Custer and Willard (Child support)

[2022] AATA 353

Custer and Willard (Child support) [2022] AATA 353 (24 January 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022409

APPLICANT:  Mr Custer

OTHER PARTIES:  Child Support Registrar

Ms Willard

TRIBUNAL:Member L Rieper

DECISION DATE:  24 January 2022

DECISION:

The decision under review is affirmed.

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 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. Mr Custer and Ms Willard are the parents of [Child 1] (born in October 2005) in respect of whom there was a child support assessment in place from 12 October 2006.

2. Mr Custer has sought review of an objection decision made by Services Australia – Child Support (Child Support) of 13 July 2021 allowing an objection to a decision made on 28 May 2021 that neither parent had care of [Child 1] from 5 February 2021.  The objection decision was that Ms Willard had continued to have 99% care of [Child 1] and Mr Custer had 1% care from 1 January 2019.

3. On 27 September 2021, Mr Custer 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 24 January 2022. Mr Custer and Ms Willard both attended the hearing by telephone and gave sworn evidence. No representative of the Child Support Registrar attended the hearing. 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. Care is generally calculated over a “care period”, which is a period that the Child Support Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). Child Support’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. Mr Custer initially advised Child Support of a change of care on 8 March 2021 (see folio 19).  At that time he advised that [Child 1’s] grandmother had had 100% care of [Child 1] from 5 February 2021.

3. Mr Custer told the Tribunal that he now accepts care did not change on 5 February 2021, but he disagrees with the objection decision because he says that from 5 May 2021 neither parent had care of [Child 1] as he was living with his grandmother from that date.

4. There is still disagreement between Mr Custer and Ms Willard as to when there was a change of care, although in the months leading up to 5 May 2021 both seem to accept that [Child 1’s] grandmother had some care of [Child 1], seemingly on an ad hoc basis. The Tribunal is satisfied from the evidence that during that time there was no pattern of care that would support a finding that there had been a change of care.

5. On 6 May 2021 [Child 1’s] grandparents advised of a change of care from 5 May 2021 (see email dated 6 May 2021 at folio 36). Mr Custer also advised Child Support of the change of care on 15 July 2021 (see folio 95) and Ms Willard advised Child Support on 26 July 2021 that [Child 1] no longer lived with her (see folio 98) although at one point during the hearing she said the change of care occurred in August 2021. The Tribunal was unable to obtain clear evidence from Ms Willard as to when the change of care occurred.

6. On 26 July 2021 Child Support determined again not to revoke the existing care percentages that Ms Willard had 99% care of [Child 1] and Mr Custer had 1% care. Although Mr Custer said he had attempted to get all care change decisions reviewed, there is no indication in Child Support’s papers that there has been an objection recorded in relation to the 26 July 2021 decision.

7. On 16 October 2021 Ms Willard advised Centrelink that [Child 1] had been living independently from 10 October 2021 (see folio 174).

8. On 30 October 2021 Child Support determined that child support was not payable from 10 October 2021 due to the change in care arrangements (folios 178–187).

9. In summary, the Tribunal, having considered the evidence, is satisfied that there was no established change to the pattern of care which would support the Tribunal finding that there was a change of care on 5 May 2021.  Child Support has issued subsequent decisions in respect of the change of care notifications after 5 May 2021.  They have not been reviewed by an objections officer and do not fall within the jurisdiction of this Tribunal.

10. The Tribunal is therefore satisfied that the decision under review is correct.

DECISION

The decision under review is affirmed.