Sadler and Child Support Registrar (Child support)

[2017] AATA 2952

Sadler and Child Support Registrar (Child support) [2017] AATA 2952 (23 December 2017)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/MC012270

APPLICANT:  Miss Sadler

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member W Kennedy

DECISION DATE:  23 December 2017

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child Support – Percentage of care – Determination of the likely pattern of care – No Change in pattern of care – Decision under review affirmed

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. Miss Sadler and Mr Sabatelli are the parents of two children in respect of whom there is a child support assessment.  This application concerns the percentages of care of one of the children, [Child 1], used in the child support assessment.

2. From 31 January 2017 the child support assessment was based on Miss Sadler having 61% care and Mr Sabatelli having 39% care of [Child 1].  This is consistent with court orders dated 13 December 2016.

3. On 10 April 2017 Miss Sadler advised the Child Support Agency of the Department of Human Services (the Department) that she had 100% care of [Child 1] from 14 March 2017.  On 24 May 2017 the Department decided not to change the assessment on the basis that Mr Sabatelli advised that he had only missed one care event and that otherwise the care arrangements remained consistent with the court orders.

4. On 29 May 2017 Miss Sadler objected to the decision, restating that she had 100% care of [Child 1].  Both parties provided third party statements in support of their assertions.  On 21 July 2017 a Department objections officer disallowed the objection, finding that there was insufficient evidence to determine a new pattern of care.

5. On 3 August 2017 Miss Sadler applied to this Tribunal.  The Tribunal considered the application on 18 December 2017.  Mr Sabatelli declined to participate in the hearing.  The Department provided documentary material which was numbered 1 to 169 and which was provided to Miss Sadler in advance of the hearing.  Miss Sadler attended the hearing by conference telephone and gave her evidence under an affirmation.  The Child Support Registrar did not attend the hearing and was not represented.  At the hearing Miss Sadler offered to provide further documentary material and the hearing was adjourned to give her an opportunity to do so.  Miss Sadler later provided further evidence in the form of a letter from the Department of Health and Human Services of Victoria and various internal documents concerning an application for an Interim Accommodation Order.  The Tribunal reconvened on 23 December 2017 without the parties and determined the application.

ISSUES

1. In this case the Tribunal has to decide the percentage of care that each of the parents has or is likely to have of [Child 1] in the care period.  If this is different to the percentage of care used in the child support assessment, the Tribunal must decide the date of effect of such change.

CONSIDERATION

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act).

2. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act.  The formula contains a number of elements called “particulars of the assessment”.  This includes the “percentage of care” for each parent in relation to the children.

3. The Department makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act.  These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and for those determinations to be revoked and remade in specified circumstances.

10.  At the hearing Miss Sadler repeated the oral evidence that she had earlier provided to the Department and drew the Tribunal’s attention to the documentary evidence she had earlier provided in the form of a third party letter.

11.  Mr Sabatelli did not attend the hearing, however he has previously consistently asserted that care continues to be consistent with the court orders. 

12.  Both parties have provided contradictory third party statements.  Mr Sabatelli’s third party evidence supports his evidence.  The third party letter provided by Miss Sadler states that there was a change of care in February 2017 rather than March 2017 as claimed by Miss Sadler.  At the hearing Miss Sadler was unable to say why the dates differed.  Following the hearing Miss Sadler provided additional evidence obtained from the Department of Health and Human Services of Victoria.  The primary document is a letter from [Ms A], an “Advanced Child Protection Practitioner” of that Department, dated 14 December 2017 and addressed to the Tribunal.  In the letter [Ms A] advises that [Child 1] “identified as residing in the primary care of Ms Sadler” at least since 9 August 2016.  [Ms A] also advises that [Child 1] was “made subject to an Interim Accommodation Order to Ms Sadler on the 21^st September 2017.”

13.  It appears that the application for the Interim Accommodation Order has been made under the Children, Youth and Families Act 2005 (Vic). That legislation does not define the term “primary care”. The term is also not defined in the Act, however the Department uses the term to refer to a percentage of care between 65% and 86%. The use of the word “primary” in the letter from [Ms A] implies that someone other than Miss Sadler provides secondary care, and on that basis the letter from the Department of Health and Human Services of Victoria does not support Miss Sadler’s claim to have had 100% care of [Child 1] since 14 March 2017. Moreover the letter suggests that the situation has been unchanged since at least August 2016, again not supporting Miss Sadler’s claim of a change of care on 14 March 2017.

14.  The Interim Accommodation Order referred to by [Ms A] is not in evidence but it is possible that the terms of that order would support Miss Sadler’s claim of having 100% care of [Child 1].  However as that order was only made on 21 September 2017 it is unlikely that it would support Miss Sadler’s claim in relation to a change of care on 14 March 2017.

15.  After carefully considering all of the evidence available to it the Tribunal has determined that there is insufficient evidence of a change in care on 14 March 2017 and the Tribunal therefore affirms the decision of the Department.  The Tribunal notes that the care of [Child 1] will be further considered at a Victorian court hearing set for 21 February 2018.  Depending on the terms of the Interim Accommodation Order Miss Sadler may wish to further discuss [Child 1’s] care with the Department in relation to the child support assessment now or following the hearing in February 2018. 

DECISION

The decision under review is affirmed.