Biddle and Child Support Registrar (Child support)

[2018] AATA 4152

Biddle and Child Support Registrar (Child support) [2018] AATA 4152 (3 October 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC014409

APPLICANT:  Ms Biddle

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Thomson

DECISION DATE:  3 October 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages of 100% for Ms Biddle and 0% for [Mr A] be recorded from 1 March 2018.

CATCHWORDS
CHILD SUPPORT – percentage of care – change in the likely pattern of care –
decision to revoke and make a new determination – 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. Ms Biddle and [Mr A] are the parents of [Child 1], born 2002.

2. Ms Biddle seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 22 June 2018. This decision disallowed her objection to a decision dated 19 April 2018 rejecting her application for a change to the care percentages for the parents’ son, [Child 1], born 2002.

3. The Tribunal heard the matter on 2 October 2018. Ms Biddle attended the hearing via conference telephone and gave affirmed evidence. Mr A did not attend the hearing, despite being afforded the opportunity to do so.

4. The Tribunal had before it documentation provided by the Department which was admitted into evidence and marked Exhibit 1. Ms Biddle had copies of those papers with her at hearing.

CONSIDERATION

1. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Department makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate, and when such a divergences occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of notification and what was likely to happen thereafter?

2. On 1 March 2018, Ms Biddle notified the Department of a change in care for [Child 1] which she said occurred on or about Christmas 2016.

3. Prior to Ms Biddle’s notification of a change in care on 1 March 2018, the care percentages being assessed by the Department were 86% to Ms Biddle and 14% to Mr A.

4. On 19 April 2018, the Department rejected Ms Biddle’s request for a change of care with respect to [Child 1], and on 26 April 2018, Ms Biddle objected to the Department’s decision.

5. On 26 April 2018, in the course of a telephone conversation between a Department officer and Ms Biddle recorded in the Department’s file note of that date at page 20 of Exhibit 1, the Department allowed Ms Biddle until 11 May 2018 to provide further evidence in support of her objection in the form of third-party statements.

6. At hearing, Ms Biddle’s case was that the Department had failed to consider a third-party statement of evidence from her 20 year old daughter, [Child 2], which she said she provided to the Department via the Department’s myGov communications channel on or about 11 May 2018, in response to the Department’s request recorded in its file note at page 20 of Exhibit 1, and prior to the objections officer making the decision under review on 22 June 2018.

7. Ms Biddle gave evidence at hearing that her daughter, [Child 2], resides with her and [Child 1], and has done so continuously since she was 12 years of age.

8. [Child 2’s] statement appears at page 2 of Exhibit 1. It relevantly confirms she is 20 years of age and is sister of [Child 1] and, that since December 2016 until the date of her statement on 11 May 2018, [Child 1] had spent, at most, one night and one day every two to three months in Mr A’ care.

9. Ms Biddle said in evidence that prior to Christmas 2016, the pattern of care Mr A had with respect to [Child 1] was consistent with the Department’s recorded care percentage of 14%. She said that on or about Christmas of 2016 that pattern of care changed when [Child 1], who was then 16 years of age, decided not to spend his regular part of the Christmas holidays with his father. Ms Biddle said at that time, [Child 1] was having issues with Mr A’s new partner, and from that time forward only spent occasional weekends of one day and one night with his father over irregular, sporadic intervals of three to five months.

10. Ms Biddle gave evidence that on the occasions [Child 1] went to stay with Mr A at his home [post-Christmas] 2016, she drove him there, generally on a Sunday afternoon, and returned to collect him the following morning.

11. She said she decided to notify the Department of the change in care on 1 March 2018 when she realised the Department’s recorded care of 14% for Mr A was no longer a reflection of the actual care taking place since Christmas 2016. She said she accepts the Department’s determination of 25 December 2016 as the date upon which the change in care occurred.

12. The Tribunal accepts Ms Biddle’s evidence as set out above, and the evidence of her daughter, [Child 2], set out in her statement of 11 May 2018, Exhibit 1, page 2, and finds that a change in care with respect to [Child 1] occurred on 25 December 2016, and that since that date, Mr A has had no pattern of care with respect to [Child 1].

13. The Tribunal finds that since 25 December 2016 Ms Biddle has had 100% care and Mr A has had 0% care of [Child 1]. Accordingly, it is appropriate that the existing care percentages be revoked and new care percentages of 100% to Ms Biddle, and 0% to Mr A be applied from 1 March 2018.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages of 100% for Ms Biddle and 0% for Mr A be recorded from 1 March 2018.