Linnell and Chriss (Child support)

[2024] AATA 3934

Linnell and Chriss (Child support) [2024] AATA 3934 (19 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027843

APPLICANT:  Mr Linnell

OTHER PARTIES:  Child Support Registrar

Ms Chriss

TRIBUNAL:Member M King

DECISION DATE:  19 July 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the existing pattern of care for the children – was living with mother – decision under review is 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 theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. As relevant to this application, Mr Linnell and Ms Chriss are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2012) and [Child 2] (born 2014).

2. Ms Chriss had been recorded as having 100% care of the children, and Mr Linnell 0% care of the children, from 14 July 2019, when the child support case commenced.

3. On 3 October 2023, Mr Linnell advised Child Support that neither parent had care of the children from 1 January 2022. He stated that the children were living in Taiwan and Ms Chriss was living in Australia.

4. On 25 October 2023, Child Support recorded each parent as having 0% care of the children, from 1 January 2022.  

5. On 13 February 2024, Ms Chriss objected to the decision.

6. On 20 April 2024, a Child Support objections officer allowed the objection and determined that no change should be made to the original percentages of care recorded, being 100% for Ms Chriss and 0% for Mr Linnell.

1. On 23 April 2024, Mr Linnell lodged an application with the Tribunal seeking an independent review of Child Support’s decision.

1. The hearing of the application before the Tribunal was held on 19 July 2024. Mr Linnell attended the hearing by video conference and gave sworn evidence. Ms Chriss attended the hearing by telephone conference and gave sworn evidence.  

2. In considering the application, the Tribunal took into account the oral evidence and submissions of Mr Linnell and Ms Chriss at the hearing and the documentary material provided by Child Support to the Tribunal (Exhibit 1, pages 1 to 122).

ISSUE

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations, which are then used as part of the child support formula to assess child support rates.

2. The issue to be determined by the Tribunal is the percentage of care determinations to apply in the assessment for each parent.

CONSIDERATION

1. Sections 49 and 50 of the Act require initial percentage of care determinations to be made upon initial registration of a child support case, and generally for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is first required as to whether there is a pattern of care or no pattern of care for a child during a care period.

2. Both sections 49 and 50 first require consideration of whether the relevant person has had, or is likely to have, no pattern of care or a pattern of care for a child. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care the person has had, or is likely to have, during the care period.

3. Mr Linnell told the Tribunal that Ms Chriss has failed to comply with court orders over a number of years. However, Mr Linnell confirmed there are no court orders about where the children will live.

4. He said he believes the children are not living with Ms Chriss because she is a selfish person. He said he just guessed that Ms Chriss is not living with the children and her parents. He said he cannot provide any evidence that Ms Chriss is not living with the children and her parents.

5. Ms Chriss told the Tribunal that she lives with the children and her parents. She noted that both of her parents have written to Child Support confirming that.    

6. At pages 61 and 62 of Exhibit 1 are copies of letters written by Ms Chriss’s mother and father, dated 15 March 2024. Each letter states that Ms Chriss’s parents have been living with Ms Chriss and the children since the children were born.  

7. Mr Linnell has provided no evidence to support his assertion that Ms Chriss is not living with the children. He initially told Child Support that the children were living in Taiwan. However, there is no evidence to support such a finding. Ms Chriss’s parents have provided statements that they have lived with Ms Chriss and the children since the children were born.  

8. The Tribunal is not satisfied there has been any change to the existing pattern of care for the children, being 100% for Ms Chriss and 0% for Mr Linnell. 

DECISION

The decision under review is affirmed.