Langdon and Child Support Registrar (Child support)

[2017] AATA 2956

Langdon and Child Support Registrar (Child support) [2017] AATA 2956 (14 December 2017)

DIVISION:  Social Security & Child Support Division

REVIEW NUMBER:  2017/SC012598

APPLICANT:  Mr Langdon

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:  Member J Cuthbert

DECISION DATE:  14 December 2017

DECISION:

The decision under review is set aside and a decision substituted that the child support assessment for [Child 1] ends on 31 May 2017.

CATCHWORDS

Child Support – Percentage of care – Determination of the likely pattern of care – 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 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 Langdon and Ms Langdon are the parents of [Child 1] (born 2000). There has been a child support assessment made by the Department of Human Services – Child Support (the Department) in place since 2004. This review concerns the care percentages used in the assessment for [Child 1]. Prior to June 2017 the assessment was based on Mr Langdon having a care percentage of 100% for [Child 1] and Ms Langdon having a care percentage of 0%.

2. On 2 June 2017 Mr Langdon advised Centrelink that [Child 1] had left his care permanently on 31 May 2017.

3. On 13 June 2017 Ms Langdon advised the Department that [Child 1] was staying with her.

4. On 29 June 2017 the Department made a decision to vary the care percentages used in the child support assessment for [Child 1] from 31 May 2017 so that Mr Langdon had a care percentage of 0% and Ms Langdon had a care percentage of 100%.

5. Mr Langdon lodged a written objection to the care percentage decision and the decision not to end the assessment on 18 July 2017.

6. On 2 August 2017 a decision was made by the Department to end the assessment for [Child 1] on 30 June 2017.

7. Mr Langdon’s objection was disallowed on 21 September 2017.

8. On 28 September 2017 Mr Langdon made an application to the tribunal for a review of the objections officer’s decision concerning the care percentages used in the assessment for [Child 1] and the decision not to end the assessment from 31 May 2017.  

9. The application was heard on 14 December 2017. Mr Langdon attended the hearing by telephone. Ms Langdon did not respond to an invitation to be joined as a party to the proceedings. The tribunal had regard to documents provided by the Department (folios 1 to 106).

ISSUES

1. The issues the tribunal must decide are:

• whether there was a change, or changes, to the care pattern for [Child 1] such that the care percentages used in the child support assessment should be revoked; and if so

• the new care percentages which apply and the date from which they take effect; and

• whether the assessment for [Child 1] ends as a consequence.

CONSIDERATION

1. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act). After accepting an application for a child support assessment, the Department (acting for the Child Support Registrar) makes a child support assessment using a statutory formula in Part 5 of the Assessment Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” and a “cost percentage” for each parent in relation to each child.

2. The Department makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment or if there is a change to the care pattern which means that an earlier determination should be revoked.

3. Sections 49 and 50 require the Registrar, or this tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Section 54A of the Assessment Act provides that the extent of care that a person is to have under a care arrangement may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.

4. Care percentages must be revoked and new care percentages determined if:

   ·a person no longer has a care percentage of at least 14% (section 54G of the Assessment Act), or

   ·the care of a child that is actually taking place does not correspond with a person's existing percentage of care for the child such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply (section 54F of the Assessment Act).

5. The date of effect of any revocation of care percentages and the date of changes to the percentages used, depend on when the Department was notified or became aware of the change. If neither parent is an eligible carer (neither has a care percentage of at least 35% - section 7B and subsection 5(3) of the Assessment Act) and no other person has applied for a child support assessment for the child, the assessment ends (section 12 of the Assessment Act).

6. The concept of care is not defined in the child support legislation. In Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec) the Court stated that in determining to what extent a person has care of a child the following questions may be posed:

   In my view, in determining whether and to what extent a person has care of a child for the purposes of the Child Support (Assessment) Act and the Child Support (Registration and Collection) Act, it is necessary to consider the following:

   To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?

   To what extent does the person make arrangements for others to meet the needs of the child?

   To what extent does the person pay for the costs of meeting the needs of the child?

   To what extent does the person otherwise provide financial support for the child?

   To what extent does the child provide for his or her own needs or have those needs met from another source?

   To what extent is the child financially independent or financially supported from another source?

7. Mr Langdon contends that [Child 1] was largely independent from 31 May 2017. He said that he told Centrelink on 2 June 2017 so that he would no longer receive family tax benefit payments and [Child 1] could receive youth allowance. He said that as [Child 1] had been having problems at school his older brother, [Mr A], who lives in [City 1], had arranged a traineeship for him. Mr Langdon said that [Child 1] went to [Town 1] to see friends and family before he flew to [City 1] to live with [Mr A]. He acknowledged that [Child 1] might have stayed with Ms Langdon for a few nights but stated that [Child 1] was not in her care. He said that Ms Langdon and [Child 1] do not get along very well.

8. Mr Langdon told the tribunal that he gave [Child 1] $200 when he left on 31 May 2017 and another $500 in the next month to help him with food and living costs. He said that [Mr A] paid for [Child 1]’s airfare to [City 1]. Mr Langdon said that he saw [Child 1] about once a week when he returned to [their town], usually in the company of his friend, [Mr B]. He said that he was aware that [Child 1] stayed some of the time on [Mr B]’s farm as well as with other friends.

9. The tribunal notes that on 13 June 2017 Ms Langdon told an officer of the Department that [Child 1] would be leaving around 30 June 2017 to go to [City 1] to stay with his brother. While she stated that [Child 1] was in her care, she did not provide any further information.

10. The tribunal finds that although Mr Langdon provided [Child 1] with some financial support from 31 May 2017 and Ms Langdon may have provided him with some accommodation and meals, [Child 1] was largely independent and was making his own decisions about where he would stay. He was only intending to holiday in [Town 1] temporarily for a few weeks before moving to [City 1].

11. On the evidence provided, the tribunal finds that neither parent had care of [Child 1] from 31 May 2017 and that care percentages of 0% apply for Mr Langdon and Ms Langdon. The tribunal finds that the care pattern for [Child 1] changed so that the assessment ends on 31 May 2017.

DECISION 

The decision under review is set aside and a decision substituted that the child support assessment for [Child 1] ends on 31 May 2017.