Bevis and Child Support Registrar (Child support)

[2019] AATA 1743

Bevis and Child Support Registrar (Child support) [2019] AATA 1743 (13 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC016016

APPLICANT:  Miss Bevis

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member W Budiselik

DECISION DATE:  13 May 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – did a child support terminating event take place - 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. Miss Bevis (the applicant mother) and Mr [A] (the father) are the parents of a child (born March 2009). Mrs Bevis is the child’s maternal grandmother. A child support case was registered in respect of the child from 21 April 2009. From 10 August 2012, the Department of Human Services – Child Support (the Department) recorded the mother had 100% of the child’s care and the father had 0% of his care.

2. On 17 September 2018, the father advised the Department the child was no longer in either parent’s care from 12 December 2017. On 27 October 2018, a Departmental officer decided the care percentages should be changed to reflect each parent had 0% of the child’s care from 30 January 2018. The Department decided the changed care constituted a child support terminating event for the case.

3. On 16 November 2018, the applicant mother lodged an objection to the decision with the Department. On 17 January 2019, the Department disallowed the objection.

4. Notwithstanding the objections officer disallowed the objection, the officer’s decision explained that an error in the original decision had been corrected. The error was to record the child support terminating event as 30 January 2018. The correction was that the child support terminating event is to be recorded from 17 September 2018, the date the father notified the Department of the changed care.

5. On 27 February 2019, the applicant lodged an application for a review of the Department’s decision with the Administrative Appeals Tribunal (the tribunal). On 14 May 2019, the tribunal conducted a hearing into the application. The applicant participated in the hearing over the phone. The father was invited to be added as a party to the hearing but chose to not be added. Prior to the hearing the Department provided the tribunal and the applicant with a bundle of documents (folios 1–121). The applicant mother provided additional information, which has been provided to the Department (folios A1–A2).

6. The applicant mother told the tribunal she had not received the Department’s papers. Following the hearing the tribunal sought advice from the Department, which advised the applicant’s papers had been posted but returned. The tribunal asked the Department to re-issue the papers to the applicant mother. In any event, if the papers are not received by the applicant, the applicant is advised to contact the Department directly.

ISSUE

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) as it was in force prior to 23 May 2018.

2. The issues which arise in this case are:

a)Has there been a change to the care pattern for the child such that the care percentages used in the child support assessment should be revoked? And, if so,

b)What are the new care percentages which apply and the date from which they take effect; and,

c)Did a child support terminating event take place?

CONSIDERATION

Issue a) to c): Has there been a change to the pattern of care for the child such that the care percentages used in the child support assessment should be revoked, and, if so, what are the new care percentages and from when do they take effect? Did a child support terminating event take place?

1. The relevant provisions in this case are sections 49, 50 and 54F of the Act which provide that if there is a change to a parent’s percentage of care, and that change would cause a change to the parent’s cost percentage then the care determination that is in place must be revoked and replaced by a percentage of care determination that reflects the actual care that the person will have, or is likely to have in the care period.

2. Section 74 of the Act provides that if the Registrar becomes aware of a child support terminating event the Registrar must act to take it into account. A child support terminating event is defined in section 12 of the Act.

3. The way the Department interprets and applies child support legislation is set out in the online Child Support Guide (the Guide). The tribunal is not bound by law to apply the Department’s policy as set out in the Guide, but provided the policy is consistent with the legislation, it must have regard to it and in the ordinary course, follow it (Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) unless there is a cogent reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

4. In this case percentage attributions in place from 10 August 2012 have to be revoked if the applicant mother’s percentage of care reduced to less than 86% of the child’s care from 30 January 2018 (the change of care day).

5. The mother did not in dispute the child’s care arrangement changed from 30 January 2018, in line with an Order from the Magistrate’s [Court] . In part, the Order stated:

   The child to live with the Applicant grandmother

   …

   The first respondent (“the mother”) to spend time with the child as agreed between herself and the Applicant grandmother.

   …

   The mother is restrained and injunction is granted restraining the mother from removing or attempting to remove the child from the state of [named state] …

6. The applicant mother explained the Order reflected a poor relationship between herself and the child’s grandmother. She said at the time the child’s grandmother initiated court action in December 2017, she (the applicant mother) was living in[another state].

7. The mother explained after the Order of 30 January 2018 was granted to the child’s grandmother, she (the applicant mother) had to fight to obtain court ordered access to the child. The mother said at 30 January 2018, she was uncertain whether she would be permitted to care for the child.

8. The legislation requires a parent to inform the Department if a new pattern of care is agreed on by the child’s carers or after a new pattern of care has been established, so that a care percentage can be applied to a forthcoming child care period. The tribunal explained to the applicant mother that its task is to determine the care that it was anticipated she would have for the child from 30 January 2018. In this case it was evident to the tribunal that at that time the applicant mother did not anticipate having regular care of her child until the matter was further resolved in court.

9. In this case the tribunal determined that at 30 January 2018, the mother’s likely pattern of care for the forthcoming period was 0% of the child’s care. The attribution of 0% of care means in effect the tribunal was determining the applicant mother would have between 0% and less than 14% of the child’s care in the period after 30 January 2018.

10. That the father notified the Department of the changed child care arrangement on 17 September 2018 means that the Department continued to record and apply the mother’s care percentage for the child at 100% until 17 September 2018. This is because the father’s notification of the changed care arrangement was more than 28 days after the change of care day (see subsection 54F(2) of the Act).

11. Consequently, the tribunal agrees with the Department’s decision to record the child’s care percentage as 0% to the applicant mother and 0% to the father from 17 September 2018. That is, the tribunal revokes the existing care percentage of 100% care to the applicant mother from 16 September 2018.

12. Topic 2.10.3 of the Guide provides information about child support assessment terminating events. In part it states:

    Terminating event in relation to a child

    A terminating event happens in relation to a child (CSA Act section 12(2AA)) if:

    ·both parents of the child are not eligible carers of the child (2.1.1), i.e. they are determined as not having at least 35% care of the child after a change in care, and

    ·there is no non-parent carer entitled to be paid child support in relation to the child (i.e. no non-parent carer is entitled to child support for the child under the child support assessment).

    This means a terminating event occurs if the Registrar makes new care percentage determinations after a change in care, neither parent of the child has at least 35% care of the child as a result of the new care percentage determinations, and there is no non-parent carer entitled to child support for the child under the child support assessment. The date of effect for the terminating event is the date of effect for the new care percentage determinations (2.2.2).

13. That is, in this case the tribunal is satisfied a child support terminating event occurred on 17 September 2018.

14. Consequently, the decision reached by the tribunal is the same as that reached by the Department.

15. The tribunal noted a new child support assessment was registered in respect of the child from 13 February 2019, and the mother is now attributed with 58% of the child’s care and the father is attributed with 13% of the child’s care.

Other matter

24.At the outset of the hearing the applicant explained she was seeking a review of the Department’s decision because she had incurred a family tax benefit debt, and she had been told by Centrelink that to address the family tax benefit debt she needed to seek a review of the Department’s decision.

25.The tribunal advised the applicant it is open to her to ask Centrelink to review its decision to raise and recover a family tax benefit debt, and then, if she so wishes, to seek a further review by the tribunal.

DECISION

The decision under review is affirmed.