Gedson and Child Support Registrar (Child support)

[2020] AATA 4389

Gedson and Child Support Registrar (Child support) [2020] AATA 4389 (26 August 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019563

APPLICANT:  Ms Gedson

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member P Noonan

DECISION DATE:  26 August 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 in relation to the carer parent – whether the carer parent had no care of the child – existing percentage of care determination revoked and new determination made – 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. On 2 January 2020 the Registrar decided that Ms Gedson had 0% care of [the child] who is the subject of a child support assessment. Ms Gedson objected to this decision and on 16 April 2020 her objection was disallowed.

2. On 15 April 2020 Ms Gedson applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the Registrar’s decision.

3. A hearing into the matter was held on 26 August 2020. Ms Gedson spoke to the Tribunal by conference telephone and gave evidence on affirmation. The Tribunal also had reference to hearing papers compiled by the Registrar, a copy of which had been distributed to Ms Gedson prior to the hearing.

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (“the Act”).

2. It is undisputed that the child’s father was to have care of the child from 23 to 25 December 2019 and return the child to Ms Gedson at 12.30pm under prearranged care that Ms Gedson had organised with the child’s father. Ms Gedson informed the Tribunal that care was previously arranged using text messages. She did not have any records of these communications because the child’s father had blocked her access to the messaging service. She confirmed that there was no written agreement, court order or parenting plan in place at that point in time.

3. The hearing papers record that the child’s father subsequently informed the Registrar that he had 100% care of the child from 24 December 2019. Ms Gedson confirmed that the child had not been returned to her care on 25 December 2019 as she had expected. She was then forced to take legal action against the child’s father resulting in court orders being issued to give effect to a further change of care which resulted in the child being returned to her care on 9 January 2020. She noted that final court orders are now in place which provide for the child’s father to care for the child every second weekend, which was the situation prior to 24 December 2019. Ms Gedson submitted that this reflects that her care had not in fact changed and it was simply the wrong outcome that care should be reflected as 100% to the child’s father under these circumstances. The Tribunal notes however, that at the time the Registrar was informed of the change in care, the Registrar was unaware of any potential end date for the notified change in care.

4. Section 5 of the Act states that a care arrangement has the same meaning as in the Family Assistance Act. Subsection 3(1) of the A New Tax System (Family Assistance) Act 1999 sets out that a care arrangement is a written agreement, a parenting plan or a family violence order, a parenting order, a State child order or an overseas child order. The Tribunal finds that there was not a care arrangement in place with respect to the child.

5. Subsection 49(3) of the Act sets out that, where there is not a care arrangement in place, a determination as to the care of the child must be 0% where the parent has had no pattern of care for a child. As there was no defined period for this notified change in care of 100% to the child’s other parent to end, the Tribunal is satisfied that the Registrar was correct to determine 0% care to Ms Gedson under this subsection of the Act at that point in time. The Tribunal is also satisfied that the cost percentage is affected by this change in care and accordingly the Registrar was correct to revoke the existing care determination under section 54F of the Act. Subsequent care events are not relevant to this decision.

6. Section 74 of the Act requires the Registrar to immediately take such action as is necessary to take account of an event or change of circumstances that affects the annual rate of child support payable. The Tribunal is therefore satisfied that the decision under review is correct. This decision in no way affects any subsequent change of care decisions in respect to the care of the child.

DECISION

The decision under review is affirmed.