Karlin and Bansgrove (Child support)

[2022] AATA 5126

Karlin and Bansgrove (Child support) [2022] AATA 5126 (13 December 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024744

APPLICANT:  Mr Karlin

OTHER PARTIES:  Child Support Registrar

Ms Bansgrove

TRIBUNAL:Senior Member J Longo

DECISION DATE:  13 December 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Karlin has a percentage of care of 100% for [Child 1] from 11 May 2022 and Ms Bansgrove has a percentage of care of 0% for [Child 1] from 1 August 2021.

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 set aside and substituted

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.Mr Karlin and Ms Bansgrove are the parents of [Child 1]. Mr Karlin is the parent liable to pay child support.

2.On 11 May 2022, Ms Bansgrove contacted Services Australia – Centrelink (Centrelink) to advise that there had been a change in the care of [Child 1] and that he was now in the 100% care of Mr Karlin since March 2022. 

3.On 15 May 2022, Services Australia – Child Support (the Agency), relying on the decision of Centrelink to change the care of [Child 1], made a new care determination that Ms Bansgrove had a percentage of care for [Child 1] of 0% and that Mr Karlin had a percentage of care of 100% for [Child 1] from 3 March 2022. 

4.On 30 May 2022, Mr Karlin lodged an objection to the decision of the Agency, stating that [Child 1] came into his 100% care in August 2021. On 24 August 2022, an objections officer disallowed Mr Karlin’s objection.

5.On 27 September 2022, Mr Karlin lodged an application to this Tribunal for a review of the decision. The hearing took place on 13 December 2022. Mr Karlin spoke to the Tribunal in person and gave sworn evidence. Ms Bansgrove participated via telephone and gave sworn evidence. In making its decision the Tribunal took into consideration the documents (numbered 1 to 131) provided by the Agency, which were also sent to Mr Karlin and Ms Bansgrove.

CONSIDERATION

6.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [Child 1]?

7.It is uncontroversial that the care arrangements for [Child 1] were, from 15 May 2020, reflected as 78% to Ms Bansgrove and 22% to Mr Karlin. Both Mr Karlin and Ms Bansgrove stated that while there had been court orders in the past regarding [Child 1]’s care, they had not been followed for some time and the care arrangements for [Child 1] were based on oral arrangements.

8.Mr Karlin stated that in August 2021, [Child 1] started living with him, and his parents in [City 1], as he had decided to help his grandmother care for his grandfather who had been diagnosed with dementia. He had not kept any calendar records of [Child 1]’s time in his care. Mr Karlin stated that [Child 1] would stay with Ms Bansgrove from time to time at her home in [Town 1]. Mr Karlin stated that he would often go to stay in [Town 1] as well. He thought that he had also spent about two to three months in [Town 1] over the last two years.

9.Mr Karlin stated that [Child 1] was enrolled at [a] High School but he hardly attended school due to severe bullying and harassment from some of the students. He stated he chose to help his grandmother with the care of his grandfather until January 2022. Mr Karlin stated that he then arranged for him to get a job at his workplace as [Child 1] was not attending school. He started working there around March 2022. Mr Karlin confirmed that he did not contact Centrelink or the Agency about the change in care until the matter was raised by Ms Bansgrove.

10.Ms Bansgrove confirmed in her oral evidence to the Tribunal that [Child 1] was having difficulties at school and that his attendance was sporadic – she stated that he was lucky to attend two full days in a week in 2021 – as a result of the severe bullying he was experiencing at school. Ms Bansgrove also confirmed that [Child 1] did help with his grandfather’s care when he became unwell and needed assistance with his mobility and general care. Ms Bansgrove stated that this commenced in August/ September 2021. Ms Bansgrove stated that he would stay 2 to 4 nights per week with Mr Karlin and his parents but would come to [Town 1] for the weekend. On a couple of occasions, Mr Karlin took [Child 1] camping and so on these occasions he did not visit her on the weekend. Ms Bansgrove confirmed that Mr Karlin would often also come to [Town 1] on the weekend when [Child 1] visited.

11.Ms Bansgrove stated that notwithstanding this arrangement, she was attending meetings with the school regarding [Child 1]’s attendance and ongoing issues with bullying. She stated that she enrolled [Child 1] for 2022 but when he did not commit to returning in January 2022, she decided that he should go into Mr Karlin’s care. She stated that she sort of knew in January/February 2022 that he wasn’t returning to school and that he wanted to stay with Mr Karlin and that Mr Karlin had found him some casual employment.

12.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to [Child 1] be revoked?

13.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children.

14.In this case, the Tribunal has determined that a care determination was made under section 50 of the Act from 15 May 2020 and that Ms Bansgrove had a percentage of care for [Child 1] of 78% and that Mr Karlin had a percentage of care of 22% for [Child 1]. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the Tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [Child 1], the Tribunal must determine the percentage of care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

15.The Tribunal is required to consider what the actual care of [Child 1] was or is likely to be during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The government’s policy, as followed by the Agency in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the Tribunal but the Tribunal has determined that it is appropriate to consider the policy in the circumstances of this matter. The Tribunal considers that, in the circumstances of this case, an appropriate care period is the period from 1 August 2021, being the date on which Mr Karlin stated that a change to care arrangements had occurred.

16.The Tribunal has determined, based on the evidence of both Mr Karlin and Ms Bansgrove, that the care for Mr Karlin and Ms Bansgrove changed from August 2021 and that [Child 1] was in Mr Karlin’s 100% care from this date. It is clear from both Mr Karlin’s evidence and Ms Bansgrove’s that he was assisting with the care of his grandfather in [City 1] and that, according to Ms Bansgrove, spending at least 3 to 4 nights per week there to help his grandmother. Ms Bansgrove also confirmed that Mr Karlin would often accompany [Child 1] when he would visit her in [Town 1]. Both parents confirmed that [Child 1], while enrolled at [a] High School, had not attended during 2021 due to severe bullying and that eventually he decided not to continue with school.

17.The Tribunal is satisfied that the evidence indicates that [Child 1] went into Mr Karlin’s care from August 2021 and was no longer in Ms Bansgrove’s actual care, although he did visit with Mr Karlin during this period. In the absence of a specific date, the Tribunal has determined that the care change occurred from 1 August 2021, with Mr Karlin having 100% of care of [Child 1] from this date and Ms Bansgrove’s care being 0% for the purposes of child support.

Date of effect of the change in care

18.The Tribunal has determined that the care should be changed to reflect that [Child 1] was in Mr Karlin’s care for 100% of the time and in Ms Bansgrove’s care 0% of the time. Accordingly, the previous determination of care made on 15 May 2020 is revoked. However, as the Agency was not notified of the change in care within 28 days of the care change, the new care determination takes effect on the date the care was notified to Child Support on 11 May 2022 (as per subparagraph 54F(3)(b)(i) of the Act). For Ms Bansgrove, whose care has decreased, it will take effect from the change of care day, that is 1 August 2021 (subparagraph 54F(3)(b)(ii) of the Act). 

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Karlin has a percentage of care of 100% for [Child 1] from 11 May 2022 and Ms Bansgrove has a percentage of care of 0% for [Child 1] from 1 August 2021.