such an application is made. The scope of this review does not extend to “looking behind” the separately made and recorded care determination. Mr Anacombe is at liberty to pursue his right for a separate merit review of the care determination. For present purposes, I must apply the operative care determination to this matter.

2. On 30 March 2024, Centrelink made a decision that Mr Anacombe had 0% care of his other children from 19 January 2024 and notified Child Support of this determination. Accordingly, Mr Anacombe no longer had a relevant dependent child as he no longer had at least 35% care of his other children.

3. Where a person has a relevant dependent child, a relevant dependent child amount is applied to the administrative assessment or child support assessment, and the annual rate of child support payable is reduced accordingly. As Mr Anacombe no longer had a relevant dependent child, the administrative assessment relevant to the child support case with Miss Kokoski was to be immediately amended to remove the relevant dependent allowance pursuant to section 74 of the Act. Accordingly, Child Support correctly made a decision to remove Mr Anacombe’s relevant dependent allowance. As mentioned above, Mr Anacombe is at liberty to seek a review of the care determination where it was decided that he has 0% care of his other children from 19 January 2024.

DECISION

The decision under review is affirmed.