Blackstone and Child Support Registrar (Child support)

[2018] AATA 1223

Blackstone and Child Support Registrar (Child support) [2018] AATA 1223 (8 March 2018)

DIVISION:  Social Security & Child Support Division

REVIEW NUMBER:  2017/MC013199

APPLICANT:  Mr Blackstone

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:  Member J Cuthbert

DECISION DATE:  8 March 2018

DECISION:

The decision under review is set aside and a decision substituted that from 21 June 2017 the child support assessment for [Child 1] is based on [Ms A] having a care percentage of 25% and Mr Blackstone having a care percentage of 0%.

CATCHWORDS
Child support – Percentages of care – Change to likely pattern of care – 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 Blackstone and [Ms A] are the parents of [Child 1] (born 2000) and [Child 2] (born 2007). There has been a child support assessment made by the Department of Human Services – Child Support (the Department) in place for [Child 1] since 2004. This review concerns the care percentages used for [Child 1] in the assessment. Prior to June 2017 the assessment was based on [Ms A] having a care percentage of 100% for [Child 1] and Mr Blackstone having a care percentage of 0%.

2. On 21 June 2017 Mr Blackstone advised the Department that [Child 1] had not been in [Ms A’s] care since December 2016 or January 2017. He said that [Child 1] had gone to stay with his girlfriend, [Ms B], at her mother’s house.

3. On 27 July 2017 the Department made decisions not to vary the care percentages used in the child support assessment for [Child 1] or to end the assessment.

4. Mr Blackstone lodged a verbal objection to the care percentage decision on 31 July 2017. On 21 August 2017 he sent an email to the Department stating that the assessment should have ended as [Child 1] is a member of a couple. His objection in relation to the care percentage decision was disallowed on 8 December 2017. The objections officer did not determine the objection to the decision not to end the child support assessment.

5. On 29 December 2017 Mr Blackstone made an application to the tribunal for a review of the objections officer’s decision.  

6. The application was heard on 8 March 2018. Mr Blackstone attended the hearing by telephone. [Ms A] was invited to be added as a party to the proceedings, but did not respond to the invitation. The tribunal had regard to documents provided by the Department (folios 1 to 256 and 257 to 261).

ISSUES

1. The issues the tribunal must decide are:

• whether there was a change to the care pattern for [Child 1] in late 2016 or early 2017 such that the care percentages used in the child support assessment should be revoked; and if so,

• the new care percentages which apply and the date from which they take effect.

CONSIDERATION

1. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act). After accepting an application for a child support assessment, the Department (acting for the Child Support Registrar) makes a child support assessment using a statutory formula in Part 5 of the Assessment Act. The formula contains a number of elements called “particulars of the assessment”. These include the “percentage of care” and a “cost percentage” for each parent in relation to each child.

2. The Department makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment or if there is a change to the care pattern which means that an earlier determination should be revoked.

3. Sections 49 and 50 require the Registrar, or this tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Section 54A of the Assessment Act provides that the extent of care that a person is to have under a care arrangement may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.

4. Care percentages must be revoked and new care percentages determined if the care of a child that is actually taking place does not correspond with a person's existing percentage of care for the child such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply (section 54F of the Assessment Act).

5. The date of effect of any revocation of care percentages, and the date of changes to the percentages used, depends on when the Department was notified or became aware of the change. If neither parent is an eligible carer (neither has a care percentage of at least 35% – section 7B and subsection 5(3) of the Assessment Act) and no other person has applied for a child support assessment for the child, the assessment ends (section 12 of the Assessment Act).

6. The concept of care is not defined in the child support legislation. In Polec & Staker (SSAT Appeal) [2011] FMCAfam 959 the Court stated that in determining to what extent a person has care of a child the following questions may be posed:

   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?

7. There is no dispute that [Child 1] was living with [Ms A] until she was required to leave rental premises in December 2016. Mr Blackstone said that he accepts that initially the arrangements were temporary, but said that [Child 1] stayed with [Ms A] at her sister’s home until 9 January 2017 after which [Ms A] moved to live with Mr Blackstone’s [mother].  

8. The tribunal is satisfied that [Child 1] remained living at his aunt’s home until 9 February 2017, the date on which [Ms B’s] mother stated that he went to stay at her home. [Child 1’s] aunt stated that [Ms A] continued to “cover the cost of his food and bills while he was with me” in January 2017.

9. In an undated statement provided to the Department on 12 July 2017 [Ms B] mother stated that [Ms A] “was paying me $75 a week to support [Child 1]” and paid for clothes and shoes when needed. She stated that [Child 1] subsequently started to stay with his mother at [a suburb], but continued to stay three nights a week at her home. Mr Blackstone provided evidence that [Child 1] asked him to make rent payments and that he paid [Child 1] $75 a week from May to early July 2017.

10. [Ms A] provided evidence of a move to [a suburb] to stay with [Ms C] on 21 April 2017. She lived there until 24 July 2017 when she obtained rental accommodation with [Ms B] as the co-lessee.

11. The statements provided from [Ms C], one undated and the other dated 28 August, are inconsistent. In one statement [Ms C] states that [Child 1] lived with her and [MsA] at [a suburb] from 21 April 2017. In the second statement she states that as at 28 August 2017 [Ms A] and [Child 1] had been living with her for five weeks.

12. [Ms A] provided evidence of two bank transfers to [Child 1], $50 on 30 January 2017 and $89.50 on 16 April 2017. Mr Blackstone acknowledged that she may have been paying [Ms B’s] mother $75 a week prior to May 2017 but said that [Child 1] also had income from a part-time job. He said that [Child 1] has not attended school for some time and that he works in a [shop] for about 24 hours a week (four hour shifts, six days a week).

13. He said that from January to April 2017 [Ms A] had lived about 20 minutes’ drive away from where [Child 1] was living. He suggested that although she may have spoken to him by telephone on a regular basis and taken him to some medical appointments, [Child 1] would not have relied on her for supervision. Mr Blackstone said that [Child 1] would have asked neither him nor [Ms A] for permission to take part in any activities. He noted that [Ms B] would drive [Child 1] to have dinner with his paternal grandmother and [Ms A] on a weekly basis. Mr Blackstone does not dispute that [Ms A] went with [Child 1] when he attended hospital for treatment for a burn on 13 June 2017 and when he had an MRI on 29 June 2017.

14. On the evidence available the tribunal finds that there was a change to the care pattern for [Child 1] from 9 February 2017 when the temporary arrangement concerning his care altered and he went to live at the home of [Ms B’s] mother. Although [Ms A] may have continued to provide some support the tribunal finds that she was no longer an eligible carer from that date. The tribunal finds that the level of support she provided equates to a care percentage of about 25%. The care percentages previously used in the child support assessment for [Child 1] should be revoked and new care percentages applied so that [Ms A] has a care percentage of 25% and Mr Blackstone continues to have a care percentage of 0%. As Mr Blackstone did not advise the Department of the change in the care pattern for more than 28 days after it occurred, the tribunal finds that the change to the care percentages takes effect from 21 June 2017.

15. The tribunal notes that, in light of this decision, the Department may consider whether the child support assessment for [Child 1] should be ended because [Ms A] ceased to be an eligible carer.  

16. Mr Blackstone submits that the assessment should also be ended because [Child 1] is a member of a couple. A child support assessment also ends under section 12 of the Assessment Act if the child becomes a member of a couple. The term “member of a couple” is defined in section 5 of the Assessment Act as:

    (a)  a person who is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis; or

    (b)  a person who is living with another person as the partner of the other person on a genuine domestic basis although not legally married to the other person; or

(c) a person whose relationship with another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section, and is not living separately and apart from the other person on a permanent or indefinite basis.

1. The tribunal notes that Mr Blackstone’s objection on this ground was not decided by the objections officer on 8 December 2017. For that reason the tribunal finds that it does not have jurisdiction to determine if [Child 1] became a member of a couple. However, the tribunal notes that in early 2017, [Child 1] was 16 and [Ms B] was in her early 20s. It appears that they became girlfriend and boyfriend in late December 2016 and are not married or in a registered relationship. Mr Blackstone told the tribunal that he understands that [Ms B] is not working and is reliant on Centrelink payments. While [Child 1] and [Ms B] have resided in the same house since 9 February 2017 and Mr Blackstone states that they have a sexual relationship, there is no evidence of financial dependence or a level of commitment which would suggest that they are living together on a genuine domestic basis.

DECISION 

The decision under review is set aside and a decision substituted that from 21 June 2017 the child support assessment for [Child 1] is based on [Ms A] having a care percentage of 25% and Mr Blackstone having a care percentage of 0%.