Caple and Child Support Registrar (Child support)

[2021] AATA 5193

Caple and Child Support Registrar (Child support) [2021] AATA 5193 (7 December 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022252

APPLICANT:  Ms Caple

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Presiding Member L Rieper

Member S Trotter

DECISION DATE:  7 December 2021

DECISION:

The decision under review is set aside and a decision substituted that there was no change of care on 1 January 2019 and that Ms Caple continued to have 97% and [Mr A] continued to have 3% care of [the child].

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – 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. Ms Caple and [Mr A] are the parents of [the child] in respect of whom there has been a child support assessment in place since March 2007.

2. On 22 May 2021 Services Australia – Child Support (Child Support) determined that from 1 January 2019 the care of [the child] was to be recorded as 22% to [Mr A] and 78% to Ms Caple.

3. On 31 May 2021 Ms Caple lodged an objection to that decision.

4. The decision was internally reviewed by Child Support and on 26 July 2021 the objection was disallowed.

5. On 8 September 2021, Ms Caple applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal seeking an independent review of the objection decision. The application was heard on 7 December 2021.  Ms Caple attended the hearing by telephone and gave sworn evidence.  By letter of 14 September 2021, the Tribunal invited [Mr A] to be made a party to the proceedings as his interests may be affected by the Tribunal’s decision.  No response was received from [Mr A] to the Tribunal’s invitation and he was not added as a party. [Mr A] did not attend the hearing nor did a representative of the Child Support Registrar.

6. The Tribunal had before it a Statement and Documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 in respect of the application. 

ISSUES

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the children. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage.

3. The issues for the Tribunal to determine in this case are:

   ·whether the existing determinations of percentage of care should be revoked and if so, from when should they be revoked; and

   ·whether new determinations of the percentage of care should be made; and, if so, what is the percentage of care under the new determination/s and from when should they apply.

CONSIDERATION

1. Prior to 20 May 2021 Child Support had recorded that Ms Caple had care of [the child] for 353 nights per year (or 97%) and [Mr A] had 12 nights of care per year (or 3%).

2. On 20 May 2021 [Mr A] notified Child Support that there had been a change in care arrangements for [the child] from 1 January 2019 and that he had care every second weekend and half of the school holidays.  Child Support determined that this equated to 283 nights of care (78%) to Ms Caple and 82 nights of care (22%) to [Mr A].

3. Due to error on the part of Child Support Ms Caple was not consulted about the reported change in care prior to Child Support issuing its determination on 22 May 2021.

4. On 31 May 2021 Ms Caple notified Child Support that she objected to the change in the care percentages.  She advised that [Mr A] had had no overnight care of [the child] until 1 May 2021 when she notified Child Support of a change in care.  The Tribunal notes that Child Support has accepted that advice of a change of care and that from 1 May 2021 Ms Caple is recognised as having 93% care and [Mr A] has 7% care.  That decision is not before this Tribunal for review.

5. After Ms Caple objected, she provided two witness statements dated 31 May 2021 from friends, [Ms B] and [Ms C], each of whom advised that [Mr A] had only had overnight care of [the child] from April 2021.

6. On 23 July 2021 a representative of Child Support spoke with [Mr A] by telephone and advised him of the objection and the process that would follow.  He was advised that he could provide further evidence and according to Child Support’s notes he said that he intended to provide a statement from his parents to confirm that [the child] had been living with him for 1-2 nights per week from 1 January 2019.  No such statement appears in Child Support’s records and its records indicate that the statement was never received.

7. The Tribunal is left with only a bare assertion from [Mr A] that he had care of [the child] prior to 1 May 2021.  He was given an opportunity by Child Support to provide evidence of the care which he did not take up.  He was also invited to participate in these proceedings but he declined. 

8. By contrast Ms Caple attended the Tribunal hearing and gave sworn evidence and she provided Child Support with written statements which support her account.  The evidence is therefore entirely in Ms Caple’s favour. 

9. The Tribunal accepts Ms Caple’s evidence and is satisfied that there was no change of care and therefore the existing determinations of percentage of care should not be revoked.

10. As the Tribunal has reached a different conclusion to that of the objections officer it will set aside the decision under review.

DECISION

The decision under review is set aside and a decision substituted that there was no change of care on 1 January 2019 and that Ms Caple continued to have 97% and [Mr A] continued to have 3% care of [the child].