Medvedev and Medvedev (Child support)

[2020] AATA 5114

Medvedev and Medvedev (Child support) [2020] AATA 5114 (30 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/CC019119

APPLICANT:  Mr Medvedev

OTHER PARTIES:  Child Support Registrar

Ms Medvedev

TRIBUNAL:Member M Douglas

DECISION DATE:  30 June 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – the percentages correctly determined – 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 is a review of an objection decision that a delegate of the Child Support Registrar made on 19 May 2020 relating to the care percentages for the eldest of Mr Medvedev and Ms Medvedev’s children, [Child 1]. There is no controversy regarding the care percentages that have been determined for Mr Medvedev and Ms Medvedev’s two other children, [Child 2] and [Child 3].

2. The Child Support Registrar acts through a government department known as Services Australia, and it is convenient to refer to the Registrar as Services Australia in the reasons for this decision.

3. The relevant chronology relating to the objection decision is this.

4. Mr Medvedev and Ms Medvedev separated under the one roof [in] May 2019. On or around [date] July 2019, Mr Medvedev moved from the former matrimonial home into a two-bedroom apartment.

5. On 19 August 2019 Ms Medvedev applied to Services Australia for an administrative assessment of child support to be made for her and Mr Medvedev’s children. There is no issue that the application was properly made and that the criteria set out in section 23 of the Child Support (Assessment) Act 1989 (the Act) were met. Services Australia was required, in accordance with section 50 of the Act, to determine care percentages for Mr Medvedev and Ms Medvedev. Staff from Services Australia communicated with Mr Medvedev and Ms Medvedev regarding the care they each had of their children and on 1 October 2019 Services Australia determined, with respect to [Child 1], that Ms Medvedev’s care percentage was 93% and Mr Medvedev’s was 7%.

6. On 17 February 2020 Mr Medvedev objected to that decision.

7. On 19 May 2020 Services Australia “partly allowed” his objection and set aside its decision of 1 October 2019 with respect to the care percentages for [Child 1] and determined that the care percentages for [Child 1] were 91% for Ms Medvedev and 9% for Mr Medvedev. Because there were no special circumstances that prevented Mr Medvedev from objecting to the decision of 1 October 2019 within 28 days of receiving notice of the decision, the care percentages Services Australia determined for [Child 1] pursuant to its objection decision of 19 May 2020 took effect, in accordance with subsection 87AA(1) of the Child Support (Registration Collection) Act 1988, from the date he lodged his objection, which was 17 February 2020.

8. Following Services Australia issuing its objection decision, Mr Medvedev applied to the Tribunal for a review of that objection decision.

9. His application was heard on 30 June 2020. Both he and Ms Medvedev participated by telephone. No one from Services Australia appeared. Mr Medvedev gave affirmed oral evidence and Ms Medvedev gave sworn oral evidence. The Tribunal has had regard to their evidence and also to the documents that Services Australia provided to the Tribunal, in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

CONSIDERATION

1. The fundamental test to assess care under the Act turns on findings regarding the actual or likely pattern of care in an appropriate care period made at the point in time at which the original decision was made. A care period is such a period as is appropriate to determine a pattern of care for a child. Generally speaking, that will be a period of 12 months.

2. Hence, in this case, given that the original decision with respect to [Child 1]’s care was made on 1 October 2019, the task of the Tribunal, standing in the place of Services Australia, is to decide, based on what was known as at 1 October 2019, what the actual or likely pattern of care for [Child 1] would be for the care period. In this case, the Tribunal considers that the appropriate period to determine what the actual or likely pattern of care would be for [Child 1], as at 1 October 2019, would be a period of 12 months from the date upon which Mr Medvedev moved from the former matrimonial home into his two-bedroom apartment.

3. Saying all that another way, the Tribunal’s task is to assess, based upon what was known on 1 October 2019, what would be the likely pattern of care that Mr Medvedev and Ms Medvedev would each have of [Child 1] for 12 months from 21 July 2019.

4. The evidence of both Mr Medvedev and Ms Medvedev was to the effect that as at 1 October 2019, they were still attempting to negotiate the times at which their children would reside with each of them. They had not, at that time, come to any arrangements with respect to such things as what would occur during school holidays. There was a period early after Mr Medvedev moved from their former joint residence when each of the younger children resided with him each weekend, but that was not the case with [Child 1]. The arrangement with the younger children was soon abandoned to ensure that Ms Medvedev could also spend time with the children each weekend.

5. Mr Medvedev’s evidence to the Tribunal was to the effect that, considering the matter as at 1 October 2019, he could not establish that his care of [Child 1] would for the relevant care period be greater than 9%, and that was largely because the care of [Child 1] was then still in a fluid state because his care was still being negotiated between him and Ms Medvedev.

6. The documentary evidence that is before the Tribunal confirms that was the case.

7. As mentioned to Mr Medvedev and Ms Medvedev during the hearing, if the care of any of their children changes from the care percentages presently being used in the assessment of child support, then they ought to notify Services Australia of that and they ought to do so within 28 days from the change in care occurring, so as to ensure that new care percentage determinations can be made by Services Australia that reflect the new care arrangements from the date the change in care occurred.

8. The Tribunal also notes that Mr Medvedev presented Services Australia on 11 March 2020 with a list of dates on which he has had care of the children up to that point in time. That revealed that he had care of [Child 1] for a relatively large part of the Christmas school holiday period. That list that Mr Medvedev presented to the department on 11 March 2020 is, in effect, his notifying Services Australia that there had, potentially, been a change in the care of [Child 1] from the existing care percentages for [Child 1] due to Mr Medvedev having care of [Child 1] during the school holiday periods. That circumstance does not affect the decision that Services Australia made on 1 October 2019 because any change in care of [Child 1] as a consequence of that occurred after Ms Medvedev had applied for a child support assessment, and also it was not known as at 1 October 2019 that Mr Medvedev would be having that care of [Child 1]. It would seem that Services Australia has not yet made a decision regarding Mr Medvedev’s notification to it on 11 March 2020, and that is something Mr Medvedev may wish to press with Services Australia; that is for it to make a primary decision with respect to his notification to it on 11 March 2020.

DECISION

The decision under review is affirmed