Long and Ryeland (Child support)

[2021] AATA 3608

Long and Ryeland (Child support) [2021] AATA 3608 (18 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021867

APPLICANT:  Ms Long

OTHER PARTIES:  Child Support Registrar

Mr Ryeland

TRIBUNAL:Member M Martellotta

DECISION DATE:  18 August 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the assessment – whether children were eligible children for child support assessment – whether children were in custody of or under guardianship, care and control or supervision of a person under a prescribed child welfare law – whether there was a terminating event in relation to the children – 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. This review concerns the question of whether there has been a terminating event in relation to an assessment of child support.

2. Ms Long and Mr Ryeland are the parents of two children.  According to Services Australia – Child Support (the Agency) there was a registered child support assessment in which care for both children was recorded as 100% to Mr Ryeland and 0% to Ms Long.  Ms Long was the parent assessed liable to pay child support.

3. On 10 October 2019 Ms Long advised the Agency of a change in care event for both children.

4. On 16 October 2019 the Agency decided to change the care recorded in the assessment to reflect that Ms Long had 100% care of one of the children ([Child 1]) as from 22 September 2019 and 100% of the second child ([Child 2]) from 1 October 2019.

5. Mr Ryeland objected to the decision on 21 October 2019 on the basis that there had been a terminating event in relation to the children.  The objection was allowed on 20 March 2020.  In a new decision the Agency decided that neither parent had care of the children.

6. Ms Long made an application to the tribunal seeking independent review of the decision on 11 June 2021.

7. The tribunal convened a hearing on 18 August 2021.  Ms Long and Mr Ryeland participated by conference telephone and each gave evidence on affirmation.[1] The agency provided 212 pages of documents.

ISSUES

[1] At hearing the tribunal dealt with a late application made by [Mr Ryeland] for representation, it was clarified that representation was being sought in relation to a separate family assistance debt.

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Assessment) Regulations 2018 (the Regulations).

2. Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course to follow it.[2]

   [2] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

3. The issue which arises in this case is whether there was a terminating event for the purposes of a child support assessment.

CONSIDERATION

1. In this case the following evidence is not disputed, and the tribunal finds that:

   a)The [relevant state authority] removed the child [Child 1] from Mr Ryeland’s care on 22 September 2019 and removed the child [Child 2] from Mr Ryeland’s care on 1 October 2019.

   b)Pursuant to Court Orders obtained by the [state authority] both children were taken into the provisional protection and care of the [relevant state authority]. 

   c)The [relevant state authority] became responsible for the day-to-day care of the children including making decisions about where the children would live and other day to day decisions.

   d)The [relevant state authority] decided to place the child [Child 1] with Ms Long on 22 September 2019 and the child [Child 2] in Ms Long’s care on 1 October 2019.

2. The Act[3] provides that a terminating event happens where, among other things, a child ceases to be an eligible child because of the operation of the Regulations made under subsection 22(1) of the Act.  Section 22 of the Act specifies that certain children are excluded from coverage under the Act and this includes children specified in the Regulations as being under the care of a person under child welfare law.

   [3] Section 12.

3. Section 6 of the Regulations specifies that:

   For the purposes of subsection 22(1) of the Act, children are not eligible children if they are in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law of:

   [the relevant state]

4. The tribunal accepts that Ms Long had care of the children who had been placed in her care by the [relevant state authority].  However, the operation of the legislation means that the children ceased to be eligible children for the purposes of child support which in turn means that there was a termination event in relation to the child [Child 1] on 22 September 2019 and in relation to the child [Child 2] on 1 October 2019.

5. For these reasons the decision under review is affirmed.

DECISION

The decision under review is affirmed.