Maurice and Gilliam (Child support)

[2020] AATA 4408

Maurice and Gilliam (Child support) [2020] AATA 4408 (7 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERs:  2020/SC019503 and 2020/SC019523

APPLICANT:  Miss Maurice

OTHER PARTIES:  Child Support Registrar

Mr Gilliam

TRIBUNAL:Member M Kennedy

DECISION DATE:  7 September 2020

DECISION:

2020/SC019503

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is disallowed.

This means that Miss Maurice is eligible to receive child support from Mr Gilliam in respect of [the child], even though [the child] is under the parental responsibility of the Minister, where she is actually providing for his care.

2020/SC019523

As the Tribunal has disallowed the objection, the decision made under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is no longer relevant and therefore is also set aside.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – level of care provided by the carer parent – decision under review set aside and substituted
CHILD SUPPORT – percentage of care – date of effect of the objection decision – subsection 87AA(2) not relevant – 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

1. Miss Maurice and Mr Gilliam are the parents of [the child].  [The child] is subject to an order of the Children’s Court of New South Wales of 29 August 2017 placing him under the parental responsibility of the Minister for Family and Community Services in New South Wales pursuant to the Children and Young Persons (Care and Protection) Act 1998.

2. On 21 February 2020, Miss Maurice applied for a child support assessment in respect of [the child]. On 23 March 2020 the application was accepted and a determination made that [the child] was in her 100% care.

3. On 22 May 2020, Mr Gilliam objected.  His objection was treated as an objection to the care percentage determination.  Mr Gilliam provided information from the Department of Family and Community Services confirming that parental responsibility for [the child] was with the Minister until he was 18.

4. The objection officer accepted the language used in correspondence from the Department of Family and Community Services to the effect that [the child] was ‘taken to be in state care of New South Wales’ appeared to be conclusive for child support purposes, but also noted that Miss Maurice had not provided any evidence.  The objection was allowed on 9 July 2020 and given retrospective effect (as a care determination) to the day of the commencement of the case.

5. Miss Maurice applied to the Tribunal for review on 22 July 2020.  Miss Maurice provided (to the Department) further correspondence from the Department of Family and Community Services explaining that while [the child] was under the parental responsibility of the Minister, Miss Maurice provided ‘primary care’ after [the child] self-placed with her on 1 April 2019.

CONSIDERATION

1. The factual circumstances in this matter are not in dispute.  Mr Gilliam has provided documentary evidence confirming that [the child] is subject to orders of the Children’s Court of New South Wales, and the Department, now known as the Department of Communities and Justice, is aware that [the child] has self-placed with Miss Maurice.

2. Miss Maurice gave evidence to the Tribunal consistent with the proposition that she provides for [the child]’s day to day care needs.  Specifically, she told me that [the child] spends the night at her home, shares meals with her and that she assists [the child] with making major decisions.  She explained that she has been in contact with schools and TAFE regarding [the child]’s education ([the child] has not participated in education for some time) and assisted him with accessing medical care when he was ill.  Miss Maurice gave evidence that [the child] receives some financial support from his grandmother, and received expensive gifts from a care worker, but I do not consider anything turns on this in terms of accepting that [the child] is in Miss Maurice’s day to day care.

3. Mr Gilliam told me that he did not know any details about [the child]’s day to day care and has no contact with him.  Mr Gilliam’s concern was that there was a reason why [the child] had been placed under the parental responsibility of the Minister, and he did not understand it to be correct that if the Minister had parental responsibility that Miss Maurice should receive child support from him.  Mr Gilliam was aware that provision existed for the court to rescind the orders in respect of [the child] if appropriate, and accepted he should pay child support if that took place, but until that took place he did not consider it correct that he incur a child support liability to Miss Maurice.

4. Under the Child Support (Assessment) Act 1999 (the Act), among other requirements, a parent is entitled to child support from a parent in respect of an eligible child: sections 24 and 25 of the Act.

5. Noting Mr Gilliam’s concerns regarding the effect for child support of the order made under the Children and Young Persons (Care and Protection) Act 1998, I note that section 22A of the Act provides that the regulations may provide that children who are under the care (however described) of a person under a child welfare law are not eligible children for a child support case.  Currently, only children affected by child welfare laws of Western Australia or South Australia are not eligible children for child support purposes: Regulation 8 of the Child Support (Assessment) Regulations 2018.  A child subject to a child welfare law of New South Wales remains an eligible child for child support purposes.  What will be determinative as to whether a child support liability is incurred however is what is actually taking place with the care arrangements for the child.

6. As Miss Maurice is a parent, and [the child] is an eligible child (and in the absence of any other evidence to indicate that a criterion for accepting the application for child support is not satisfied), the application for child support must be accepted.

7. The next step is to make a care percentage determination in respect of [the child]. This determination is to corresponds with the actual care of the child that I am satisfied that Miss Maurice has had, or is likely to have, during a care period: section 50 of the Act.  In this regard, I have taken into account Miss Maurice’s answers to my questions based on the factors outline in the Department’s policy at item 2.2.1 of the Child Support Guide.  I am satisfied that she has 100% care of [the child], in the sense of providing 100% of the actual day to day care of [the child].

8. It follows therefore that Mr Gilliam’s objection to either the acceptance of the child support case or the making of the initial care percentage determination should not have been allowed.  I will set that decision aside and substitute a decision that Mr Gilliam’s objection is disallowed. The further decision made by the objection officer to give retrospective effect to the outcome of the objection decision no longer has any application.

DECISION

2020/SC019503

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is disallowed.

2020/SC019523

As the Tribunal has disallowed the objection, the decision made under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is no longer relevant and therefore is also set aside.