Hiang and Smibert (Child support)

[2024] AATA 2757

Hiang and Smibert (Child support) [2024] AATA 2757 (12 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027723

APPLICANT:  Mr Hiang

OTHER PARTIES:  Child Support Registrar

Ms Smibert

TRIBUNAL:Member S Letch

DECISION DATE:  12 June 2024

DECISION:

The decision under review is varied so that care for [Child 1] is to be recorded as 0% to Mr Hiang and 0% to Ms Smibert from 1 August 2023 (not 28 December 2023).

CATCHWORDS

CHILD SUPPORT – percentage of care – neither parent had care of child – child was living with her grandmother – decision under review is varied

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 theChild Support (Registration and Collection) Act 1988

REASONS FOR DECISION

1. Mr Hiang and Ms Smibert are the parents of [Child 1]. This matter concerns a decision by Child Support to record [Child 1]’s care for the purposes of a child support assessment.

2. It is convenient by way of background to set out some extracts from the objection decision dated 23 March 2024:

   DECISION UNDER REVIEW

   The decision was made to refuse to reflect the care of [Child 1] as 0% to Mr Hiang and 0% to Ms Smibert from 19 July 2022, notified on 5 October 2022.

   Mr Hiang has objected to this decision stated that [Child 1] is living independently and has applied for Youth Allowance from Centrelink on 2 January 2024.

   …

   WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION

   1. From 27 January 2021, the level of care recorded on the assessment was that Ms Smibert provided 100% and Mr Hiang 0% care for [Child 1].

   2. On 5 October 2022, Mr Hiang notified us online to advise that [Child 1] is now supporting herself from 19 July 2022.

   3. On 6 October 2022, Ms Smibert disagreed with Mr Hiang s statement that [Child 1] is self-supported. Ms Smibert stated that [Child 1] will sometimes spend some nights at Ms Smibert s mother place.

   4. On 3 November 2022, we made the decision to refuse to reflect that both Mr Hiang and Ms Smibert provide 0% care for [Child 1] from 19 July 2022.

   5. On 5 January 2024, Mr Hiang objected to this decision. We issued a letter to Ms Smibert about the objection process.

   …

   We note that the parents do not disagree that child of the assessment [Child 1] is in receipt of her own benefits.

   A terminating event happens in relation to a child if:

   -both parents of the child are not eligible carers of the child, i.e. they are determined as not having at least 35% care of the child after a change in care, and

   -there is no non-parent carer entitled to be paid child support in relation to the child (i.e. no non-parent carer is entitled to child support for the child under the child support assessment and

   -if paragraphs (a) and (b) are met because: all persons who were eligible carers of the child ceased to be eligible carers of the child, and a parent who was not an eligible carer of the child would have become an eligible carer of the child and we are notified or otherwise becomes aware of the change of care more than 26 weeks after the relevant change of care day.

   This means a terminating event occurs if we make new care percentage determinations after a change in care, neither parent of the child has at least 35% care of the child as a result of the new care percentage determinations, and there is no non-parent carer entitled to child support for the child under the child support assessment.

   Mr Hiang objected to this decision stated that [Child 1] is living independently and has applied for Youth Allowance from Centrelink on 2 January 2024.

   When we spoke to Ms Smibert about the objection, she advised that [Child 1] moved in with Ms Smibert s mum in November 2023.

   Based on the information obtained from third party records, it has been determined to us that both Mr Hiang and Ms Smibert have 0% care for [Child 1] from 28 December 2023.

   Therefore, we have made the decision to reflect that Mr Hiang and Ms Smibert provide 0% care for [Child 1] from 28 December 2023.

   The objection is part allowed.

   …

3. Mr Hiang and Ms Smibert participated in the Tribunal’s hearing by conference telephone.

4. In short, Mr Hiang told the Tribunal that he believes [Child 1] has not been in the care of her mother for “quite some time”. He says that information and dates provided to Child Support  have varied. He was led to believe from conversations with his daughters that [Child 1] was not being supported by Ms Smibert. Mr Hiang points to a text exchange with [Child 1] in around August 2023 demonstrating that she was no longer living with Ms Smibert, and that [Child 1] had indicated to him that in her application for youth allowance with Centrelink that she had moved out around mid-2023. Mr Hiang supplied a statement from [Child 1]’s older sister; Ms Smibert said that [Child 1]’s older sister does not even talk to [Child 1] and that she would “say anything her father wanted her to”. Mr Hiang pointed to a tax notice for [Child 1] with her grandmother’s address on it; Ms Smibert said that she and [Child 1] had for years used that address as Ms Smibert said her accommodation (including emergency accommodation after being released from prison in 2021) has not been unstable.

5. Ms Smibert conceded that due to her housing situation, [Child 1] moved to live with her grandmother in July 2023. However, she said she was sending [Child 1]’s grandmother (Ms Smibert’s mother) some $400 a month by way of support. Mr Hiang observed he was paying more than that amount in child support, and that his payments were to support [Child 1], not Ms Smibert.

Application of the law

1. Care percentage determinations are governed by Subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced by a new determination reflecting the new pattern of care.

2. It is important to observe that each care change is the subject of a separate notification, and separate decision. However, in Child Support Registrar v BKCZ [2023] FCA 1109 (“BKCZ”), it was held that when “looking back”, the Tribunal was obliged to adopt an approach incorporating a consideration of events occurring after the date of notification of the change.

3. On a narrow view, the present matter is confined to consideration of a care change notified on 5 October 2022. The decision by Child Support to record [Child 1]’s care as 0% to both parents from 28 December 2023 post-dates the original notification and represents a separate (and original) decision by the objections officer on 23 March 2024. On a narrow view, the Tribunal would only consider the notification made on 5 October 2022 about [Child 1]’s purported care from 19 July 2022.

4. The broader view of the recent Federal Court decision is that there is effectively no legal barrier to conducting a “retrospective audit” by taking account of changes in care not previously notified. Arguably, this could potentially lead to a retrospective audit spanning up to almost 18 years in an extreme case. It seems to me that whilst it may be lawful to do so (adopting the Federal Court decision), it may not be preferable in the circumstances of a particular case to conduct an unfettered audit and to “draw a line” at some point in terms of taking account of subsequent care changes not previously given effect in the assessment.

5. In the present case, there have been no intervening care determinations to take account of. As the matter involves what is effectively a “terminating event”, I consider it was appropriate (and lawful, according to BKCZ) for the objections officer (and in turn, this Tribunal), to take account of a later date upon which [Child 1] could be held to have been in the “0% care” of both parties.

6. There is some common ground between the parties. Ms Smibert concedes [Child 1] left her care in July 2023 to live with [Child 1]’s grandmother. However, Ms Smibert says she continued to pay $400 per month to her mother to help support [Child 1], which Mr Hiang observes was appreciably less than his child support liability. [Child 1]’s move to live with her grandmother is consistent with the text exchange presented by Mr Hiang in around August 2023: folio 12 of the Child Support hearing papers. I note that I do not place material weight on the statement provided by [Child 1]’s sister.

7. On the basis of the evidence available to me, I consider that by the end of July 2023, [Child 1] was living with her grandmother who was primarily responsible for meeting her needs, and taking primary responsibility for her care and welfare. I therefore find that [Child 1] should be recorded in the 0% care of Ms Smibert and Mr Hiang from 1 August 2023 (not 28 December 2023).

8. I note that Mr Hiang did not object to the original decision within 28 days. I do not consider there were any special circumstances preventing his objection within 28 days, and I find no basis to favourably apply section 87AA of the Child Support (Registration and Collection) Act 1988. However, that has no practical effect as the decision I have made results in a “terminating event” from 1 August 2023, and there are no time limits for the retrospective termination of a case where both parents have no recorded care of a child.

9. As I have reached a different conclusion to the objections officer, the decision under review will be varied.

DECISION

The decision under review is varied so that care for [Child 1] is to be recorded as 0% to Mr Hiang and 0% to Ms Smibert from 1 August 2023 (not 28 December 2023).