Balderas and Sanchez (Child support)

[2020] AATA 3671

Balderas and Sanchez (Child support) [2020] AATA 3671 (22 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019074

APPLICANT:  Ms Balderas

OTHER PARTIES:  Child Support Registrar

Mr Sanchez

TRIBUNAL:Member F Staden

DECISION DATE:  22 July 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – if so, from what date had the care changed - existing percentage of care determination revoked and new determination made from the correct date - decision under review affirmed

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. Ms Balderas and Mr Sanchez are the separated parents of [Child 1], born 2004. For the period from 8 January 2018, [Child 1] was assessed as being 100% in the care of Mr Sanchez.

2. On 17 February 2020, Ms Balderas is recorded as informing Services Australia – Child Support that Mr Sanchez had not provided care for [Child 1] from 1 January 2020.

3. On 24 February 2020, Mr Sanchez informed Services Australia – Centrelink that [Child 1] left his care on 22 February 2020 without his consent and was living with his girlfriend and his girlfriend’s mother, [Ms A].

4. On 24 February 2020, Centrelink decided to grant [Ms A] family tax benefit for [Child 1] from 22 February 2020 on the basis that he was 100% in her care from that date.

5. On 25 February 2020, Child Support decided to apply the Centrelink care percentage decision to the assessment.

6. On 18 March 2020, Ms Balderas lodged an objection to the 25 February 2020 Child Support decision about [Child 1]’s care. She stated that [Child 1] had lived with his girlfriend and [Ms A] from 1 December 2019. In support of her application she provided undated statements from [Ms A]; [Ms B] ([Child 1]’s girlfriend); [Ms C] ([Child 1]’s sister who lives with Ms Balderas); and [Rev D] (member of the community church attended by [Ms A] and her family).

7. In response, on 7 May 2020, Mr Sanchez provided receipts for payments to [Child 1]’s school over the period June 2019 to February 2020 (receipts for the period from 10 December 2019 to 18 February 2020 total $125); a debtor statement from [Child 1]’s school showing that at 17 March 2020 Mr Sanchez owed $80; a [specified sport competition] entry form for [Child 1] completed by Mr Sanchez and requiring a $20 entry fee for the January 2020 competition; a 17 March 2020 statement from [Ms E] (a family friend and mother of a child who [plays sports] with [Child 1]); and an 18 March 2020 statement from [Ms F] (half-sister of [Child 1]).

8. On 12 May 2020, an objections officer disallowed Ms Balderas’ objection finding that the decision to assign Mr Sanchez a care percentage of 0% for [Child 1] from 22 February 2020 was correct.

9. On 19 May 2020, Ms Balderas applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.

10. A hearing was conducted on 22 July 2020. Ms Balderas and Mr Sanchez gave sworn evidence by telephone. The tribunal also had before it documents provided by Child Support (pages 1 to 72), copies of which were sent to each of the parties before the hearing. Also prior to the hearing, in response to a request from the tribunal, Child Support provided a copy of Mr Sanchez’s supporting material (pages 73 to 84), some of which had not been included in the original papers. Ms Balderas received all the Child Support papers. Mr Sanchez did not receive the second set but was happy to proceed without them as their content was known to him.

11. Relevant aspects of the evidence before the tribunal are referred to in the consideration below.

ISSUES

1. The relevant legislation in this case is the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, Child Support’s online technical and policy guide to the administration of the child support scheme.

2. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent or non-parent carer in relation to each child.

3. Child Support decides care percentages in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide a care percentage for each parent or non-parent carer when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require Child Support, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Centrelink are informed otherwise.

5. The concept of care is not defined in child support legislation. In Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec) the Court stated:

   In my view, in determining whether and to what extent a person has care of a child for the purposes of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   a. 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 extracurricular activities?

   b. To what extent does the person make arrangements for others to meet the needs of the child?

   c. To what extent does the person pay for the costs of meeting the needs of the child?

   d. To what extent does the person otherwise provide financial support for the child?

   e. To what extent does the child provide for his or her own needs or have those needs met from another source?

   f. To what extent is the child financially independent or financially supported from another source?

6. In this case it is agreed that [Child 1] was no longer in the care of Mr Sanchez from 22 February 2020. The issue here is whether [Child 1] left Mr Sanchez’s care from an earlier date, that is, from 1 December 2019, as argued by Ms Balderas.

CONSIDERATION

Issue 1: Did [Child 1] leave the care of Mr Sanchez from 1 December 2019?

1. Drawing on material provided by Child Support and the evidence of Ms Balderas and Mr Sanchez, the tribunal noted the following:

   ·     There is no court order, care plan or written agreement about [Child 1]’s care.

   ·     Mr Sanchez agreed that [Child 1] was spending some nights at the home of his girlfriend and her mother in the period 1 December 2019 to 21 February 2020 but stated that this was not a permanent arrangement.

   ·     [Child 1] was suspended from school in the latter part of Term 4 2019. There was an initial suspension of three days followed by another suspension of 20 days from early December 2019. [Child 1] was therefore not at school for much of December 2019. Mr Sanchez said that he liaised with the school about [Child 1]’s suspension and his return to school at the beginning of Term 1 2020. This involved speaking with various members of the school staff. Ms Balderas did not dispute this, saying the school had not told her anything about the suspensions.

   ·     Ms Balderas and Mr Sanchez agree that [Child 1] spent the Christmas period with Mr Sanchez.

   ·     There is independent evidence, in the form of receipts, of Mr Sanchez paying [Child 1]’s educational expenses in the period 1 December 2019 to 21 February 2020.

   ·     In January 2020, [Child 1] attended [a specified sport competition] in [City 1]. Mr Sanchez had to miss the beginning of the week-long competition because of a medical appointment but was otherwise there with [Child 1] and met his related expenses.

   ·     There is no independent evidence of [Ms A]’s spending in relation to [Child 1] in the period 1 December 2019 to 21 February 2020.

   ·     Ms Balderas’ understanding of [Child 1]’s care arrangements in the period 1 December 2019 to 21 February 2020 significantly relies upon what she was told by [Ms A]. Her visit to [Child 1] when he was living with [Ms A] was after 21 February 2020.

2. The period 1 December 2019 to 21 February 2020 was a time of disruption for [Child 1], during which he moved between the home of Mr Sanchez and the home of [Ms A]. However, the tribunal was not persuaded that [Child 1] left Mr Sanchez’s care during this time. Mr Sanchez continued to be the primary contact point for [Child 1]’s school while various interactions took place in relation to [Child 1]’s suspension; Mr Sanchez met educational and other expenses for [Child 1]; and Mr Sanchez provided support for [Child 1] during such significant recreational times as Christmas and the January 2020 bowling competition.

3. The tribunal concluded that Mr Sanchez remained the person responsible for [Child 1]’s care in the period 1 December 2019 to 21 February 2020. The tribunal was satisfied that [Child 1]’s pattern of care did not change until 22 February 2020 and that Mr Sanchez’s care percentage for [Child 1] properly changed from 100% to 0% from that date.

DECISION

The decision under review is affirmed.