Confidential and Social Security Appeals Tribunal and Another

[2009] AATA 975

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 975

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1420

GENERAL ADMINSTRATIVE DIVISION		)
Re		Confidential

Applicant

And Social Security Appeals Tribunal and Another

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date21 December 2009  

PlaceSydney

Decision The decision under review is affirmed.

.................... [sgd]............................

Ms N Bell, Senior Member  

It is noted that the publication of this decision is approved by the Administrative Decisions Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988

CATCHWORDS – CHILD SUPPORT – child support assessment – percentage of care – regular care – pattern of care

Child Support (Registration and Collection) Act 1988

Child Support (Assessment) Act 1989

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      

The Applicant, whom I will not name pursuant to section 110X of the

Child Support (Registration and Collection) Act 1988

, is the father of the child “E”.  The mother of E is the Second Respondent to this application.

2.      The Applicant seeks a review of the decision of the Social Security Appeals Tribunal of 18 March 2009 to set aside the decision of an Objection Officer of the Child Support Agency of 10 November 2008. The Objection Officer’s decision was to continue the Second Respondent’s child care percentage at 77% in relation to the care of E. The SSAT remitted the matter with a direction that in the twelve month period beginning 1 July 2008, the Applicant had a care percentage of less than 14%.

3.      The following matters are not in dispute:

·a care assessment of 23% care by the Applicant had been made by the Child Support Agency based on a Family Court order of 7 February 2008, effective from 7 May 2008.  The Applicant had been paying child support based on that assessment;

·on 29 July 2008 the Second Respondent advised the Child Support Agency that the Applicant had not collected E on the days specified in the Family Court’s order and had not had the care of E since May 2008;

·the Second Respondent had specified a Police Station as the place for collection of E, but the Applicant had objected to that and had refused to collect E;

·from 1 January 2009 care arrangements pursuant to the Family Court order had resumed and the Applicant, having ascertained the Second Respondent’s address, was now collecting E from there;

·action on this issue in the Family Court was initiated but then withdrawn after the resumption of the care arrangements pursuant to the Family Court order; and

·the Applicant had no care of E from May 2008 until 1 January 2009.

4. Section 52 of the Child Support (Assessment) Act 1989 provides for a determination as to the respective percentages of care to be made by the Registrar where, among other things, there is an agreement or order in place about the percentage care of the child and one parent does not agree that the actual percentage care of the child is in accordance with that agreement or order; there is a determination in place about the amount to be paid; the determination results in an inequitable level of financial support; and a parent is seeking agreement or a court order or enforcement of a court order about the care of the child and the parent applies for a new determination.

5.      However, section 53 of the Act provides for a determination to be made by the Registrar where a parent was to have regular care of a child under an agreement or order (“regular care” is defined in section 5(2) as between 14% and 24% of the care of a child) and the parent has less than regular care despite the child being made available by the other parent. I note that section 53(8) provides that if a determination may be made under both section 52 and section 53, then that determination must be made under section 53 and not under section 52.

6.      The undisputed facts set out above establish that E was made available by the Second Respondent, albeit at a place objected to by the Applicant. The reasons for this disagreement are irrelevant to this application, although it is not disputed that the Second Respondent had moved from her previous place of residence and did not wish to advise the Applicant of her new address.

7.      

The Applicant’s percentage of care had been assessed at 23% by the Objection Officer, being 85 days in a year. 14% of care is approximately 50 days in a year. From 1 July 2008 to 31 December 2008, the Applicant had no care of E.  Although the Applicant provided details and diary notes to show that he had 3 days’ care of E additional to the arrangements in the order, a detailed record of the dates on which he had care, prepared by the Second Respondent, shows that the Applicant only had 39 days’ care of E in the period 1 July 2008 to 30 June 2009.  This is less than 14% and therefore I find that the Applicant had less than regular care of E, within the meaning of the Act, during the period 1 July 2008 to

30 June 2009.

8.      It follows that, in accordance with section 53(8), any determination must be made under section 53.

9.      Section 53 also provides for the date on which any determination made under the section should commence and specifically provides that if a parent does not notify the Registrar within a reasonable period that the other parent had no care, then any determination will not take effect any earlier than the date of the determination. Under section 53(5)(a) if a parent never established a pattern of care in accordance with an agreement or order, the determination will commence on the day on which the court order was made.

10.     

I note that the Applicant ceased to have regular care of E in May 2008, but the Second Respondent did not notify the Registrar until 29 July 2009. I also note that steps were being taken by both the Applicant and the Second Respondent to have their disagreement about the collection place dealt with by the Family Court.

I consider that the delay caused by this was understandable and that the Second Respondent did, in the circumstances, notify the Registrar within a reasonable period.

Decision

11.     The Tribunal affirms the decision under review.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell

Signed:..........................[sgd]...............................................
  Associate: Lloyd Doherty

Date/s of Hearing  4 September 2009
Date of Decision  21 December 2009
Date of written reasons  21 December 2009     
Representative for the Applicant  Self-represented
Representative for the First Respondent          No appearance
Representative for the Second Respondent     Self-represented