Navarro and Navarro (Child support)

[2023] AATA 2663

Navarro and Navarro (Child support) [2023] AATA 2663 (10 July 2023)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025646

APPLICANT:  Ms Navarro

OTHER PARTIES:  Child Support Registrar

Mr Navarro

TRIBUNAL:Member P Noonan

DECISION DATE:  10 July 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – 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 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. On 22 November 2022 Services Australia – Child Support (Child Support) decided to record the care of the 4 children in this matter as 86% to Ms Navarro and 14% to Mr Navarro from 14 January 2022 due to a change in care notification from Mr Navarro notified on 26 August 2022 (the original decision).

2. On 23 November 2022 Ms Navarro objected to the original decision and on 17 February 2023 her objection was disallowed.

3. On 21 February 2023 Ms Navarro applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection officer’s decision.

4. A hearing into the matter was held on 10 July 2023. The Tribunal spoke to both parents by teleconference. In making its decision the Tribunal also took into consideration the documents (numbered 1 to 287) provided by Child Support and further submissions from Mr Navarro (numbered B1 to B20).

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. It is uncontroversial that the care of the children was previously determined by the Agency as 91% to Ms Navarro and 9% to Mr Navarro (the existing determination).

3. The law relevant to care percentage determinations is found in the Act. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what had happened up until the care decision is made and what is likely to happen thereafter. If for some reason what is likely to happen does not eventuate, a parent can notify the Agency and a new care determination can be made. However, the legislative test in the first instance and on review remains the same: what had happened until the date of the original decision, in this case until 22 November 2022, and what was likely to happen thereafter.

4. Where the care of the child has changed this may result in a decision to revoke the care percentages with respect to the child and replace them with new percentages. However, to do so, the Tribunal must first determine whether the care of the child has changed.

5. The actual or likely pattern of care is generally assessed over a care period to determine the care percentages for each parent, the Tribunal first considered the appropriate care period in this case. In this instance the Tribunal will consider the 12-month period from the care change being 14 January 2022 as an appropriate period.

6. Ms Navarro informed the Tribunal that she was only disputing the care of one child of the assessment, who is a teenage boy (the boy). She had not kept detailed care records with respect to the boy. She did not dispute that from 14 January 2022 the other 3 children of the assessment were in her care 86% of the time and in Mr Navarro’s care for 14% of the time. With respect to the boy, whose care she disputes, she informed the Tribunal that in her view Mr Navarro had less than 14% care of the boy. She submitted that the boy often either refuses to stay with Mr Navarro or stays at friends’ houses or attends parties and returns to her place on Mr Navarro’s care weekends.

7. Mr Navarro informed the Tribunal that the boy does often go out when he is in his care however this is agreed to by him in communications with the boy. He contended that in respect to such nights he is not staying with Ms Navarro either and as such is not in her care. Mr Navarro also submitted that he had maintained care records with respect to the boy for 2022 and 2023 that reflect consistent fortnightly care for 2 nights. He also pointed to third party statements from his partner and mother which attest to this. Ms Navarro submitted that Mr Navarro’s partner worked elsewhere on care weekends and so would not have first hand knowledge of the boy’s care and his mother lives interstate.

8. With respect to other pertinent evidence the Tribunal notes that Ms Navarro also submitted third party statements which attest to the boy not attending Mr Navarro’s and instead staying with Ms Navarro. These statements are not however from persons who reside in the same house or have a detailed knowledge of care arrangements. However Ms Navarro is recorded as informing Child Support on 19 October 2022 that the boy does stay a minimum of one night a fortnight with Mr Navarro.

9. The Tribunal notes that Mr Navarro’s care records reflect that the boy often stays with friends on his care weekends and he has text communications with him on most of these occasions.  The Tribunal also notes that in an affidavit filed with the Federal Circuit Court, dated 29 August 2022, Ms Navarro stated that the children have generally spent every second weekend with Mr Navarro in the last 2 years, depending on illness, sport and if the children wanted to go.

10. Point 2.2.1 of the Child Support Guide[1] which contains government policy with respect to the applicable legislation contains a useful rundown of policy with respect to determining whether care exists as follows:

    Where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case, based on the extent to which the:

    ·     person has control of the child, including having overall responsibility for the child and making

    o    major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities, and

    o    arrangements for others to meet the needs of the child (delegated care)

    ·     person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities

    ·     person pays for the costs of meeting the needs of, or otherwise provides financial support for, the child

    ·     child provides for his or her own needs or has those needs met from another source

    ·     child is financially independent or financially supported from another source.

    [1] 2.2.1 Basics of care | Child Support Guide (dss.gov.au) (accessed 10 July 2023).

11. On balance the Tribunal is satisfied the material weight of the evidence before it reflects that Mr Navarro has established a pattern of care exists for the boy of 2 nights a fortnight. This is because he has maintained care diaries reflecting such a pattern of care, he has provided records of communication in which he generally establishes or identifies the boy’s arrangements for his care weekends, and he has accommodation provided for the boy when it is sought which, according to Ms Navarro’s own previous statements, is at least most designated care weekends for at least one night at a minimum. The Tribunal acknowledges Ms Navarro’s expressed frustrations that on some occasions the boy returns to her home or does not leave her home on Mr Navarro’s designated weekends. However, as discussed at hearing, the boy is a teenager who is unpredictable and largely independent in his movements. Ms Navarro has also not provided detailed diarised care records of her care of the boy. The Tribunal also notes that ad hoc breaks from the pattern of care are generally allowed for without disturbing the overall pattern.

12. Given the above findings the Tribunal is satisfied that in the 12 months from 14 January 2022 pursuant to section 50 of the Act a pattern of care of 14% to Mr Navarro and 86% to Ms Navarro with respect to the children is established.

13. The Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must or may be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child. In this instance section 54F is applicable as the cost percentage to each of the parents changes as per section 55C of the Act. In the circumstances pertaining to this matter, the Tribunal is satisfied that revoking the earlier care determination is appropriate. Accordingly, the Tribunal revokes the existing determination.

14. In this instance the date of effect for the new determination is the date of notification of the care change, as Mr Navarro’s care increased and he notified of this more than 28 days after the care change occurred, as per paragraph 54F(3)(b) of the Act.

15. Although the legal reasoning used by the Tribunal differs somewhat from the reasoning of the objections officer the practical end result is the same and as such, affirming the decision under review is the correct and preferable outcome.

DECISION

The decision under review is affirmed.