Brabin and Shurtleff (Child support)

[2021] AATA 2749

Brabin and Shurtleff (Child support) [2021] AATA 2749 (7 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021113

APPLICANT:  Miss Brabin

OTHER PARTIES:  Child Support Registrar

Mr Shurtleff

TRIBUNAL:Member J Bakas

DECISION DATE:  07 June 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of whether care exists – existing percentage of care determinations revoked and new determinations made – decision under review affirmed

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. Miss Brabin and Mr Shurtleff are the parents of [Child 1], in respect of whom a child support assessment is in place.

2. On 15 March 2016 the Department of Human Services (the Child Support Agency) accepted Miss Brabin’s child support assessment application.  The assessment was based on Miss Brabin having 100% care and Mr Shurtleff 0% care of the child, [Child 1], from 11 July 2015.

3. On 15 June 2016, Mr Shurtleff objected to the decision. His position was that Miss Brabin did not have care of [Child 1] at all and neither did he as he was incarcerated at that time.  Rather, [Child 1] was in the care of Miss Brabin’s stepmother, [Ms A].

4. On 12 August 2016 an objections officer allowed Mr Shurtleff’s objection.  The objections officer set aside the previous decision and decided that both Miss Brabin and Mr Shurtleff had 0% care of [Child 1] and applied this decision from 11 July 2015. In addition, the objections officer found that Miss Brabin incorrectly registered a case against Mr Shurtleff for [Child 1]. 

5. On 26 March 2021, Miss Brabin requested a review of the objections officer’s decision by application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal).

6. A hearing was convened on 7 June 2021.  Miss Brabin attended by conference telephone and gave her oral evidence to the tribunal on affirmation. Mr Shurtleff did not answer the tribunal’s call.  The tribunal is satisfied that Mr Shurtleff was invited in writing to participate in the hearing of the review and he was also sent an SMS reminder. In addition, Mr Shurtleff was aware of the review as he had spoken to the tribunal registry.

7. The tribunal finds in these circumstances that Mr Shurtleff failed to attend the hearing that he had reasonable notice of and in these circumstances, the tribunal may proceed with the review in the absence of Mr Shurtleff: paragraph 40(1)(b) of the Administrative Appeals Tribunal Act 1975. 

8. At hearing Miss Brabin confirmed receipt of documents provided by the Child Support Agency numbered 1 to 285.  

9. During the hearing Miss Brabin provided a further document which consisted of three pages.  A copy of the additional document (A1–3) was provided to the Child Support Agency and Mr Shurtleff following the hearing.

ISSUES

10.The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

11.The issues which arise in this case are what was the pattern of care, and the likely pattern of care thereafter, when Miss Brabin lodged her assessment application.

CONSIDERATION

12.  Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act.  Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The tribunal’s task on review is the same and is to stand in the shoes of the original decision-maker.

13.  The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “… such period … as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period.  The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will apply unless or until a further change of care is notified and accepted).

14.  The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act). 

1. The child support assessment application was accepted by the Child Support Agency on the basis that Miss Brabin had sole care of the child [Child 1], from her date of birth on 11 July 2015.

2. As detailed above, Mr Shurtleff’s position included that Miss Brabin did not have care of [Child 1] at all and neither did he as he was incarcerated at that time. Rather, [Child 1] was in the care of Miss Brabin’s stepmother, [Ms A].

3. On 16 June 2016, Mr Shurtleff provided the Child Support Agency with an Interim Accommodation Order dated 26 August 2015 detailing that [Child 1] is to be placed with [Ms A] until a further order. A further hearing was scheduled for 4 November 2015. On 20 June 2016, further correspondence between the Child Support Agency and Mr Shurtleff’s representative indicate that there was a further hearing on 1 June 2016 and the matter had been adjourned to September 2016 with [Child 1] remaining in the care of Ms [Ms A]. According to the notes, at that time Miss Brabin was having contact twice a fortnight with [Child 1], which was overnight contact.

4. The Child Support Agency’s records indicate that on [date] June 2016 Miss Brabin confirmed that she had another baby two days earlier and that [Child 1] is with Ms [Ms A]. From 8 September 2016 [Child 1] will be back with her full time. She is having seven days of daily access with [Child 1] including overnight contact.

5. At the hearing, Miss Brabin’s evidence included the following:

19.1.Before September 2016, she was living with [Ms A] and [Child 1].

19.2.She would pay for all of [Child 1]’s needs. She would take care of [Child 1] but this was required to be supervised care.

19.3.Back then she was not making the best decisions in life so the Accommodation Order was probably called for.

19.4.She is not disputing that there was an Interim Accommodation Order. It had to be reviewed in court in September 2016. In the meantime, there were a number of conditions placed on her that she had to address before being awarded care of [Child 1]. The Court said that she could have [Child 1] a minimum of two nights a fortnight.

19.5.She cannot remember when she moved out of [Ms A]’s house but it was probably about two weeks before September 2016.

19.6.In reality she was caring for [Child 1] five out of seven days per week.

1. There was no further documentary evidence before the tribunal in regard to Miss Brabin’s submissions.

2. The tribunal notes that the papers show a child support assessment was subsequently first accepted and registered from 28 September 2016 which is consistent with the evidence before it.

3. Having considered all of the evidence before it, the tribunal finds that the objections officer correctly calculated the care of [Child 1] as 0% for both Miss Brabin and Mr Shurtleff from 11 July 2015. Even though Miss Brabin was living with Ms [Ms A] there is insufficient evidence before the tribunal to be able to be satisfied that the care percentage should be different from 0%. The tribunal considered that despite Miss Brabin living with her step mother and [Child 1], the Interim Accommodation Order suggest strongly that the mother was not in a position to provide day to day care for the child at the time in question. Further, the Tribunal does not accept the Miss Brabin’s evidence that she was in fact caring for the child and meeting all of her expenses because it is not consistent with her statement at the time of the objection decision and no conclusive evidence was provided for her assertions.

23.  As the tribunal has found that neither parent had care of the child when Miss Brabin made her application for a child support assessment on March 2016, the decision to refuse her application for a child support assessment on that day was correct.

24.  Because the Tribunal concurs with the decision of the objections officer it does not need to consider section 95N of the Registration and Collection Act in relation to Miss Brabin’s application to the Tribunal not being lodged until 26 March 2021 which is more than 28 days after being notified of the objections officer’s decision. For the sake of completeness, the tribunal notes that the additional document provided by Miss Brabin at the hearing relating to section 95N.

DECISION

The decision under review is affirmed.