Hepburn and Liddell (Child support)

[2020] AATA 1477

Hepburn and Liddell (Child support) [2020] AATA 1477 (27 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC018111

APPLICANT:  Mr Hepburn

OTHER PARTIES:  Child Support Registrar

Ms Liddell

TRIBUNAL:Member A Byers

DECISION DATE:  27 February 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 –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. Mr Hepburn and Ms Liddell are the parents of [Child 1] and this matter relates to his care. 

2. On 23 September 2019 Mr Hepburn contacted the Child Support Agency (CSA) to say he was informed by a third party that [Child 1] was residing with Mr Hepburn’s [Relative 1] [Ms A] from 1 March 2019.  At the time of contact the CSA was calculating Mr Hepburn’s child support liability on the basis that Ms Liddell had 100% of [Child 1]’ care. 

1. On 22 October 2019 the CSA decided that, from 1 March 2019, both Mr Hepburn and Ms Liddell had 0% of [Child 1]’ care (which gave rise to a terminating event).

2. On 19 December 2019 an objections officer allowed Ms Liddell’s objection and found that no change of care had occurred. 

3. Mr Hepburn sought review of this decision by the Tribunal on 24 December 2019 and the application was heard by conference telephone on 27 February 2020 in Brisbane.   

4. At hearing I accepted into evidence the subsection 37(1) documents provided by the CSA, comprising folios 1 to 52 (marked Exhibit 1).  The parties gave sworn evidence by conference telephone.   The Child Support Registrar was not present.  

CONSIDERATION

1. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Child Support (Assessment) Act 1989.[1]  Section 49 applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care.  As noted, prior to Mr Hepburn’s contact on 23 September 2019 the care determinations (under sections 49 and 50) in place were that he had 0% and Ms Liddell 100% of [Child 1]’ care.   

   [1]  All legislative references are to this Act unless otherwise stated.

2. Before a determination under section 49 or 50 can be made in relation to a person, the care determination in place for that person must be revoked.  A revocation under section 54F can occur only if the Registrar were to determine (under section 49 or 50) a different percentage of care and the person’s cost percentage would change as a result. 

3. Sections 51 and 52 apply where the person with reduced (actual) care has taken reasonable action either to ensure that a care arrangement[2] is complied with, or to make another care arrangement.  These provisions are not relevant to the present matter.   

   [2]  A care arrangement is a written agreement between parents, a parenting plan, or court order dealing with the care of a child – see section 5 and subsection 3(1) of the A New Tax System (Family Assistance) Act 1999.

10.  As noted, Mr Hepburn contacted the CSA on 23 September 2019 to say a third party informed him that [Child 1] was residing with Mr Hepburn’s [Relative 1] [Ms A] from 1 March 2019.  Mr Hepburn is recorded as advising Ms Liddell’s [Relative 2] informed him of the change.  At hearing Mr Hepburn clarified that his mother informed him of the change after she spoke with Ms Liddell’s [Relative 3].

11.  At hearing Mr Hepburn said this was “gossip” and he had no direct knowledge of, or evidence regarding, the care situation.  Mr Hepburn said he also has a text from Ms Liddell’s mother to his mother saying [Child 1] is “never at home”.

12.  Ms Liddell categorically denies there has been any change of care and asserts that [Child 1] has remained in her sole care.  There are two supporting statements in the hearing papers, one from [Child 1]’ maternal grandparent and another from Ms Liddell’s sister).  Both assert that [Child 1] has lived with Ms Liddell since his birth.

13.  Ms Liddell indicated [Child 1] is a teenager and does stay with friends on occasions.  As I explained to Mr Hepburn, this typical scenario is consistent with Ms Liddell retaining full parental care.  Parental care is typically retained if a parent supports the child financially, provides their accommodation, and makes the necessary decisions relating to their schooling, health and welfare. 

14.  Ultimately, I prefer Ms Liddell’s evidence and do not consider Mr Hepburn has established that a change of care as claimed has occurred.  Ms Liddell is in a position to know first-hand the care arrangement and her evidence is supported by referees.  Mr Hepburn on the other hand is relying on hearsay.

15.  Accordingly, I am satisfied no change of care has occurred.

DECISION

The decision under review is affirmed.