CONFIDENTIAL 1 and and CONFIDENTIAL 2

[2010] AATA 93

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 93

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2953

GENERAL ADMINISTRATIVE   DIVISION		)
Re		CONFIDENTIAL 1

Applicant

And SOCIAL SECURITY APPEALS TRIBUNAL

Respondent

And CONFIDENTIAL 2

Joined Party

DECISION

Tribunal Mr B H Pascoe, Senior Member

Date9 February 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) B H Pascoe

Senior Member

It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth)
CHILD SUPPORT – percentage of care of child – decision affirmed.

Child Support (Assessment Act) 1989

REASONS FOR DECISION

9 February 2010 B H Pascoe, Senior Member        

1.      This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) which affirmed a decision of the Child Support Agency (the Agency) that the applicant, Confidential 1, did not have the care of the child from 17 November 2008.

2.      At the hearing Confidential 1 was unrepresented and gave evidence by telephone from Queensland.  The father, Confidential 2, as a party joined in the application appeared in person and gave evidence.  There was no representation or appearance on behalf of the SSAT or the Agency. 

3.      Prior to 17 November 2008, it had been accepted that Confidential 1 had the care of the child for 100% of the year.  The decision to change the percentage of care to nil from that date was made as a result of advice to the Agency by Confidential 2 that the child had moved into residence in his house on 15 November 2008.

4.      There was no dispute between Confidential 1 and Confidential 2 that, prior to 15 November 2008, it was appropriate for Confidential 2 to pay child support based on Confidential 1 having 100% care of the child.  Neither was there any dispute that the child transferred her belongings and mail address to the house of Confidential 2 on 15 November 2008.  However, Confidential 1 argued that the child was not in the care of Confidential 2 from that date.  Confidential 1 said that she took the child to the house on that date because she was travelling to Queensland to seek work and had arranged to store her furniture and let her house for rental from 29 November 2008.  She maintained that the child had decided to use Confidential 2’s house as a convenient and familiar place to stay and that Confidential 2 was not usually there as he stayed primarily at his partner’s residence.  Confidential 1 maintained that another residence, apparently owned by Confidential 1’s partner, was available to the child. 

5.      It was not in dispute that the child stayed at Confidential 2’s house until 21 November when she attended a “Schoolies week”, returned to the house on 29 November, left for overseas on 8 December and returned on 12 February 2009.  The child had her 18^th birthday on 31 January 2009 which was a terminating event for child support.  The effect of this is that the child spent 15 days in total at the house of Confidential 2 between 15 November 2008 and 31 January 2009.  The balance of the time, 62 days, was all schoolies week or overseas. 

6.      Confidential 1 maintained that, from 15 November 2008, she incurred all of the normal expenses of care for Sandi, paid $500 for attendance of schoolies week and provided $5,000 for the overseas trip.  She argued that, possibly excluding the 15 days at Confidential 2’s house, Sandi remained in her care for the other 62 days.  On the other hand, Confidential 2 maintained that he provided the child with the normal living requirements during her stay at his house, had purchased clothing for her prior to her going away and that she was not in the care of Confidential 1 after 15 November 2008.  He acknowledged that he stayed mainly with his partner but called at his house regularly. 

7. Sections 48 and 49 of the Child Support (Assessment) Act 1989 (the Act) require a calculation of the percentage of care of the child that a person is likely to have during the period. A note to s 48(2) states that:

Generally, a person’s percentage of care for a child is worked out based on the number of nights that the child is likely to be in the care of the person during the care period.

While this note is not binding on a decision maker and there is a clear discretion in assessing percentage of care, it is a prima facie method of assessment. 

8.      The realistic position of the child from 15 November 2008 was that she was not in the care, in the sense of responsibility, nurture and oversight, of any other person.  She was away from any domestic living arrangement for the bulk of the period in dispute.  Confidential 1, while she may have incurred some costs in assisting the child financially at schoolies week and for her overseas trip, was out of the State for the major part of time.  During the 15 days at the house of Confidential 2, he may have had some limited oversight of the child living requirements but it is difficult to say that he was responsible for her care. 

9.      It is clear that Confidential 2 is not seeking any child support payments from Confidential 1 but is strong in his view that he should not be required to pay any amount to Confidential 1 in relation to the period after 15 November 2008.  Confidential 1 is clearly of the view that, with the possible exception of the 15 days, the child was not in the care of Confidential 2 and remained in her care during the relevant period. 

10.     The primary question for resolution is whether the child was in the care of Confidential 1 after 15 November 2008.  It is clear from the evidence that Confidential 1 no longer had a house in which the child could reside.  Confidential 1 was in another state and was in no position to be responsible for the day-to-day welfare of the child.  The only person in that position for a part of the period was Confidential 2.  It follows that the decision to calculate the percentage of care of the child for Confidential 1 at 0% from 17 November 2008 being the date of advice of the changed arrangements to the Agency should be affirmed. 

I certify that the ten [10] preceding paragraphs are a true copy of the reasons for the decision herein of Mr B H Pascoe.

(sgd) Mya Anumarlapudi
  Clerk

Date/s of Hearing  14 December 2009

Date of Decision  9 February 2010
Advocate for the applicant           Self Represented
Joined Party  Confidential 2
Advocate for the respondent        No appearance