Park and Jarvis (Child support)

[2019] AATA 6347

Park and Jarvis (Child support) [2019] AATA 6347 (12 December 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC017464

APPLICANT:  Mr Park

OTHER PARTIES:  Ms Jarvis

Registrar Child Support Agency

TRIBUNAL:  Member S Cullimore

DECISION DATE:  12 December 2019

DECISION:

The decision under review is set aside and a new decision is substituted that the care percentages for [Child 1] are 100% to Ms Jarvis and 0% to Mr Park effective in the new child support assessment from 4 February 2019.

This means that the application for review is partly successful.

CATCHWORDS

CHILD SUPPORT – percentage of care – likely pattern of care – date of effect of care decision – 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 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. The following information is taken from the records of the Department of Human Services – Child Support (the CSA) and is not in dispute, and the Tribunal finds each matter as a fact.

2. Mr Park and Ms Jarvis are the parents of two children, [Child 2] now aged 20 and [Child 1] now aged 17.

3. The child support case was first registered in 1999. It has been Registrar Collect since 13 December 2007.

4. From 13 February 2013 onwards the care percentages for both children were recorded by the CSA as 100% to Mr Park and 0% to Ms Jarvis.

5. Ms Jarvis was then, and continued to be, the payer of child support, at the Minimum Annual Rate.

6. On 24 January 2019 Ms Jarvis contacted Centrelink in person and advised that she had had the full-time care of [Child 1] since 15 December 2018.[1]

   [1] C13

7. That day, she also submitted a Claim for Family Tax Benefit, which Centrelink granted from 15 December 2018.[2]

8. She notified the change in care to the CSA on 4 February 2019, when she applied for a new child support case.[3]

9. On 12 March 2019 a delegate decided to change the care percentages to 0% to Mr Park and 100% to Ms Jarvis, the change of care being effective in the child support assessment from different dates for each parent (see below). This “reversed the case” and made Mr Park liable to pay child support to Ms Jarvis of about $10,000pa.

10.Mr Park lodged a verbal objection to that decision on 3 April 2019.[4]

11.On 23 August 2019 an objections officer disallowed the objection.

12.On 23 September 2019 Mr Park sought a further review by this Tribunal.

DOCUMENTARY EVIDENCE AND HEARING

[2] C27

[3] C24 and see below

[4] C53

1. The Tribunal had before it a bundle of documents provided by the CSA. The documents in this bundle are referred to in this decision as C1 to C197.

2. Mr Park attended the hearing via teleconference and gave evidence and made verbal submissions.

3. Ms Jarvis was invited to participate in the hearing but declined to do so.

ISSUES

16.The issues to be decided by the Tribunal are:

·which of the care provisions contained in the Child Support (Assessment) Act 1989 (the Assessment Act) apply to the circumstances; and

·what are the correct care percentages in this case and from when do they apply?

CONSIDERATION

The relevant child support law

17.The CSA makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Assessment Act.

18.The legislative scheme requires the CSA to determine a percentage of care where an application is made to it for a child support assessment, or if a new care percentage should be fixed following notification to it of a change of the care arrangements.

19.Care percentages normally follow the pattern of actual care which is occurring between the parents: section 50 of the Assessment Act.

20.Actual care may be worked out based on the number of nights that the child was or is likely to be in the care of the person: section 54A.

21.Whether a pattern exists, and what that pattern is, is to be assessed over a “care period”. A care period is not of defined duration: it is generally 12 months, but can be shorter or longer in a particular case.

22.However, if section 51 of the Assessment Act applies, then section 50 does not apply: this is provided for by subsection 50(4).

23.Section 51 of the Assessment Act is concerned with court-ordered care, where the court orders are not being complied with.

24.Sections 51 to 53A provide that in some circumstances care percentages should follow the terms of court orders, although those court orders are not being complied with. These decisions, if made, are put in place for a limited time only, and are known as “interim care determinations”.

25.These provisions are intended to cover situations where one parent has reduced care because of the actions of the other parent in depriving that parent of care, and it is requirement in this scenario that the parent with the reduced care “is taking reasonable action to ensure” that the court orders are being followed (see subparagraph 51(1)(d)).

26.Changes to the care percentages are not necessarily reflected in the parents’ cost percentages. A cost percentage is the proportion of the costs of care of a child a parent is deemed to meet via providing care. Cost percentages (not care percentages) are added into the formula for the calculation of child support.

27.Under section 54F of the Assessment Act. if the Registrar is notified that the actual care arrangements do not correspond with the existing care percentages, and if changing the care percentages would produce a change in the person’s cost percentage, then the Registrar must make a new care determination.

28.For care changes which occur after 1 July 2018, if a new care determination is made, and if the care change notification is made more than 28 days after care has changed, then (i) for the person with increased care the revocation of the old care determination takes effect at the end of the day before notification, but (ii) for the person with reduced care the revocation of the old care determination takes effect at the end of the day before care in fact changed: see paragraph 54F(3)(b).

29.The Tribunal’s role in care percentages cases is that it may only review the legal correctness of the original care decision, which was made in this case on 12 March 2019. This is known as a “point in time” approach.

30.Subsequent care events and care changes must generally be disregarded, as they are properly the subject of further change in care notifications and further decision-making processes and reviews.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

31.Against the above background, the Tribunal has carefully considered all of the information on the CSA file and the evidence and submissions (both verbal and documentary) as presented by both parents to the CSA, and by Mr Park to the Tribunal.

32.The Tribunal considered first which provisions of the Assessment Act should be applied.

33.The Tribunal concluded that this matter is to be determined under subparagraph 50(1)(a)(i) of the Assessment Act (actual care when an application is made to the CSA for an assessment of child support) rather than being a “change of care” matter as such, and that in any event the matter does not fall under section 51 onwards (contravention of court orders).

34.Mr Park told the Tribunal that “court orders” of some kind were made at least 10 years ago. These court orders related to both children and were made (he said) by the [Named] Magistrates Court”. These orders gave him sole care of both children.

35.He stated that he did not have a copy of these court orders. He stated that the children had been “at risk” in the care of Ms Jarvis, who was a serial drug user, and that [state] Family Services had been involved in the court proceedings. He stated that the children “should never have been in her care” at any time because of these court orders and that is why it was unfair that any child support should be paid by him.

36.It seems to the Tribunal more likely than not that the court orders were made under some sort of State child protection legislation, and not under family law legislation.

37.In any event, whatever kind of care orders they were, Mr Park has taken no steps to have the care issues for [Child 1] dealt with via mediation or by the courts. The parent with the reduced care must initially take, and must continue to take, “reasonable action” to ensure that the court orders are being followed (see subparagraph 51(1)(d) of the Assessment Act). This is an ongoing obligation, and so sections 51 onwards of the Assessment Act do not apply to the facts of this case.

38.This is therefore not a matter where an interim care determination can be made, and actual care must be the basis of the decision in this matter.

39.The history of the care of [Child 1] since August 2018 is complex.

40.The parties were agreed that [Child 1] had left the care of Mr Park on 30 August 2018.

41.They were also agreed that he left the care of Ms Jarvis no later than 29 July 2019, to live independently.

42.The point of contention for Mr Park was when [Child 1] had entered the care of Ms Jarvis, and how long he was in her care for.

43.Ms Jarvis told the CSA, on 22 June 2019, that [Child 1] had been in her full-time care continuously since 15 December 2018.[5] 

[5] C106

44.Documentary corroboration of her care of [Child 1] is scant. The only document of significance is a school enrolment form for [Named] High School. That states that [Child 1] was enrolled for year 11 from 29 January 2019.[6]

[6] C26

45.Centrelink subsequently discovered that [Child 1] had in fact left the school on 15 May 2019.[7]

[7] C158

46.[Child 1] had apparently claimed some Centrelink payments between leaving the care of Mr Park and 15 December 2018. These claims had been rejected.[8] The documents regarding those Claims would probably not assist the Tribunal to resolve care issues.

[8] They were probably UTLAH claims.

47.Mr Park, in essence, had no idea at all of the whereabouts of [Child 1] after he had left Mr Park’s care in August 2018. He could produce no evidence from any person on the issue of when Ms Jarvis had or did not have care of [Child 1].

48.He has had no contact with [Child 1] since August 2018.

49.His older son [Child 2] had told him at some point (the Tribunal gathered that this was probably in June 2019) that [Child 1] “was no longer at his mother’s” but he acknowledged that he could now not produce any written statement of [Child 2] (or indeed of [Child 1]) for the purpose of this matter.

50.Ms Jarvis did not participate in the hearing. The Tribunal therefore could not question her about these matters.

51.The discrete matter before the Tribunal is the legal consequence of the notification by Ms Jarvis of a “change of care” which she made to Centrelink on 24 January 2019, however in this unusual matter, the Tribunal must take into account that at least three further relevant decisions have been made by the CSA.

52.The Tribunal cannot review these other matters, as such, because they have not been subject to a decision by an objections officer. However, some aspects of these matters do impact upon this matter, and so these subsequent decisions need to be identified and addressed.

53.On 6 June 2019 Mr Park notified the CSA that neither parent had had any care of [Child 1] since 30 August 2018.[9]

[9] C95 – 97

54.On 27 June 2019 the CSA decided that both parents had less than 35% care from 15 December 2018 to 20 January 2019 and so the child support case should be “suspended” in that period.[10] Neither parent has objected to this decision.

[10] C131

55.However, a file note dated 28 June 2019 records what appears to be a further decision that a terminating event occurred on 30 August 2018 (i.e. not on 15 December 2018).[11] That inconsistency cannot be resolved by the Tribunal.

[11] C140

56.By another decision also dated 28 June 2019 the CSA decided that they should accept a new child support case application from Ms Jarvis, the case commencing on 4 February 2019.[12] Neither parent has objected to this decision.

[12] C144

57.That decision is inconsistent with the decision under review. If there was no child support case in December 2018 and January 2019, and the “new” case was not registered until 4 February 2019, the care percentages in issue cannot be effective for child support purposes until that date.

58.By yet another decision, dated 23 August 2019, the CSA decided that the case for [Child 1] should be ended on 29 July 2019.[13] Mr Park argued that that date should be earlier, but in that case he must object to that decision. It appears from the CSA file that he has not done so. The Tribunal cannot make a decision about that matter.

[13] C172

59.In short, subsequent to the decision under review, the child support case for [Child 1] was suspended and a new case was then registered. Those matters impact upon the terms of the Tribunal’s decision in this matter.

60.The decision under review was to “change” the care percentages to 0% to Mr Park from 15 December 2018 and 100% to Ms Jarvis from 21 January 2019. That latter date (21 January 2019) is itself an error. Ms Jarvis notified Centrelink on 24 January 2019 that care had changed (this notification being deemed also to be made to the CSA that day).

61.Because of subsequent decisions made by the CSA, however, there is now no longer a child support case in existence on the date of notification or the change of care date.

62.Subparagraph 50(1)(a)(i) of the Assessment Act does enable the CSA to determine actual care when an application is made to it for an assessment of child support. This, the Tribunal has decided, is what occurred here.

63.The evidence as to the care of Ms Jarvis is very unsatisfactory, but nevertheless, on balance, and in view of the school enrolment evidence, the Tribunal is satisfied that Ms Jarvis did have the full-time care of [Child 1] as at 4 February 2019, when the “new” child support case started.

64.The proper outcome in this matter, in the Tribunal’s view, is therefore to find that the “new” care percentages of 100% to Ms Jarvis and 0% to Mr Park are effective for child support purposes from the commencement of the “new” child support case on 4 February 2019.

DECISION

The decision under review is set aside and a new decision is substituted that the care percentages for the child [Child 1] are 100% to Ms Jarvis and 0% to Mr Park effective in the new child support assessment from 4 February 2019.

This means that the application for review is partly successful.