Booker and Isley (Child support)

[2024] AATA 3579

Booker and Isley (Child support) [2024] AATA 3579 (13 August 2024)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2024/MC028015

APPLICANT:  Ms Booker

OTHER PARTIES:  Mr Isley

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  13 August 2024

DECISION:

The Tribunal sets aside the decision under review and substitutes its decision that the existing determination of care for [Child 1], providing for Ms Booker to have 100% care of [Child 1] and Mr Isley to have 0% care of [Child 1], is not revoked. 

CATCHWORDS
CHILD SUPPORT – percentage of care – non-contact intervention order – existing determination of care not revoked – date of effect – 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. This application relates to a decision by Services Australia – Child Support (Child Support) relating to the particulars of the child support assessment, being the care percentage maintained by Child Support for the child [Child 1].

2. Ms Booker and Mr Isley are the separated parents of two children.  This matter relates to care arrangements for one of the children, [Child 1], arising from Mr Isley’s contact with Child Support on 8 September 2023.

3. At the time of Mr Isley’s contact with Child Support on 8 September 2023, the administrative assessment of child support reflected [Child 1] as being in Ms Booker’s 100% care and Mr Isley’s 0% care from 25 February 2023.

4. Following Mr Isley’s contact, on 11 September 2023 an employee of Child Support made a decision to revoke the existing determination of care and to make a new care determination that, from 2 September 2023, each parent had 50% care of [Child 1].

5. Child Support states that Ms Booker objected to this decision on 19 March 2024.

6. On 28 May 2024, an objections officer of Child Support disallowed the objection.

7. On 31 May 2024, Ms Booker made an application to the Administrative Appeals Tribunal for an independent review of Child Support’s decision. 

8. The Tribunal hearing was held on 13 August 2024.  The Tribunal spoke to Ms Booker by telephone and Ms Booker gave evidence at the hearing on affirmation.  Mr Isley did not participate in the hearing.  The Tribunal had been provided documents from Child Support (folios 1 to 130) and from Mr Isley (B1) and Ms Booker confirmed she had also received copies of the documents. 

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). The legal issue for the Tribunal is whether the existing determination of care should have been revoked in respect of Mr Isley’s contact with Child Support on 8 September 2023 and, if so, from what date a new care determination was to be made. The existing determination of care at the time Mr Isley contacted Child Support on 8 September 2023 provided that Ms Booker had 100% care of [Child 1] and Mr Isley had 0% care of [Child 1].

2. The provisions of the Assessment Act relevant to this decision are sections 54F, 54G and 54H and the Tribunal first considered section 54F of the Assessment Act. Subsection 54F(1) provides that the Registrar (or the Tribunal, standing in the shoes of the Registrar) must revoke a determination of a responsible person’s percentage of care in the following circumstances:

   (a)     the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and

   (b)     the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

   (c) section 54G does not apply; and

(d)     subsection (2) applies in relation to the individual.

Note:         The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

1. The Tribunal is satisfied that Mr Isley contacted Child Support on 8 September 2023 to advise that the care of [Child 1] that was actually taking place did not correspond with the percentages of care being maintained for him. Paragraph 54F(1)(a) of the Assessment Act is met.

2. Paragraph 54F(1)(b) of the Assessment Act requires the Tribunal to determine whether the parents’ cost percentages for [Child 1] would change if the Tribunal were to determine another percentage of care for [Child 1].

3. Ms Booker gave evidence to the Tribunal at the hearing that she has had 100% care of [Child 1] since February 2023.  She told the Tribunal that [Child 1] was living in [City 1] with Mr Isley up until February 2023.  Ms Booker flew to [City 1] in February 2023 to collect [Child 1], after receiving a phone call from [Child 1]’s school counsellor.  She sought legal advice prior to and after collecting [Child 1] and she applied for a Child Support case in February 2023, at which point she had care of both children. 

4. Ms Booker told the Tribunal that in September 2023 Mr Isley contacted her to say that he would be moving to spend more time with the children.  At the time [Child 1] was 14 years of age and she told [Child 1] she could decide what time she spent with each parent, but she and Mr Isley did not discuss any care arrangements.  [Child 1] visited Mr Isley for Father’s Day but at the time Child Support contacted Ms Booker about the care arrangements, she had not spoken to Mr Isley but said that if that was what the children wanted (50% time with each parent), that was okay with her.  [Child 1] did not end up going to stay with Mr Isley and a non-contact intervention order was made.  The Tribunal noted that there were two intervention orders contained in the Child Support documents naming [Child 1] as a protected person, made on 17 November 2023 and 20 May 2024.  Ms Booker stated that the November 2023 order was the first time an intervention order was made and that [Child 1] had not spent time with Mr Isley after the intervention order was made.  Ms Booker confirmed that there had never been a court order, parenting plan or any written arrangement regarding the care arrangements for [Child 1].  Ms Booker stated that the intended care arrangements for [Child 1] going forward are that [Child 1] is likely to remain in her care in the foreseeable future as there is still a non-contact intervention order in place. 

5. Ms Booker provided a letter to Child Support, prepared by her current partner, which provides information consistent with the information Ms Booker provided to the Tribunal at the hearing.  The letter notes that Ms Booker had collected [Child 1] from [City 1] in February 2023 and returned with [Child 1] to Victoria, that [Child 1] had been enrolled in [College 1] and had lived with them “permanently”.  Ms Booker’s current partner outlined that, at the time Mr Isley moved to Victoria, it had been hoped that each parent would provide 50% care to [Child 1] but this had not occurred.  

6. The above information was part of the documents made available to Mr Isley prior to the hearing.  The Tribunal did not have the benefit of speaking to Mr Isley at the hearing, but had regard to his written submissions, the relevant part of which was as follows:

   Once I moved back to Victoria to support the girls, [Child 2] had decided the home dynamics was far too toxic and after abusive messages and calls, asked to move in with me full time.

   After doing this [Ms Booker] chased her down screaming at her in front of multiple witnesses and in the following weeks instructed [Child 1] to take out an IVO against me and did not let me see her anymore.

7. The Tribunal found Ms Booker to give her evidence at the hearing in a clear and credible manner. Her account of the care arrangements for [Child 1] was consistent with the records of her various contacts with Child Support, contained in the Child Support documents, in which she has consistently asserted that [Child 1] has remained with her for 100% of the time since February 2023. Mr Isley’s written submissions appear to confirm that he has not had contact with [Child 1] after he moved to Victoria. The Tribunal finds on the evidence before it that, as of September 2023 when Mr Isley contacted Child Support regarding the care arrangements for [Child 1], [Child 1] was in Ms Booker’s 100% care and has remained so since that time. Given this, new cost percentages for the parents are unable to be made as the care percentage did not change. The existing determination of care is unable to be revoked under section 54F of the Assessment Act.

8. As to whether section 54G or 54H of the Assessment Act applies, both provisions also require that a change in the pattern of care has occurred. As the Tribunal has found that the existing determination of care, providing for Ms Booker to have 100% care of [Child 1], remained in place, it is unable to be revoked under either section 54G or 54H of the Assessment Act.

9. Given the Tribunal has reached a different conclusion to Child Support, and given the Tribunal’s findings are favourable to Ms Booker, it must go on to consider section 87AA of the Registration and Collection Act. This section is relevant to the date of effect of a decision where an individual has objected to a decision of Child Support more than 28 days after notice of the decision was served. In this matter, the original decision was made on 11 September 2023 and Ms Booker was notified of the decision by email (at folio 45) and was therefore given the decision on 11 September 2023.

10. The Tribunal had regard to Ms Booker’s contacts with Child Support, contained in the papers provided for the hearing.  Ms Booker contacted Child Support on 2 October 2023 (folio 52).  While the contact is described by the Child Support employee as being in relation to another child’s care, the record of contact details that Ms Booker outlined during the conversation that she had 100% care of [Child 1], in contrast to what Child Support had reflected at that time.  Ms Booker made further contact with Child Support on 16 November 2023 (folio 62), 15 December 2023 (folio 63), 19 February 2024 (folio 64) and 19 March 2024 (folio 66) and on each occasion spoke to Child Support about having continued to provide 100% care of [Child 1] since February 2023.  It was not until the contact of 19 March 2024 that the contact was treated as an objection to the decision of 11 September 2023.

11. The Tribunal notes that objections to care decisions are not required to be in writing (subsection 80(6) of the Registration and Collection Act). The Tribunal finds that, given the matters discussed by Ms Booker in her contact of 2 October 2023, this contact is capable of constituting an objection to the decision made on 11 September 2023. This contact was within 28 days of the notice of the original decision and the limitations imposed by section 87AA of the Registration and Collection Act therefore do not apply in this case. The effect of the Tribunal’s decision is that Ms Booker is to continue to be reflected as having provided 100% care to [Child 1] from September 2023 onwards.

DECISION

The Tribunal sets aside the decision under review and substitutes its decision that the existing determination of care for [Child 1], providing for Ms Booker to have 100% care of [Child 1] and Mr Isley to have 0% care of [Child 1], is not revoked.