Blinkhorn and Child Support Registrar (Child support)

[2021] AATA 2288

Blinkhorn and Child Support Registrar (Child support) [2021] AATA 2288 (20 May 2021)

DIVISION:Social Services & Child support Division

REVIEW NUMBER:  2021/MC020839

APPLICANT:  Ms Blinkhorn

OTHER PARTIES:  Child support Registrar

TRIBUNAL:Member J Longo

DECISION DATE:  20 May 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Ms Blinkhorn has a percentage of care of 86% for [the child] and [Mr A] has a percentage of care of 0% for [the child] from 15 July 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – child spending time in care of step-parent – existing percentage of care determinations revoked and new determinations made – 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 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 the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1.[Mr A] and Ms Blinkhorn are the parents of [the child]. [Mr A] is the parent liable to pay child support.

2.On 23 November 2020, Services Australia – Child Support (Child Support) implemented a decision of Centrelink that Ms Blinkhorn had 65% care for [the child] and that [Mr A] had 0% care of the children from 15 July 2020.

3.On 30 November 2020, [Mr A] lodged an objection to the above care decision. On 11 February 2021, Child Support disallowed [Mr A]’s objection.

4.On 19 February 2021, Ms Blinkhorn lodged an application to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. Ms Blinkhorn spoke to the Tribunal via conference telephone and gave sworn evidence. [Mr A] did not participate. In making its decision, the Tribunal took into consideration the documents provided by Child Support (110 pages), which were also sent to Ms Blinkhorn prior to the hearing.

CONSIDERATION

5.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [the child]?

6.Ms Blinkhorn confirmed at the hearing that there were no court orders or parenting plans in place for the care of [the child]. Ms Blinkhorn stated that [Mr A] does not have any overnight care of [the child]. Ms Blinkhorn stated that since separation, she has had 100% care of [the child]. In December 2019, Ms Blinkhorn stated that she separated under one roof from her partner, [Mr B], and that they then physically separated in January 2020. Ms Blinkhorn and [Mr B] have a child from that relationship, [Child 2]. She stated that she spoke to Centrelink about [Child 2] but they also made a decision about [the child]’s care as well.

7.Ms Blinkhorn stated that when she and [Mr B] separated, it was a difficult adjustment for [the child]. She stated that he struggled not seeing [Mr B] and was dealing with abandonment issues. To help with these abandonment issues, [the child] was staying with [Mr B] between two nights and six nights per fortnight. The pattern of his time with [Mr B] was dependent on their work schedules and how [the child] was coping.

8.Ms Blinkhorn stated that she provided all his clothes while with [Mr B]. She also took him to all his medical appointments, to the hairdresser, dentist and other activities even when he was with [Mr B]. Prior to July 2020, she took him to [sport] and [activity]. She was also paying for his health insurance and school costs.

9.Ms Blinkhorn stated that [the child] shared a bedroom with [Child 2] while with [Mr B] and [Mr B] would provide meals while with him. [The child] was attending school, as they are both essential workers, and so he would ride his bike to school. He rode his bike to school when in her care. If he wanted to visit friends or do activities, he would do this when with her as [Mr B] always said no to him. They had prearranged times for bed which [Mr B] would oversee. [Mr B] was not able to delegate the care of [the child] and did not have any substantial costs, he did not get a bigger house due to the care of [the child] and was only providing food while there. Ms Blinkhorn stated that she does not dispute that [Mr B] was providing some care but she was bearing the majority of the responsibility of [the child]’s costs and making decisions regarding his care needs. The purpose was to help [the child] deal with the abandonment issues he was experiencing.

10.Section 50 of the Act requires a determination of a percentage of care to be made where the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances.

11.Care is usually determined on the basis of the overnight arrangements in place. However, other factors can also be taken into account. These include such things as:

·     To what extent the person has control of the child, including having overall responsibility for the child and making:

o    major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

o    arrangements for others to meet the needs of the child (delegated care).

·     To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

12.In this matter, it is clear that [the child] spent some nights in the care [Mr B]. However, the evidence of Ms Blinkhorn was that she made all decisions regarding overall responsibility of [the child]. Ms Blinkhorn was paying for his ongoing expenses, except for food when [the child] was with [Mr B], and meeting [the child]’s other needs. Accordingly, the Tribunal has determined that these other factors should be considered in determining the care. The Tribunal accepts Ms Blinkhorn’s evidence that she was making decisions regarding [the child]’s health, education, supervision and extra-curricular activities. While the Tribunal is satisfied that [the child] was staying with [Mr B], this did not, in the Tribunal’s view, exceed more than regular care. [Mr B] was not responsible for any aspect of [the child]’s care, beyond the provision of food and accommodation during this time, with Ms Blinkhorn making all other decisions. The Tribunal has also taken into account that this care was occurring to assist with [the child]’s mental health and help with the abandonment issues he was experiencing.

13.Accordingly, the Tribunal has decided that the care determination should reflect that Ms Blinkhorn has 86% care of [the child] and [Mr A] had 0% care of [the child] from 15 July 2020.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Ms Blinkhorn has a percentage of care of 86% for [the child] and [Mr A] has a percentage of care of 0% for [the child] from 15 July 2020.