RZQY and Child Support Registrar (Child support second review)

[2023] AATA 1517

RZQY and Child Support Registrar (Child support second review) [2023] AATA 1517 (6 June 2023)

Division:GENERAL DIVISION

File Number(s):      2021/6864

Re:RZQY

APPLICANT

AndChild Support Registrar

RESPONDENT

AndVDYF

OTHER PARTY

DECISION

Tribunal:Senior Member A Poljak

Date:6 June 2023

Place:Sydney

The decision under review is affirmed.

.....................................[SGD]...................................

Senior Member A Poljak

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.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether the care percentage determination should be revoked – whether a pattern of care existed – unable to determine on the evidence a pattern of care to warrant a revocation of the percentage of care determination – decision under review affirmed.

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)

REASONS FOR DECISION

Senior Member A Poljak

6 June 2023

1. The applicant (mother) and other party (father) are the separated parents of two children. These proceedings relate to the eldest child only (child).

2. A child support case was first registered on 14 May 2014 in relation to the child. With effect from 7 September 2020, the administrative assessment of child support for the child reflected that from 1 November 2019, the other party had 56% care of the child and the applicant had 44% (existing care percentage determinations).

3. On 14 December 2020, the applicant notified the Child Support Registrar (Registrar) that she had 77% care of the child and the other party had 23% care since 1 November 2019.

4. On 21 December 2020, the applicant was contacted by the Registrar and indicated that the change in care occurred on 12 November 2019. The same day, the other party advised the Registrar that he disagreed with the applicant’s notification and indicated that there was no pattern of care for the child.

5. On 1 March 2021, a delegate of the Registrar decided that there was insufficient evidence from both parties regarding their percentages of care and determined that each parent had 50% care for the child from 12 November 2019 (original decision).

6. The applicant objected to that decision on 13 April 2021. On 12 May 2021, a delegate of the Registrar disallowed the applicant’s objection (objection decision).

7. On 3 June 2021, the applicant applied for review of the objection decision.

8. On 19 August 2021, the Social Services & Child Support Division of the Administrative Appeals Tribunal (SSCSD) affirmed the objection decision. The SSCSD found that there was no discernible pattern of care for the child from 12 November 2019 and that in the absence of a discernible pattern of care, that from 12 November 2019, the care of the child was shared by the parents on a 50/50 basis. This is the decision under review in these proceedings.

   Issues

9. The issues to be determined in these proceedings are:

   (a)Whether the existing care percentage determination be revoked and if so:

   (i)From when do the revocations take effect?

   (ii)What were the parents’ percentages of care for the child during an appropriate period (which would constitute the ‘care period’)?

   (iii)From when do the new care percentage determinations take effect?

10. The applicant also seeks review of a debt notice she received from Centrelink as well as the care percentages relating to her other child. These issues however are beyond the scope of this review.

    Consideration

11. The dispute now, as I understand it, is the extent to which both parties provided care for the child from 12 November 2019 until 9 May 2021. The Child Support (Assessment) Act 1989 (Cth) (Assessment Act) provides that the care percentage must be determined for a ‘care period’ which is effectively defined as ‘…such period…as the Registrar considers to be appropriate having regard to all of the circumstances’. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the pattern of care that a person has had, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period, commencing from 12 November 2019 is appropriate in this case (care period). Particularly given the existing care percentage determinations relate to this period.

12. The initial issue to be determined is whether the pattern of care for the child changed and whether the care that was occurring corresponds with the existing care percentage determinations.

13. For the purpose of determining whether a person has had, or is likely to have, a pattern of

    care for the child I must consider evidence of the care the person has had, or the actual care, from the date of the asserted change in care and evidence of the pattern of care the person is, or was, likely to have at that point in time.

14. There were no court orders or written parenting plans in existence during the care period.

15. The SSCSD set out in its decision the submissions and evidence of the applicant and other party. At hearing, they both agreed that it was an accurate reflection of their evidence. It is relevantly detailed as follows:

    (a)The other party’s care of the child was two weeks in November 2019, two weeks in December 2019; two weeks in January 2020; four weeks in February 2020 and three weeks in March 2020. Notwithstanding, the other party stated that he believed the care should be recorded as 50% to each of the parents as he said that he and the applicant had agreed to a ‘two weeks on and two weeks off’ arrangement. The other party provided a care calendar from November 2019 to April 2020, and this shows that from 1 November 2019 to 30 April 2020 he had 102 nights of care out of a possible 182 nights (which is 56%).

    (b)The applicant contended that her care was at least 70%. She stated that the care of the child had always been shared care: 70% to her and 30% to the other party. The applicant stated that while she agreed that the other party had two weeks of care in November 2019, she did not agree that he had two weeks of care in December 2019 or in January 2020. She stated that she agreed that the other party had four weeks of care in February 2020 but that was because his mother was visiting from overseas. She stated that from March 2020 the care was 70% to her and 30% to the other party. She provided a care calendar on 14 December 2020 which showed that the other party had 12 nights of care in November 2019; four nights in December 2019; two nights in January 2020; 28 nights in February 2020; nine nights in March 2020;18 nights in April 2020; nil nights in May, June, and July 2020; one night in August 2020; five nights in September 2020 and seven nights in October 2020.

16. At hearing the applicant and other party both agreed that there was no pattern of care during the care period. They both said that the child decided when to stay with the applicant or other party. The applicant submitted that despite the absence of a pattern of care, the child spent more time with her than with the other party. She stated that the other party was only submitting care was 50/50 in retaliation. The applicant also stated that the child did not want to stay with her father for a period and expressed that the circumstances during the care period were very difficult.

17. The applicant has also provided two third-party letters in support. Namely, a letter dated 22 April 2021 from the applicant’s cousin and a letter dated 22 April 2021 from the principal at the child’s school. The letters of support are non-specific and lacking in detail in relation to the care arrangements. As such, they provide very limited insight into the actual care arrangement of the child during the care period.

18. Considering the available evidence, I am satisfied that both parents were sharing the care of the child in the care period. However, I am not satisfied as to the care actually taking place and am unable to determine a pattern of care from 12 November 2019. This corresponds with the determination made by the SSCSD.  

19. Accordingly, it is not appropriate to revoke the existing care percentage determinations under sections 54F, 54G or 54H of the Assessment Act.

    Decision

20. The decision under review is affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

...................................[SGD].....................................

Associate

Dated: 6 June 2023

Date(s) of hearing:	23 May 2023
Applicant:	Self-Represented
Solicitor for the Respondent:	Mr M Burnham, Sparke Helmore
Other Party:	Self-Represented