Noyce and Eales (Child support)

[2018] AATA 954

Noyce and Eales (Child support) [2018] AATA 954 (27 February 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/MC012441

APPLICANT:  Ms Noyce

OTHER PARTIES:  Child Support Registrar

Mr Eales

TRIBUNAL:Member C Breheny

DECISION DATE:  27 February 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support – Percentages of care – Revocation of existing determinations – New determination of percentages of care – Both parents have less than 35% care - Terminating event - 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. Ms Noyce and Mr Eales are the separated parents of [Child 1], born May 2000. A child support case was registered by the Department of Human Services – Child Support (the Department) on 15 June 1998 and registered for collection from 14 January 2008. Since 11 June 2015 Mr Eales is assessed as liable to pay child support to Ms Noyce on the basis that Ms Noyce had 100% care of [Child 1].

2. On 21 November 2016 Mr Eales notified the Department that [Child 1] had moved in with his girlfriend and is no longer in his mother’s care. Ms Noyce submitted that [Child 1] does spend time with his girlfriend on occasion, but remains in her care. On 4 January 2017 a decision was made to refuse to accept that a care change had occurred.

3. On 5 January 2017 Mr Eales objected to that decision. He provided a letter from Ms [A] ([Child 1’s] girlfriend’s sister) stating that [Child 1] had been residing at her (Ms [A’s]) house since 14 November 2016. On 21 February 2017 an objections officer of the Department decided to allow the objection. The objections officer found that neither Mr Eales not Ms Noyce had care of [Child 1] from 14 November 2016 and that a terminating event ended the child support case on that date.

4. On 5 September 2017 Ms Noyce applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the decision. The application was heard on 30 January 2018. Both Ms Noyce and Mr Eales attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the statement and documents provided by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 4 October 2017 (documents numbered 1 – 48).

5. On 30 January 2018 I deferred making a decision to enable Ms Noyce and Mr Eales to provide additional evidence. Mr Eales’evidence was received on 14 February 2018 and marked B1 – B3. Ms Noyce was given seven days to comment on the additional evidence. As of the date of my decision no additional evidence or comments were received from Ms Noyce. I made my decision on the available material before me.

ISSUES & CONSIDERATION 

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to [Child 1]. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Department is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage.

Mr Eales’ evidence

1. Mr Eales told me that [Child 1] had been living with his girlfriend at his girlfriend’s sister’s house. He then moved in with other friends.

2. [Child 1] works for him (Mr Eales) and his girlfriend’s sister’s place and other friends’ houses are much closer to work.

3. On 11 January 2017 Mr Eales provided a letter from Ms [A] (folio 23) stating, “[Child 1]  has moved in … around the 14th of November 2016. I receive weekly payments from his father… to help me support [Child 1], but nothing from his mother.”

4. On 14 February 2018 Mr Eales provided a letter from Ms [B] indicating, “[Child 1]  stayed at our house from May 2017 until mid September 2017” (folio B2) and a letter from Ms [Ms C], stating that [Child 1] stayed at her place “from January 2017 until the end of April 2017” (folio B3).

Ms Noyce’s evidence

1. Ms Noyce disputed that a care change had occurred. She said that [Child 1] would have stayed with his girlfriend, but only for a few nights. He also would have stayed at another friend’s house, but again only for a few nights. He would always return to her and she would provide food and money.

2. Ms Noyce said that [Child 1] has never really left her side and she always had care of him. She was homeless for a while and also stayed at her parents’ place. She and [Child 1] would share a bedroom. It was a stressful time, but she would always look after him.

3. Documents indicate that Ms Noyce contacted the Department on 21 February 2017 and stated that “she and [Child 1] were currently homeless and they sleep in their car or are couch surfing”. Ms Noyce noted at the time that [Child 1] has a drug problem and he will not go to school (folio 30).

4. Ms Noyce told me that she could provide several letters to support her statements, however no additional evidence was received from her. Ms Noyce also did not provide any further comments in relation to the additional evidence from Mr Eales.

Conclusion

1. In this case Mr Eales notified the Department on 21 November 2016 that Ms Noyce no longer had care of [Child 1], as he was living with his girlfriend. Evidence provided by Mr Eales indicates that [Child 1] had been staying at Ms [A’s] place (his girlfriend’s sister) since 14 November 2016. Ms Noyce did not provide any evidence to support her claim that [Child 1] remained in her care.

2. I note here that once an application for a child support assessment is accepted, child support is payable until the day before a “terminating event happens” in accordance with subsection 31(2) of the Act.

3. Section 12 of the Act deals with a series of circumstances giving rise to the happening of a terminating event, including the death of the child, the child turning 18, the child becoming a member of a couple and so on. Relevantly here, subsection 12(2AA) of the Act provides a terminating event happens in relation to a child if:

   (a) both of the parents of the child are not eligible carers of the child; and

   (b) there are no non-parent carers entitled to be paid child support in relation to the child.

4. An “eligible carer” is a person who “has at least shared care of the child”: subsection 7B(1) of the Act. A person “has shared care” of a child if “the person’s percentage of care for the child during a care period is at least 35% but not more than 65%” (subsection 5(3) refers). The term “percentage of care” is defined in subsection 5(1):

   percentage of care, in relation to a responsible person for a child, means the responsible person’s percentage of care for the child that is determined by the Registrar under Subdivision B of Division 4 of Part 5.

5. In accordance with subsection 5(1) of the Act the term “responsible person” for a child means a parent or non-parent carer of the child.

6. There is no evidence before me that there are any non-parent carers entitled to be paid child support in relation to [Child 1].

7. For paragraph 12(2AA)(a) to be satisfied, a determination under subdivision B of Division 4 of Part 5 of the Act, that both Ms Noyce and Mr Eales have care percentage of less than 35%, is required.

8. Here, prior to Mr Eales’notification in November 2016, there was an existing care percentage determination in place (100% to Ms Noyce, 0% to Mr Eales), so that revocation of this existing determination, under subdivision C, is required before a determination of a parent’s percentage of care under subdivision B can be made.

9. A determination under subdivision B, here under section 49 of the Act, requires an assessment of the person’s percentage of care for the child during the care period, the care period being such period as is considered appropriate in all the circumstances.

10. I have considered the evidence before me and I consider the appropriate care period to be a 12 month period from 14 November 2016, when [Child 1] moved into Ms [A’s] house. Based on the evidence before me I find that Ms Noyce had no care (0% care) of [Child 1] in the care period and Mr Eales had no care (0% care) of [Child 1] in the care period.

11. Both parents having care percentages of less than 35%, I find that neither parent was an eligible carer as defined. It follows a terminating event within subsection 12(2AA) of the Act happened. Based on the available evidence, this happened on 14 November 2016.

12. Pursuant to section 74 of the Act, the Department is required to give effect to the happening of a terminating event by immediately taking appropriate action to take account of the happening of the terminating event, including amending the administrative assessment or otherwise. Thus, the terminating event has to be given effect from 14 November 2016.

13. I have reached the same conclusion as the objections officer and I therefore affirm the decision under review.

DECISION

The decision under review is affirmed.