Honarth and Honarth (Child support)

[2022] AATA 2370

Honarth and Honarth (Child support) [2022] AATA 2370 (16 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023454

APPLICANT:  Mrs Honarth

OTHER PARTIES:  Child Support Registrar

Mr Honarth

TRIBUNAL:Member J Thomson

DECISION DATE:  16 June 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new 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 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. Ms Honarth and Mr Honarth are the parents of [Child 1], born 2007.

2. Ms Honarth seeks review of an objection decision made by Services Australia (the Agency) on 14 February 2022. This decision disallowed her objection to an earlier decision made by the Agency dated 22 January 2022 to reflect the care for [Child 1] as 86% to Ms Honarth and 14% to Mr Honarth from 15 October 2021.

3. The Tribunal heard the matter on 16 June 2022. Both parents attended the hearing vis MS Teams audio and gave affirmed evidence. The Tribunal had before it documentation provided by the Agency, folios 1 to 135, admitted into evidence and marked Exhibit 1. Both parents had copies of these documents with them at the hearing.

ISSUES

1. The issues which arise in this case appear from the Reasons set out below:

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibit 1.

2. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same; what happened up until the date of notification and what was likely to happen thereafter?

3. On 8 November 2021, Mr Honarth notified the Agency of a change in care for [Child 1] which he said occurred on 15 October 2021. Prior to his notification, the care percentages being assessed by the Agency were 100% to Ms Honarth and 0% to Mr Honarth.

4. Mr Honarth gave evidence at the hearing that he had a discussion with [Child 1] in the latter part of 2021 regarding [Child 1] spending more consistent time with him and his new partner and her family. He said he proposed to [Child 1], who was 15 years old at the time, that he spend at least two-to-three nights every two-to-three weeks with Mr Honarth. He said [Child 1] expressed interest in this proposal which he said commenced on 15 October 2021.

5. Ms Honarth gave evidence that she was aware Mr Honarth was having these discussions with [Child 1], but asserted Mr Honarth had not included her in them. However, she said she did not oppose [Child 1] spending more time with Mr Honarth.

6. It was not seriously disputed at the hearing that the level of care Mr Honarth was having from 15 October 2021 until the end of January 2021 was three nights every three weeks, accurately determined at 14%.

7. He also acknowledged at the hearing that from the end of January 2022, the level of care he was having had declined to sporadic care, and that there were numerous occasions when [Child 1] did not keep previously arranged care appointments. He gave evidence of a period in February 2022 when he was confined to his home because of COVID 19 issues, and he had no care during this period, and conceded that from March 2022 his level of care had declined significantly from the previous level of three nights of care every three weeks to sporadic care, as and when [Child 1] chose to spend time with Mr Honarth.

8. Ms Honarth’s issue at the hearing was the determination of Mr Honarth’s pattern of care at 14% from the end of January 2022. Ms Honarth contended at the hearing that the pattern of care determined by the Agency in its decision of 22 December 2021 of three nights care every three weeks at 14% had ceased to apply from at least the end of January 2022.

9. She gave evidence that from the end of January 2022, she was having 100% care of [Child 1] as he was staying at his father’s house only on sporadic occasions.

10. She gave evidence that she notified the Agency on 4 January 2022 of a change in care for [Child 1], contending that she was having more than the 86% care determined by the Agency in response to Mr Honarth’s 15 October 2021 change in care notification on 8 November 2021.

11. The Agency did not record her notification as a change in care and instead, advised Ms Honarth to object to the Agency’s decision of 22 December 2021, which she did. The Agency’s file note of her notification and the Agency officer’s advice is recorded at pages 81 and 82 of Exhibit 1. and her corresponding objection at pages 84 and 85 of Exhibit 1.

12. The Agency then embarked on the objection process, subsequently disallowing Ms Honarth’s objection on 14 February 2022.

13. The issue before the Tribunal is whether the Agency’s decision to accept Mr Honarth’s original notification on 8 November 2021 that there had been a change in care for [Child 1] on 15 October 2021 and determine the likely pattern of care from that date into the future pursuant to section 50 of the Act at 14% to Mr Honarth and 86% to Ms Honarth from 15 October 2021 was the correct decision.

14. As noted above, Ms Honarth did not dispute that there had been a change in care on 15 October 2021 when Mr Honarth commenced having three nights of care of [Child 1] every three weeks. until at least the end of January 2022.

15. The Agency’s file records referred to above suggest she notified the Agency of a further change in care for [Child 1] on 4 January 2022 which perhaps should have been actioned by the Agency as a fresh change in care notification, but instead was actioned as an objection to the Agency’s decision of 22 December 2021 accepting Mr Honarth’s initial change in care notification on 8 November 2021.

16. The Tribunal finds that the evidence, on balance, is that the Agency was entitled to accept Mr Honarth’s notification of a change in care for [Child 1] on 8 November 2021 and that the pattern of care he was having from 15 October 2021 into the future was likely to be three nights every three weeks, equating to 14% care, notwithstanding that the likely pattern of care ceased from late January 2022.

17. The Tribunal therefore affirms the objection decision under review. However the Tribunal observes that it is open to Ms Honarth to apply to the Agency for a change in care  pursuant to her notification on 4 January 2022 or such later date as she may be advised.

DECISION

The decision under review is affirmed.