Guy and Martin (Child support)

[2024] AATA 2539

Guy and Martin (Child support) [2024] AATA 2539 (4 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/MC027693

APPLICANT:  Ms Guy

OTHER PARTIES:  Child Support Registrar

Mr Martin

TRIBUNAL:Senior Member S De Bono

DECISION DATE:  4 June 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – percentage of care – one-off block of 100% care for one month – existing percentage of care determinations revoked – new care determinations made – 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

BACKGROUND

1. Ms Guy and Mr Martin are the parents of [Child 1] and [Child 2] (‘the children’). There has been a child support assessment in place from 25 November 2017. Services Australia (Child Support) has collected child support from 29 August 2018. Mr Martin has been the parent liable to pay child support. Prior to 7 November 2023 the care recorded for [Child 2] and [Child 1] was 51% to Ms Guy and 49% to Mr Martin which is shared care.

2. On 18 November 2023 Mr Martin notified Child Support that there had been a change to the care arrangements for [Child 2] and [Child 1] and he now had 100% care of both children from 7 November 2023.  On 13 February 2024 Child Support made a new care determination in respect of [Child 2] and [Child 1] which determined both children were in Mr Martin’s 100% care from 7 November 2023.

3. On 20 February 2024 Ms Guy lodged an objection to this decision. On 20 March 2024 an objection officer disallowed Ms Guy’s objection.

4. On 25 March 2024 Ms Guy applied to the Social Service and Child Support Division of the Administrative Appeals Tribunal for an independent review of this decision. On 4 June 2024 Ms Guy gave evidence under affirmation and Mr Martin gave evidence under affirmation during a telephone hearing. The Tribunal had before it a bundle of documents (198 pages – referred to as the hearing papers) which had been provided to both parties prior to the hearing.[1] Relevant aspects of the material and evidence will be referred to in the Tribunal’s consideration of the issues to be decided.

ISSUES

[1] These are the subsection 37(1) documents in accordance with the Administrative Appeals Tribunal Act 1975.

1. The issues which arise in this case are:

   ·      Whether the existing care percentages for [Child 1] and [Child 2] should be revoked; and if so,

   ·      What is the date of the new care determination and what are the new percentages of care for each parent?

LAW AND CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the Tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise, as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2] 

   [2] [1979] AATA 179.

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. Relevantly, a determination must be made if an existing care percentage determination is revoked.

Issue 1 – Should the existing care determination of 51% care to Ms Guy and 49% care to Mr Martin be revoked?

1. An existing care determination must be revoked if there is a change to the existing care of the children.

2. Ms Guy said on 7 November 2023 the children became worried that Ms Guy was at risk of taking her own life. Mr Martin said he was called by the Department of Fairness, Families and Housing – Child Protection for him to take the girls for a period of time, which he did.

3. Ms Guy did not dispute that Mr Martin had the girls in his 100% care from 7 November 2023. But she argued that this was not an on-going change to the pattern of care for the children, but rather a temporary change to the care arrangements for the children because she was unwell and had to undergo a mental health assessment in hospital. Ms Guy said she was cleared for discharge home on the same day.

4. Mr Martin said when he commenced full-time care of the children, Ms Guy was required to undertake random drug screening. Mr Martin said at the time he notified Child Support about his increased care on 18 November 2023 he still had 100% care of the children and he was not sure when Child Protection would approve the children returning to Ms Guy’s care. When he notified Child Support about the change to the care of the children he did this because he was not sure how long he would maintain 100% care of the children.

5. Ms Guy said the children returned to her care when they felt safe to do so, Ms Guy and Mr Martin agreed this was around 10 December 2023. Ms Guy was of the view that the change to the care of the children was only a temporary change to the care and was not an ongoing care change.

6. Mr Martin said that he was contacted weekly by Child Protection, and each week he was informed that Ms Guy had not met the requirements for the children to be returned to her care following drug testing. He said he was contacted in December 2023 by Child Protection and told the children could re-commence care with Ms Guy. Both parents agreed that Mr Martin had 100% care of the children for about a month.

7. The Guide at 2.2.2 provides how care may be determined if there is a one-off block of 100% care. The Guide suggests:

   Where a parent or non-parent carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (sections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, a party may notify the Registrar of the change in care, and the Registrar will consider whether to make a new care percentage determination.

   The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.

   Example: Jason and Anita have one child, Robyn. Robyn usually lives with Jason 100% of the time. Jason needs to go to hospital for 3 weeks for an operation, and may require a further period of intensive rehabilitation where he will not be able to care for Robyn. Anita will look after Robyn during this time. The Registrar makes a one-off block of 100% care decision. When Robyn returns to Jason's care, Jason contacts Services Australia and the Registrar makes a new care decision based on the ongoing care of each parent.

8. A care percentage determination can be revoked under section 54F, 54G or 54H of the Act. Section 54G will apply in circumstances where a parent who was to have at least regular care of the child under the existing care determination, now has no care or less than regular care if certain other conditions are met.

9. If a person’s existing percentage of care for a child is revoked under any of sections 54F, 54G or 54H, a new care determination must be made under section 49 of the Act (if the person has no pattern of care) or section 50 of the Act (if the person has a pattern of care).

10. Pursuant to those sections, it is necessary to determine the pattern of care of the child the person has had or is likely to have during such period (the care period) as the Registrar (or the Tribunal standing in place of the Registrar) considers to be appropriate having regard to all the circumstances.

11. The consequences of a care period being a month is that this affects Ms Guy’s entitlements to social security payments such as parenting payment and family tax benefit. The Tribunal needs to consider whether the change of care was a temporary change to the care of the children. Given the children returned to Ms Guy’s care around 10 December 2023 the Tribunal accepts that the care period is a shorter period than the period which may usually apply. However, the Tribunal accepts Mr Martin’s submission that at the time the children came into his 100% care he was not sure how long the care period would be.

12. Accordingly, the Tribunal is satisfied that there was a change to the existing care of the children such that the existing care determination of 51% care to Ms Guy and 49% care to Mr Martin should be revoked.

13. The Tribunal is satisfied that the existing care determinations are revoked in accordance with subsection 54G(1) of the Assessment Act. Subsection 54G(2) provides the revocation of each care determination occurs on the day before the care changed. In this case Ms Guy ceased to have 51% care of the children from 6 November 2023. Accordingly, the existing care determination of 51% care to Ms Guy and 49% care to Mr Martin is revoked from 6 November 2023.

Issue 2 – What is the date of the new care determination and what are the new percentages of care for each parent?

1. Once an existing care determination has been revoked a new care determination must be made. A new care determination is made in accordance with section 49 of the Assessment Act in which Ms Guy has 0% care and Mr Martin has 100% care which applies to the administrative assessment of child support from 7 November 2023.

2. As the Tribunal’s decision is the same as the objections officer’s decision, the decision of Child Support is affirmed.

DECISION

The decision under review is affirmed.