Peracca and Peracca (Child support)

[2024] AATA 2017

Peracca and Peracca (Child support) [2024] AATA 2017 (29 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027436

APPLICANT:  Mr Peracca

OTHER PARTIES:  Child Support Registrar

Ms Peracca

TRIBUNAL:Member J Thomson

DECISION DATE:  29 May 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that in respect of the child, [Child 1], the existing care percentage determination of 100% to Ms Peracca is revoked from 24 June 2023 and replaced with a new care percentage determination of 0% from 25 June 2023.

CATCHWORDS 

CHILD SUPPORT – percentage of care – neither parent had care of child since 25 June 2023 – pre-existing care percentages revoked – decision under review set aside

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. Mr Peracca and Ms Peracca are the parents of [Child 1], born 2005.

2. Mr Peracca seeks review of an objection decision made by Services Australia (Child Support) on 13 January 2024. This decision disallowed his objection to an earlier Child Support decision dated 12 October 2023, deciding to refuse to reflect the care of [Child 1] as 0% to both parents from 27 July 2023, notified on 15 August 2023.

3. The Tribunal heard the matter on 18 April 2024. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 140), admitted into evidence and marked Exhibit 1. Mr Peracca provided documentation (folios A1 to A6), admitted into evidence and marked Exhibit A and Ms Peracca provided documentation (folios B1 to B10), admitted into evidence and marked Exhibit B.

4. Both parents had copies of the documents contained in Exhibits 1 and B referred to in the preceding paragraph with them at the hearing. Ms Peracca did not have copies of the Exhibit A documents but was content for the hearing to proceed notwithstanding she did not have copies of those documents with her at the hearing. In the interests of judicial fairness, the Tribunal arranged for copies of the Exhibit A documents to be sent to her post hearing and allowed her a period of five business days from receipt to consider those documents and provide any comments thereon. Ms Peracca has not responded.

5. On 19 March 2024, the Tribunal refused an application by the Child Support Registrar for a non-disclosure order regarding an undated statement by Mr [Child 1] , the child in the assessment until [date] 2023, who attained his 18^th birthday on [date] 2023.

6. Mr [Child 1] ’s undated statement was admitted into evidence and added to Mr Peracca’s documents, Exhibit A. Ms Peracca acknowledged having received a copy of this statement prior to the hearing and was familiar with its contents.

ISSUES

1. The issues which arise in this case are:

   ·      Has there been a change in the pattern of care [Child 1] which requires the existing percentages of care to be revoked and a new percentage determination made? And if so;

   ·      From what date should the new percentage of care determination apply?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documents contained in Exhibits 1, A and B before the Tribunal at the hearing.

2. The statutory provisions relevant to this matter are contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, 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, relevantly, 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”.

3. To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care being had or likely to be had by the parents by reference to an appropriate care period. Child Support generally considers a period of 12 months to be appropriate, but a shorter period may be considered, depending on the circumstances of the case.

4. On 15 August 2023, Mr Peracca notified Child Support of a change in care of [Child 1] which he said occurred on 20 July 2023. Prior to his notification, the pre-existing care percentage determinations were 100% to Ms Peracca and 0% to Mr Peracca from 20 February 2023.

5. This case relates to the care of an adolescent teenager in the latter stages of his designation as a child in the assessment, approximately two months prior to his attaining his 18^th birthday on [date] 2023 when he ceased to be a child in the assessment and attained adult status.

6. The care period under consideration is therefore relatively short – from 25 June 2023 (the change in care date nominated by Mr Peracca in his telephone discussion with Child Support in the objection process on 13 October 2023 (see page 84 of Exhibit 1) to [date] 2023 (the day before [Child 1] turned 18 and ceased to be a child in the assessment).

7. Mr Peracca’s evidence at the hearing centred on his submission that [Child 1] had been living with his girlfriend, [Ms A] at her parents’ house in [Town 1] [of] southern Queensland, since 25 June 2023, and was therefore not in Ms Peracca’s care from that date until the end of the child support case on [date] 2023. He acknowledged and agreed in the course of discussions with the Tribunal at the hearing that he did not dispute Ms Peracca’s level of care of [Child 1] at 100% up until 25 June 2023.

8. Both parents gave evidence of them living in close proximity with each other and the [Ms A’s] family in [Town 1] and [communities] .

9. In support of his submission, Mr Peracca has provided a number of 3^rd party witness statements, principally from [Child 1]’s brother, Mr [B] (see page 89 of Exhibit 1) and Mrs [C], the mother of [Child 1]’s girlfriend, [Ms A] (see page 69 of Exhibit 1), and ultimately, [Child 1]’s undated statement, admitted into evidence at the hearing. These statements attest to [Child 1] residing primarily with his girlfriend at her parents’ house from 25 June 2023.

10. Other 3^rd party statements were provided by the parents and taken into account by the Tribunal. However, the Tribunal finds the statements referred to in the preceding paragraph more reliable in their details regarding [Child 1]’s living arrangements in the care period under consideration.

11. Ms Peracca’s evidence at the hearing focussed on her financial support for [Child 1], significantly her purchase of a motor vehicle for his use in March 2023. However, in discussions with the Tribunal in the course of the hearing, she acknowledged and agreed that [Child 1] had been spending more time at his girlfriend, [Ms A]’s family home since 25 June 2023. She was unable to offer any evidence as to the number of nights he had spent at her house since 25 June 2023 and acknowledged and agreed that since that date he had been moving freely between the parents’ and the [Ms A]’s houses. She acknowledged and agreed her care of [Child 1] from that date onward was sporadic.

12. At the conclusion of the hearing, both parents acknowledged and agreed to accept that neither parent had care of [Child 1] from 25 June 2023 until the end of the child support case on [date] 2023.

13. The Tribunal is satisfied the evidence, on balance, is that the change in care of [Child 1] occurred on 25 June 2023, when [Child 1] went to live with his girlfriend, [Ms A] at her family’s house at [Town 1] and from that date, neither parent had care of him. Pursuant to section 49 of the Act, the Tribunal determines care percentages of 0% to each parent should be applied from 25 June 2023.

14. As Ms Peracca’s cost percentage will change as a consequence of the Tribunal’s decision, the Tribunal finds section 54F of the Act applies in this case and pursuant to that section the Tribunal revokes the pre-existing care percentage of 100% to Ms Peracca.

15. The Tribunal finds Mr Peracca notified Child Support of the change in care for [Child 1] on 15 August 2023, more than 28 days after the change in care date (25 June 2023) determined by the Tribunal as set out in the Reasons above. Accordingly, pursuant to subparagraph 54F(3)(b)(ii) of the Act, the date of effect of the revocation for Ms Peracca as the parent with reduced care will be 24 June 2023, that being the day before the change of care day.

16. As the Tribunal has reached a different conclusion to that reached by the objections officer in the decision under review, the Tribunal sets aside that decision and decides that care percentages of 0% should be recorded for each parent from 25 June 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that in respect of the child, [Child 1], the existing care percentage determination of 100% to Ms Peracca is revoked from 24 June 2023 and replaced with a new care percentage determination of 0% from 25 June 2023.