Ingham and Child Support Registrar (Child support)

[2020] AATA 4390

Ingham and Child Support Registrar (Child support) [2020] AATA 4390 (29 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019131

APPLICANT:  Ms Ingham

OTHER PARTIES:  Child Support Registrar              

TRIBUNAL:Member R King

DECISION DATE:  29 July 2020

DECISION:

The tribunal affirms the decision under review.

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 – court orders not complied with – whether an interim period should apply – no reasonable action – 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 Ingham and [Mr A] are the parents of [the child] (dob 2005).  From 2010, [the child]’s custody and care has been subject to a court order which gave Ms Ingham sole custody. [Mr A] paid child support to Ms Ingham in accordance with an administrative assessment, that was consistent with the court order.

2. On 17 October 2019, the Family Assistance Office (FAO) made a decision to record the care of [the child] as 100% per year for [Mr A] from 25 August 2019. On 24 October 2019, the Child Support Agency (CSA) gave consideration to this advice and recorded the care of [the child] as 100% with [Mr A] and 0% with Ms Ingham from 17 October 2019.

3. On 5 December 2019, Ms Ingham objected to the care percentage decision for [the child], stating that [the child] was not living with his father.

4. On 16 April 2020, an objections officer disallowed Ms Ingham’s objection.  The objections officer was not satisfied that Ms Ingham had provided sufficient evidence to substantiate her claim and override advice provided by the FAO.  The objections officer noted that [Mr A] had not responded to attempts to contact him. 

5. On 27 May 2020 (more than 28 days of receiving the objection decision), Ms Ingham applied to the tribunal for review.  [Mr A] advised the tribunal that he did not wish to be added as a party to Ms Ingham’s application.

6. The tribunal conducted a hearing on 15 July 2020.  Ms Ingham participated by conference telephone and provided sworn evidence.  The tribunal reconvened on 29 July 2020 to take additional evidence by telephone from Ms Ingham.

CONSIDERATION

1. Ms Ingham told the tribunal that she was not disputing that [the child] left her care on or around 25 August 2019 and went to live with his father in [Town 1].  From this date, according to her evidence, [Mr A] was providing care including assisting [the child] to continue at his school in [Town 2].  

2. However, Ms Ingham told the tribunal that this was just a temporary arrangement and after a few weeks, [the child] went down to Melbourne to live with his paternal grandfather who had a self-contained flat beneath his house.  Ms Ingham said that she believed that [the child] travelled to Melbourne with his father who had to be in Melbourne for a court appearance on 16 September 2019.  Ms Ingham told the tribunal that [Mr A] returned to Queensland following his court appearance and subsequently moved from Brisbane to North Queensland.

3. Ms Ingham provided the tribunal with screen shots from social media posts made by [the child] that indicate he has living in Melbourne and to a text message referring to his independent living arrangements.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the Child Support Agency for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA initially determined that Ms Ingham had 100% of the care of [the child].

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, the original care percentage determination is revoked and a new care percentage determined that does correspond with the actual percentages of care provided by each parent.

4. The tribunal is satisfied, on the evidence before it, that [the child] left the care of Ms Ingham on 25 August 2019 and entered the sole care of [Mr A].  Ms Ingham has provided evidence to the effect that [Mr A] had care of [the child] for a few weeks only and that [the child]’s grandfather had sole care of [the child] from some time around 19 September 2019.  The tribunal found her evidence persuasive and notes that [Mr A] did not avail himself of the opportunity to provide evidence that [the child] remained in his care after this date.

5. However, the relative brevity of the new care arrangements does not alter the fact that a change of care had occurred and that Ms Ingham no longer had care of [the child].  The objections officer found that a change of care occurred on 25 August 2019 and the tribunal is satisfied that the evidence is consistent with this finding.  While it appears to be likely that a further change of care occurred some weeks later the matter before the tribunal is the care percentages at the time when the first change occurred, on or around 25 August 2019.  It is open to the CSA to give further consideration to evidence provided by Ms Ingham with a view to making a further change of care determination but this is not the matter that is before this tribunal.

6. If the CSA is notified or becomes aware that the actual care percentages do not reflect the original section 50 determination more than 28 days after the change of care day, the section 54F determination has effect, for the person with increased care, from the day before the notification or the date when the CSA first became aware that the original determination did not reflect actual care percentages and for the person with the reduced care from the day before the change of care day.

7. In this case, the records indicate that the Secretary became aware of a change in the care arrangements for [the child] on 17 October 2019 because of an FAO determination, possibly arising in respect of a family tax benefit claim.  As the FAO had determined that [the child] had been in the sole care of [Mr A] from 25 August 2019, it follows that the CSA became aware of the change of care more than 28 days after the change occurred. 

8. The evidence before the tribunal indicates that a court order was in force at the time of the change in care on 25 August 2019. This order assigned sole care to Ms Ingham. The tribunal can determine an interim care period, under section 51 of the Act, if it is satisfied that Ms Ingham took reasonable action to ensure that the care arrangement specified in the court order was complied with. There is no evidence before the tribunal to suggest that Ms Ingham sought to enforce the court order. Rather the evidence indicates that, while Ms Ingham was concerned about [the child]’s wellbeing, she accepted that, as an adolescent, he had a fair degree of autonomy in deciding what family member he wanted to live with. The tribunal is therefore not satisfied that the circumstances in this matter allow for the determination of an interim care period, under section 51 of the Act.

9. It follows that there is no basis for disturbing the decision of the objections officer that Ms Ingham had 0% of [the child]’s care, with effect from 25 August 2019 and [Mr A] had 100% of his care, with effect from 17 October 2019.

DECISION

The tribunal affirms the decision under review.