Depasquale and Child Support Registrar (Child support)

[2019] AATA 4874

Depasquale and Child Support Registrar (Child support) [2019] AATA 4874 (20 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016619

APPLICANT:  Mr Depasquale

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member R King

DECISION DATE:  20 September 2019

DECISION:

The Tribunal decides to set aside the objection decision under review and substitute a new decision that, the care percentage for [Child 1] be set at 0% to Miss [A] and 0% to Mr Depasquale with effect from 31 July 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether a child support terminating event had occurred – decision under review set aside and a new decision substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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 Depasquale and Miss [A] are the parents of [Child 1], born [March] 2004. Prior to 19 January 2019, the Child Support Agency (CSA) had assessed [Child 1]’s care as 100% with Miss [A] and 0% with Mr Depasquale.  Mr Depasquale paid Miss [A] child support in accordance with this determination and determinations regarding his adjusted income.

2. On 22 November 2019, the Family Assistance Office advised the CSA that [Child 1] had ceased to be in the care of Miss [A].  The CSA accepted this advice and, on 19 January 2019, allocated care for [Child 1] as 0% to Ms [B] and 0% to Mr [C], with effect from 14 November 2018.  On 15 February 2019, Mr Depasquale contacted the CSA and lodged an objection to the new care allocation.  Mr Depasquale told the CSA that he had received information that [Child 1] had left the care of his mother and had been living with an aunt from around August 2018.

3. On 26 April 2019, an objections officer decided that care for [Child 1] had been correctly recorded.  The objections officer was unable to contact Miss [A] but contacted [Child 1]’s aunt, who advised that [Child 1] was in the care of his uncle and that she did not know when that arrangement commenced.  The objections officer was unable to contact [Child 1]’s uncle.  The objections officer was not satisfied that there was sufficient evidence to displace the advice from the Family Assistance Office that [Child 1] had left Miss [A]’s care on 14 November 2018.

4. On 28 May 2019, Mr Depasquale applied to the Tribunal for review. The Tribunal wrote to Miss [A], advising her of Mr Depasquale’s application and inviting her to apply to be added as a party.  Miss [A] did not respond to this letter and could not be reached by telephone.  She was therefore not added as a party.

5. The Tribunal conducted a hearing on 26 August 2019.  Mr Depasquale participated by conference telephone and gave sworn evidence.

6. The Tribunal deferred a decision to enable Mr Depasquale to provide further evidence.

ISSUES

1. The statutory provisions relevant to this review are in the Child Support (Assessment) Act 1989 (the Act).  Paragraph 54F of the Act is of particular relevance to this application.  Guidelines for application of the law are set out in the Child Support Guide (the Guide).  The Tribunal is not bound by the Guide but for the sake of consistency in decision-making follows the guidelines unless it is satisfied that the proper application of the law requires otherwise.

2. By way of summary of the relevant law, a percentage of care determination must be revoked when the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child, but only if there are implications for the responsible person’s cost percentage. The date of effect of a change of care percentage depends on when the CSA became aware of the change of actual care percentage and whether the care percentage of the responsible person increased or decreased.

3. The issues which arise in this case are:

   ·       Whether there was a change in Miss [A]’s actual care percentage for [Child 1] and; if so,

   ·       When the change occurred, and the magnitude and direction of the change; and

   ·       When the CSA was notified or became aware of the change.

CONSIDERATION

Issue 1

1. Mr Depasquale told the Tribunal that [Child 1] is now living with him and has told him that he left his mother’s care prior to November 2018.  He also said that he has spoken with Miss [A] recently and that she can confirm that [Child 1] left her care prior to November 2018. 

2. The Tribunal attempted to contact Miss [A], using the number provided by Mr Depasquale, but was unsuccessful.  The Tribunal advised Mr Depasquale that it would accept written evidence, in the form of a statutory declaration, from [Child 1].  Mr Depasquale subsequently provided the Tribunal with a statutory declaration by [Child 1], that had been properly declared on 9 September 2019 and witnessed by a Justice of the Peace.  In this declaration, [Child 1] stated:  “I moved to Sydney during 2017 and moved in with my mum for two semesters and then stayed with my auntie and uncle at the time with her kids around July 2018 and I was there until 2019 when I moved back in with my dad”.

3. The Tribunal notes that there is some vagueness around the dates and some inconsistency between the sworn evidence provided by [Child 1] and the evidence provided by his aunt to the objections officer, to the effect that she and [Child 1]’s uncle were living separately and that [Child 1] was living with his uncle.

4. However, [Child 1]’s evidence has the merit of being sworn and there is consistency between the dates in his declaration and the school term dates in New South Wales.  The evidence suggests that it was [Child 1] who made decisions about changes in his living arrangements and he is probably the person who is best placed to know where he was living and when.  It is possible that his aunt and uncle were living together when he moved in with them but separated at some time during 2018 and that [Child 1] stayed with his uncle until moving back to [City 1] to live with his father.

Issue 2

1. The Tribunal is satisfied that [Child 1] had left the care of his mother by the beginning of August 2018 and sets 1 August 2018 as the date of change of care.

2. It follows that, from this date, Miss [A] had 0% of [Child 1]’s care.  The Tribunal is satisfied that there were implications for the cost percentage to be used when determining Mr Depasquale’s child support liability.

3. Pursuant to subsection 54F(1) of the Act, the Tribunal revokes the determination of care percentage that was in place on 1 August 2018.

Issue 3

1. The evidence indicates that the CSA first became aware of a change in [Child 1]’s care on 22 November 2018.  The Tribunal has found that the actual change of care was on 1 August 2018, which means that the CSA became aware of the change more than 28 days after the actual change.

2. As the change of care was a reduction in Miss [A]’s percentage of care, and she was the responsible person, sub-paragraph 54F(3)(b)(ii) of the Act applies.  Pursuant to sub-paragraph 54F(3)(b)(ii), the date of effect of the care percentage change is the day before the actual change in care, which is 31 July 2018.

DECISION

The Tribunal decides to set aside the objection decision under review and substitute a new decision that, the care percentage for [Child 1] be set at 0% to Miss [A] and 0% to Mr Depasquale with effect from 31 July 2018.