Ruskin and Child Support Registrar (Child support)

[2020] AATA 4401

Ruskin and Child Support Registrar (Child support) [2020] AATA 4401 (3 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC019423

APPLICANT:  Mrs Ruskin

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member A Byers

DECISION DATE:  3 September 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change of care and that Mrs Ruskin retained 100% care of the children.  The decision takes effect (for child support purposes) from 8 July 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decision – whether there were special circumstances that prevented the application for review being lodged in time – special circumstances do not exist – tribunal decides not to make a determination under subsection 95N(2)

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. Mrs Ruskin and Mr [A] are the parents of [Child 1] and [Child 2] (the children) and this matter relates to their care during the relevant period.  There is no court order or written agreement between the parents regarding care. 

2. On 17 March 2016 Mr [A] contacted the Child Support Agency (CSA) and stated that, from 1 October 2015, the children were in the care of his mother for seven days a fortnight and in Mrs Ruskin’s care for the remainder.  Mr [A] was in gaol at the time.

1. At the time of contact the CSA was calculating Mr [A]’s child support liability on the basis that he had 6% and Mrs Ruskin 94% of the children’s care.

1. The CSA attempted to contact Mrs Ruskin by telephone and post on several occasions without success.  Having not heard from Mrs Ruskin, on 1 April 2016 the CSA decided that she had 49% and Mr [A] 0% of the children’s care from 1 October 2015. 

2. Mrs Ruskin did not lodge an objection to this decision until 30 August 2018.  On 12 October 2018 an objections officer disallowed Mrs Ruskin’s objection.  This was despite the fact Mr [A] has never been asked to provide evidence supporting his change of care claim and did not participate in the review. 

3. Mrs Ruskin sought review of the objections officer’s decision on 8 July 2020 and the application was heard by telephone on 3 September 2020 in Brisbane.  Mr [A] was invited but did not apply to be a party to the application. 

4. At hearing I accepted into evidence the “Section 37(1) Statement and Documents” provided by the CSA, comprising folios 1 to 79 (marked Exhibit 1) and documentation supplied by Mrs Ruskin (marked Exhibit A).  Mrs Ruskin gave sworn evidence.

5. Mrs Ruskin said she was not seeking a review to attempt to collect child support from Mr [A].  Rather, Centrelink has evidently raised a family tax benefit debt of around $19,000 against Mrs Ruskin based on the CSA’s decision.     

CONSIDERATION

1. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Child Support (Assessment) Act 1989.  Section 49 of the Act applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care. 

10.  As noted, Mr [A] contacted the CSA on 17 March 2016 to advise Mrs Ruskin and his mother shared the children’s care essentially on a week-about basis.  Mrs Ruskin’s case is simply that Mr [A] lied and that there was no change of care.

11.  Mrs Ruskin said she was unaware a care decision had been made until she contacted the CSA (in May 2018) about another matter.  Mrs Ruskin said she moved at one point and did not see a need to inform the CSA as the CSA had earlier informed her it had exhausted all avenues in its attempt to collect child support on her behalf.

12.  It appears Mr [A] has spent a number of years in gaol since 2008 and I accept he has never had the children in his overnight care since separation in 2006.  As to whether there was a change of care as Mr [A] alleged, Mrs Ruskin has provided three referee statements supporting her claim he was lying.  One statement is by Mr [A]’s sister, Ms [B], who writes:

I am writing in regards to an appeal lodged by Mrs Ruskin and wish to state that [Mr A] is my brother and he has made a false allegation that Mrs Ruskin shared custody with him and our family during the time stated until now.

My mother and I have had occasional care of [Child 1] and [Child 2] in family visits over the years but at no time has [Mr A] had 50% custody of [Child 1] and [Child 2] .

13.  This is supported by statements from Mrs Ruskin’s mother, Mrs [C], and by her (now adult) daughter, [Child 1].  [Child 1] states she and [Child 2] have remained in Mrs Ruskin’s sole care since separation.

14.  Plainly, there was no change of care and I find accordingly.  The children have remained in Mrs Ruskin’s sole care at all relevant times since separation.  The decision under review will therefore be set aside.  It also follows that Centrelink will need to revoke the associated family tax benefit debt(s) raised against Mrs Ruskin.

15. As Mrs Ruskin sought review more than 28 days after being given notice of the objections officer’s decision, section 95N of the Child Support (Registration and Collection) Act 1988 provides that (for child support purposes) the decision takes effect on the date review was sought (8 July 2020).  In this regard, I am satisfied there are no special circumstances which prevented Mrs Ruskin from lodging an application for review within the required timeframe.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change of care and that Mrs Ruskin retained 100% care of the children.  The decision takes effect (for child support purposes) from 8 July 2020.