Reiner and Wellbourn (Child support)

[2023] AATA 3297

Reiner and Wellbourn (Child support) [2023] AATA 3297 (17 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025874

APPLICANT:  Mr Reiner

OTHER PARTIES:  Child Support Registrar

Ms Wellbourn

TRIBUNAL:Member S Letch

DECISION DATE:  17 August 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care for [the child] is to be recorded as 0% to Ms Wellbourn and 0% to Mr Reiner from 20 August 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change in care for the child – whether child was in care of grandparents – 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 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

1. Mr Reiner and Ms Wellbourn are the parents of [the child]. Care for [the child] had been recorded by Services Australia – Child Support (Child Support) as 58% to Ms Wellbourn and 0% to Mr Reiner when, on 15 December 2022, Mr Reiner reported to Child Support that it had been some time since [the child] had been in Ms Wellbourn’s care. On 10 January 2023, Child Support decided to record both parents as having 0% care, but only from 15 December 2022, and not an earlier date.

2. Mr Reiner promptly objected. His objection was disallowed; it is convenient to set out some extracts from the objections officer’s decision dated 14 March 2023:

   DECISION UNDER REVIEW

   The decision made on 10 January 2023, to accept that Mr Reiner provides 0% care and Ms Wellbourn provides 0% care of [the child] from 15 December 2022.

   Mr Reiner has objected to this decision because [the child] went to Ms Wellbourn’s on 20 August 2020. [The child] only stayed with Ms Wellbourn for three months, and not until 15 December 2022.

   …

   In this instance, Mr Reiner notified of a change in care arrangements for [the child], stating that Ms Wellbourn provides 0% care and he provides 0% care of [the child]. Mr Reiner did not know the date [the child] left Ms Wellbourn’s care and, consequently, we used the date of 15 December 2022.

   Mr Reiner objected to our decision because [the child] only stayed in Ms Wellbourn’s care for three months from 20 August 2020, and then returned to [Ms A]’s care.

   …

   The letter provided by Mr Reiner from [the child]’s grandmother, [Ms A], stated that two years ago, [the child] went back to Ms Wellbourn’s, however for only three months, and subsequently returned to [Ms A]’s care.

   While we accept that [Ms A] has provided care of [the child], there is no information to show the extent that [Ms A] has overall responsibility for the child. Similarly, there is no information available to show that Ms Wellbourn is not providing a level of care of [the child] from 20 August 2020.

   Given Mr Reiner contacted us on 15 December 2022, we consider it reasonable to accept that Ms Wellbourn provides 0% care and Mr Reiner provides 0% care of [the child] from 15 December 2022. We cannot be satisfied the child support case for [the child] should end from an earlier date.

   Therefore, we have made the decision to accept that Ms Wellbourn provides 0% care and Mr Reiner provides 0% care of [the child] from 15 December 2022.

   The objection is disallowed.

3. Mr Reiner participated in the Tribunal’s hearing by conference telephone. Ms Wellbourn did not answer the Tribunal’s attempted telephone calls at the start of the hearing; the hearing proceeded in her absence.

4. Mr Reiner told the Tribunal that he has not seen [the child] since she was three months old. When “child support kicked off” in around August 2020, he was recorded as having 47% care, and Ms Wellbourn 53%. However, he had no care, so does not understand how Child Support “got it so wrong”. He said he “just left it” because if Ms Wellbourn had 100% care, his liability would be lower if he had been recorded as having some care. As time went on, Mr Reiner’s mother “bumped into [the child] and her grandmother” (Ms Wellbourn’s mother) who said that [the child] had not lived with Ms Wellbourn since she was seven years of age – apart from one period of three months (from around January 2021, according to the letter from Ms Wellbourn’s mother, [Ms A], at folio 11 of the Child Support hearing papers). Mr Reiner observed that “no one has ever been able to speak to Ms Wellbourn”, who has not communicated at all with Child Support. Mr Reiner said he does not understand why Child Support has “ignored” his evidence, and the evidence of Ms Wellbourn’s own mother. Mr Reiner said he “doesn’t care about money” – he is happy to pay child support, but to the person actually caring for [the child].

Application of the law

1. Care percentage determinations are governed by Subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced by a new determination reflecting the new pattern of care.

2. It is important to observe that these are “point in time” assessments. Every change to the pattern, or likely pattern, of care is subject to separate notification and a separate decision about whether to revoke the existing recorded pattern and replace it.

3. The best evidence I have is the letter from [Ms A] dated 30 January 2023 at folio 11 of the Child Support hearing papers. Ms Wellbourn has not participated in Child Support processes; she did not participate in these proceedings. Child Support did not supply historical materials setting out how it arrived at a care percentage of 58% for Ms Wellbourn from 20 August 2020.[1]

   [1] The Tribunal must resolve applications in a manner that is fair, just, economical, informal and quick: section 2A of the Administrative Appeals Tribunal Act 1975.

4. I find that [the child] (now 17 years of age) has lived with her maternal grandmother for all but a brief three month period starting on or about 30 January 2021. From on or about 1 May 2021, [the child] has continued to live with her grandmother.

5. The outcome Mr Reiner seeks is that the child support he has been rendered liable to pay from late 2020 should not be directed to Ms Wellbourn, who he says the evidence reveals had no care of [the child] at that time.

6. Changes in care percentages are subject to time limits in terms of the effect they take in a child support assessment. However, in situations where both parents are recorded as having 0% care, this is a “terminating event” for child support purposes, and takes effect retrospectively regardless of when a care change is notified.

7. Here, I consider the correct or preferable decision to be to record care of [the child] as 0% to both parents from 20 August 2020 (the date of the earlier recorded care, and on a date I find on the evidence available to me that [the child] was not in Ms Wellbourn’s care), notified on 15 December 2022.

8. As the Tribunal has reached a different conclusion to the objections officer, the decision under review will be set aside.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that care for [the child] is to be recorded as 0% to Ms Wellbourn and 0% to Mr Reiner from 20 August 2020.