Foden and Child Support Registrar (Child support)

[2020] AATA 264

Foden and Child Support Registrar (Child support) [2020] AATA 264 (22 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC017726

APPLICANT:  Mr Foden

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Kennedy

DECISION DATE:  22 January 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – insufficient evidence that original decision was incorrect – decision under review affirmed

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

1. Mr Foden and Ms [A] are the parents of [Child 1] and [Child 2].  Prior to 20 November 2018, child support for [Child 1] and [Child 2] was calculated on the bases that Ms [A] had 100% care of the children.  On 20 November 2018, the Child Support Registrar received information from the Family Assistance Office indicating that a new care determination had been made reflecting 65% care to Ms [A] and 35% care to Mr Foden, and put that determination into effect from 6 October 2018 for child support purposes.

2. Mr Foden objected to the care percentage determination on 3 December 2018.  On 3 December 2018, an objection officer disallowed the objection noting that no supporting evidence had been provided.  It appears this decision was not notified to Mr Foden, despite Mr Foden contacting the Department to enquire about its progress, until 2 April 2019.

3. Mr Foden applied to the Tribunal for review on 30 October 2019.

4. Ms [A] indicated to the Tribunal’s registry that she did not wish to participate in the review.  Mr Foden indicated that he wished to withdraw his application for review, but was informed of the legislative requirement that any such withdrawal must be in writing.  No written advice of withdrawal has been received.

5. Mr Foden was notified of the hearing today, but did not answer the telephone when called. In these circumstances I may deal with the review in Mr [Foden’s] absence: paragraph 40(1)(b) of the Administrative Appeals Tribunal Act 1975.

6. I have decided to proceed to complete the review in circumstances where the appropriate decision in light of the absence of any supporting documentary evidence from Mr Foden is clear, there is benefit in providing finality to this matter, and neither Mr Foden nor Ms [A] appear to have any interest in the outcome.

CONSIDERATION

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Child Support (Assessment) Act 1989 (the Act).

2. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.  If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

3. In relation to both requirements, it is clear that the Secretary was notified that the existing care determination no longer reflected what was actually taking place in relation to the children’s care.  As to when the Secretary was notified of that information, no corroborating records have been provided to the Tribunal, but by inference I conclude that it was within 28 days of the date accepted to be the date the care changed (6 October 2018), as the objection officer has given effect to the care change for child support purposes from that date.

4. I have no evidence of any investigation or conversations with the parents that took place within the Family Assistance Office, but have noted that during the objections process the objections officer spoke with Mr Foden who said that he had 50% care of the children from 22 August 2018, while Ms [A] said it was 65%:35% care from a date sometime at the end of August.  Both parents indicated that the change to the care arrangement had arisen from a new parenting plan.

5. Both parents agreed to provide evidence to support their positions, but neither parent did so.  The care plan referred to is not before me.

6. In circumstances where no supporting evidence, including the care plan referred to by both parents, has been provided, I consider that the objections officer’s approach in not disturbing the original decision is correct.  I have insufficient evidence to conclude that the determination put in place by the Family Assistance Office is incorrect, either in relation to the percentages of care or the date that care changed, and it is clear that the state of the evidence will not be improved in these proceedings.

7. As such, I accept that the existing care determination should be revoked, and replaced with a new care determination of 65% to Ms [A] and 35% to Mr Foden with effect from 6 October 2018 (pursuant to section 50 of the Assessment Act).

DECISION

The decision under review is affirmed.