Mabb and Child Support Registrar (Child support)

[2019] AATA 2527

Mabb and Child Support Registrar (Child support) [2019] AATA 2527 (11 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016068

APPLICANT:  Mr Mabb

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member Y Webb

DECISION DATE:  11 June 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether child living with their grandparent – existing percentage of care determinations revoked and new determinations made – decision under review affirmed

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. This review is about the percentages of care of Mr Mabb and Ms [A] in relation to their middle child (the child) from 13 February 2017.

2. At the relevant time in 2017 the child was almost 16 years old.  A child support assessment had been in place in relation to the care of the child since 27 February 2013 collectable by the Department of Human Services (Child Support Agency) since that date.

3. On 28 February 2017 Ms [A] contacted the Child Support Agency and stated that the care of the child had changed.  She stated that from 6 February 2017 the child was in the 100% care of his maternal grandmother.

4. Mr Mabb was contacted by the Child Support Agency on 1 March 2017.  The Child Support Agency records state that Mr Mabb stated that the child was just having a break and that the change was only temporary and that the child would be returning to his 100% care.

5. By letters dated 2 March 2017 the Child Support Agency requested supporting evidence from Mr Mabb and Ms [A].

6. Ms [A] responded and clarified that the date when Mr Mabb lost care of the child was 13 February 2017.  She forwarded a letter from the child’s grandmother dated 12 March 2017 which stated that the child had been living with her full-time since 13 February 2017.  She also forwarded an application by the NSW Police for an Apprehended Violence Order against Mr Mabb dated 14 February 2017 in relation to an alleged assault by Mr Mabb against the child on 13 February 2017.

7. On 28 March 2017 the Child Support Agency decided to accept Ms [A]’s request for a new determination of care and determined that Mr Mabb had nil care of the child and Ms [A] had nil care of the child and therefore that a terminating event had occurred in relation to the child from 13 February 2017.

8. On 23 October 2018 Mr Mabb objected to that decision.  He stated that he and the child had an argument in February 2017 and that the child stayed with his maternal grandmother for a few days to cool off and then came home.  He contended that he continued to provide 100% care for the child.   He provided two third party letters both dated 10 January 2019 and both of which stated that Mr Mabb had an altercation with the child and that the child stayed at his grandmother’s house for four days before returning to his father’s care.

9. On 1 March 2019 an objections officer of the Child Support Agency decided to disallow Mr Mabb’s objection.

10. On 7 March 2019 Mr Mabb applied to the Administrative Appeals Tribunal (the Tribunal) for review.

11. Ms [A] was invited to be a party to the review but she did not respond and she was removed as a party.

12. Mr Mabb attended the hearing by way of telephone conference on 11 June 2019 and gave sworn evidence.

ISSUES

1. The issues for the Tribunal to determine are:

   a)    What were the actual care arrangements in relation to the child in the relevant care period?

   b)    Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care under the new determination and from when should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

2. Amendments to the Assessment Act and the Registration and Collection Act were made effective from 23 May 2018 and 1 July 2018 respectively but this matter predates those amendments, and the legislation as it was prior to those dates applies.

3. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

4. The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

5. In this case, the Tribunal is required to consider the actual care during the care period.  While the Federal Magistrates Court of Australia made consent orders on 18 March 2013 that the child live with his father Ms [A] asserted that this was not occurring from 13 February 2017 and therefore the Tribunal considered the actual care.

6. There is no evidence and it was not suggested by Mr Mabb that the child was being withheld from him and hence sections 51 and 52 of the Assessment Act do not apply in this case.

7. Section 54A provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period. 

8. In this case, Mr Mabb did not contend that nights were an unsuitable measure of the care of the child and the Tribunal finds that nights are an appropriate method of ascertaining the actual care of the child in this case.

9. The Assessment Act provides that the care percentage must be determined for a ‘care period’ which is effectively defined as ‘…such period…as the Registrar considers to be appropriate having regard to all of the circumstances’. Usually (but not necessarily) the care period will be a 12 month period starting from the date of the assessment and reflecting the actual care that a person has, or is likely to have, during the care period. In this case the Tribunal is satisfied that a 12 month care period is appropriate. The Tribunal notes that although the Tribunal has decided that a 12 month care period is appropriate, this will continue to apply until a further change of care is notified (which may be before or after a 12 month period has elapsed).

10. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1]  the Tribunal takes into account evidence of the care the person has had, or the actual care, up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time. 

    [1] Paragraph 50(1)(a) of the Assessment Act

11. Mr Mabb told the Tribunal that he and the child had an altercation in February 2017 and that the child went to stay with his grandmother for a few days and then returned to his care.  He stated that the police report was “thrown out of court” and that the charges were not proceeded with.  He stated that there is a history of animosity between him and the child’s grandmother and that she has tried to “set him up” on a number of occasions.  He stated that the allegations that he was violent towards his son are false and the grandmother was the driving force behind police involvement.  He stated that his son did not agree with the police involvement.

12. Mr Mabb also stated that he is illiterate and cannot read or write and that made it difficult for him to read the letters from the Child Support Agency or respond to them.  He said that normally he asks a friend to read the letters to him. However, in relation to the reason why he waited 18 months to object to the decision of 28 March 2017, Mr Mabb claimed that he did not receive the letters of 28 March 2017 informing him of the decision and the Child Support Assessment letters of the same date. He confirmed that he had not changed his address.  He does not know why his mail went missing. He stated that it wasn’t until he queried with the Child Support Agency on 22 October 2018 why he was not receiving child support for the child that he became aware that a decision had been made that he no longer had the care of the child.  Once he was aware of this he lodged his objection.

13. He stated that he also lodged two third party statements from friends dated 10 January 2019 supporting his assertion that he had an altercation with the child and that the child stayed at his grandmother’s for a few days before returning to his father’s care.

The Tribunal’s consideration

1. The Tribunal is satisfied that there are court orders from 2013 which provide that the child is to live with his father.  There is no dispute that up until 12 February 2017 the child was in the 100% care of Mr Mabb and the 0% care of Ms [A]. 

2. In this case there was no evidence suggesting that the child was being withheld from Mr Mabb and that he was taking reasonable action to have his care restored.  Therefore, the Tribunal’s task is to determine the parents’ percentages of care based on the care that he or she is has had or is likely to have of the child in a care period.

3. In this case the Tribunal is satisfied that the care period began on 13 February 2017 because it accepts, based on the police report forwarded by Ms [A] that on this day the child went into the care of his grandmother following a significant dispute with his father.   

4. The Tribunal is satisfied that at the time that Ms [A] contacted the Child Support Agency on 28 February 2017 and reported a change in care the child was still in the care of the grandmother.

5. The Child Support Agency records show that when Mr Mabb was contacted on 1 March 2017 he did not disagree that the child was living with the grandmother.  While Mr Mabb told the Tribunal that the child only stayed for a few days with the grandmother, the record of the conversation with Mr Mabb as noted by the Child Support Agency on 1 March 2017 stated that Mr Mabb said that the child “will be”  returning to his care.  The Tribunal is satisfied that this could reasonably be interpreted as confirming that the child had not yet returned to his care.   Mr Mabb stated that the child “had been back 3 or 4 times” but this does not indicate that he had resumed living with Mr Mabb.

6. The Tribunal also considers persuasive the letter dated 12 March 2017 from the child’s grandmother stating that the child “has been living with me fulltime since 13 February 2017”. This tends to indicate that as at 12 March 2017 the child was still residing with her.  Mr Mabb urged the Tribunal to disregard the letter from the child’s grandmother on the basis that it was untrue but the Tribunal has not been presented with any other evidence  which corroborates his statement that the grandmother’s letter is false.  On the contrary, she has provided documentation from the NSW Police which tends to support her statement that the child had been in her care since 13 February 2017.

7. The Tribunal acknowledges that Mr Mabb has provided two third party statements both dated 10 January 2019 asserting that they are aware that Mr Mabb had an altercation with his child in 2017 and that the child stayed with his grandmother for four days before returning to Mr Mabb’s home.  They both stated that the child did not remove any of his personal items from his father’s home.  The Tribunal is concerned that these letters are almost identical in wording (which tends to indicate that there has been some cooperation in their preparation) and that they were written almost two years after the incident which occurred between the child and his father.  In addition, there is no evidence within those statements that either of Mr Mabb’s third parties had first-hand knowledge of the care of the child in the relevant period.  Therefore, in relation to the third party statements the Tribunal prefers the statement of the child’s grandmother with the accompanying police documentation over the two statements provided by Mr Mabb.

8. Hence, the Tribunal finds that there was a change of care on 13 February 2017 and that for the care period beginning on that date Mr Mabb and Ms [A] both had 0% care of the child.  The Tribunal is satisfied that there was at that time an expectation that the child would most likely continue to be in the 100% care of the grandmother.

9. While it appears that there was a subsequent change in care for the child and that Mr Mabb resumed 100% care at a later date, the Tribunal’s task is to ascertain what the care was and was likely to be in the care period.  The Tribunal concludes that at that time the care was and was likely to be that the child was in the 100% care of his grandmother.

10. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care of the children that is actually taking place does not correspond with the existing percentage of care for the children and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

11. In this case, while Ms [A]’s existing percentage of care was 0%, Mr Mabb’s existing percentage of care was 100% but following the change in care, his percentage of care was also 0%. Hence the existing determination of percentage of care for Mr Mabb must be revoked in accordance with section 54F which relevantly states:

    54FDetermination must be revoked if there is a change to the responsible person’s cost percentage

    (1)The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:

    (a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

    (b)the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

    (c)section 54G does not apply; and

    (d)subsection (2) applies in relation to the individual.

    Note:The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

12. Subsection 54F(3) of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 13 February 2017. The Tribunal also finds that Ms [A] notified the Child Support Agency of the change on 28 February 2017. As the Child Support Agency was notified within 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(a) on 12 February 2017, being the day before the change of care day.

13. Having revoked the existing determinations, the Tribunal must now make a new determination of Mr Mabb’s percentage of care (0%) under section 49 of the Assessment Act. Ms [A]’s percentage of care remained unchanged at 0%.

14. Section 54B of the Assessment Act sets out the date of effect of the new determinations of percentages of care. The percentages of care apply to each day in a child support period on and from the “application day”. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determinations of percentages of care is the day after the revocation of the existing determination. The Tribunal has revoked the existing determination with effect from 12 February 2017; therefore the change of care – that Mr Mabb and Ms [A] both have 0% of care - applies from 13 February 2017.

DECISION

The decision under review is affirmed.