Salah and Abbas (Child support)

[2022] AATA 369

Salah and Abbas (Child support) [2022] AATA 369 (24 January 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022139

APPLICANT:  Mr Salah

OTHER PARTIES:  Child Support Registrar

Ms Abbas

TRIBUNAL:Member J Prentice, Member S Letch

DECISION DATE:  24 January 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care - no change to the likely pattern - decision under review affirmed

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

BACKGROUND

1. Mr Salah and Ms Abbas are the parents of [Child 1] (born 2002) and [Child 2] (born 2005).  This application is with respect to the care of [Child 2].

2. The pre-existing care for their daughter was recorded by the Child Support Agency (CSA) as being 71% care to Ms Abbas and 29% care to Mr Salah from 20 February 2015.

3. On 7 June 2021 Mr Salah notified the CSA of a change in the care arrangements such that Ms Abbas had been overseas since November 2020 and would not be returning to Australia for another four months.

4. The CSA decided on 7 June 2021 that Mr Salah had 29% care of [Child 2] and Ms Abbas had 0% care from 11 November 2020.  The date of effect of the decreased percentage of care of 0% to Ms Abbas was from the date of the accepted change in care, 11 November 2020.

5. On 8 June 2021, Ms Abbas lodged an objection to the care decision on the grounds that she claimed she was still providing care for [Child 2].

6. The CSA decided on 11 August 2021 to uphold Ms Abbas’s objection and found that there had not been a change to the ongoing pattern of care for [Child 2] and resolved not to revoke the pre-existing pattern of care for [Child 2] with Ms Abbas having 71% care and Mr Salah having 29% care from 20 February 2015.

7. On 24 August 2021 Mr Salah lodged an application for review by the Administrative Appeals Tribunal (the Tribunal).

8. At a hearing on 23 November 2021 the Tribunal heard sworn evidence from Mr Salah and Ms Abbas who participated by conference telephone.  Ms Abbas and the Tribunal were assisted by an interpreter in the English and Arabic languages.  In reaching its decision, the Tribunal has considered that evidence, together with the statements and documents provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975. Ms Abbas continued to submit additional material until 13 January 2022, when the Tribunal advised no further submissions would be accepted.

ISSUE

1. The issue is whether the existing care percentage determinations as at 11 August 2021 are to be revoked and new care percentage determinations are to be made.

CONSIDERATION

1. Mr Salah told the Tribunal that he was challenging the CSA decision of 71% care to Ms Abbas for [Child 2] as Ms Abbas had been out of the country for 12 months and was not providing any financial support for their daughter.  Mr Salah said that despite him being [Child 2]’s father and having 29% care for their daughter, Ms Abbas did not tell him that she was leaving the country on 11 November 2020.

2. Mr Salah said the first he knew that Ms Abbas was out of the country was when [Child 2]’s school contacted him in June 2021 to say that [Child 2] was being given breakfast and lunch through the school’s breakfast club because she did not have any food.  Mr Salah also claimed that [Child 2] did not have any shoes for school or a working laptop computer.  Mr Salah told the Tribunal that [Child 2] had several psychologist appointments at the school to help her cope with the impact of her mother leaving her and going overseas.  Mr Salah said it took him a long time to convince [Child 2] that she was loved and not abandoned.

3. Ms Abbas told the Tribunal that her daughter goes to the breakfast club at her school because she goes with a friend – not because she doesn’t have any money for food.

4. Mr Salah further claimed that Ms Abbas had not been providing adequate financial support for [Child 2] while she was overseas and that it was clear from the financial statements that the child support money was not going to support [Child 2] and that there was no substantial financial contribution from Ms Abbas to [Child 2].

5. Ms Abbas stated that any child support money deposited to her account was used to financially support [Child 2] including paying rent, bills, groceries, school expenses, transportation and anything [Child 2] needs. Ms Abbas concedes that after Mr Salah became aware she was overseas (in June 2021) that he assisted the children financially.

6. Mr Salah told the Tribunal that he did not believe [Child 2]’s older brother, [Child 1], is mature enough to care for his sister in their mother’s absence.  Mr Salah told the Tribunal that he believes Ms Abbas failed to provide financial, emotional or psychological support for [Child 2] while she was overseas.

7. Ms Abbas stated that she called the children every day when she was overseas and continued to be responsible for day-to-day decision making including being in contact with [Child 2]’s school.

8. Ms Abbas informed the Tribunal that her husband became very sick and she had to go overseas ([Country 1]) to care for him and she received an exemption from the Australian government to go.  However her plans to only stay three to four months were impacted by the COVID pandemic and her return was delayed until November 2021.

9. Mr Salah told the Tribunal that [Child 2] stayed with him over Ramadan and normally spends half the school holidays and three nights a fortnight and half the public holidays and half the religious holidays with him (about 29%).  However since June 2021 Mr Salah claimed that [Child 2] had been spending considerably more time with him, including “practically full time from 2 August 2021 to 2 November 2021”.

10. Ms Abbas told the Tribunal that [Child 2] had not enjoyed the time with her father and as soon as Ms Abbas returned, [Child 2] moved back in with her.

11. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (the Act). Put simply, a new care decision can be made if there has been a relevant change in the parents’ pattern of care: see Division 4 of Part 5 of the Act. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[1] The relevant policy appears at 2.2.2 of the Child Support Guide, which includes the following:

    …

    What constitutes a change to the pattern of care will depend upon the individual circumstances of the case …

    Not all changes in care will result in the calculation of a different care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

    …

    [1] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

12. The percentage of care is determined under Division 4 of Part 5 of the Act. The CSA has to work out a percentage of care for each parent in relation to each child of the assessment in accordance with the parent’s pattern of care during the relevant care period: sections 49 and 50 of the Act. The care period is the period which the Registrar considers to be appropriate having regard to all the circumstances. The care percentage must reflect the actual care a person has had or is likely to have during the care period. Actual care is generally worked out on the number of nights that the child was, or is likely to be, in the care of a person during the care period under the care arrangement: section 54A of the Act. Importantly, a child cannot be considered to be in the care of more than one party to a child support assessment at a time.

13. Once each party’s care is determined, it can be reflected in the child support assessment by revoking the old percentage under either section 54F, 54G or 54H of the Act, and replacing the revoked care percentage with the new care percentage.

14. The concept of care is broader than a parent being physically present with a child. For example, where an older child lives away from home, a child can still be regarded in a parent’s “care” (see, for example, the Child Support Guide at 2.2.1). Where a parent provides substantial financial support, such support is a strong indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation, transport, clothing, health and dental care. Other factors that suggest that the person continues to care for the child include whether the parent is actively involved in major decisions relating to the child – for example, decisions relating to the child’s health, schooling, relationships or career may be indicators that the parent continues to provide care for the child.

15. Here, the evidence suggests that Ms Abbas continued to provide for [Child 2]’s financial needs. The Tribunal accepts her evidence that she continued to exercise a high degree of parental involvement; this included managing [Child 2]’s schooling affairs, amongst other things. Accordingly, the Tribunal is not satisfied that there was a material change in the recorded care arrangements in November 2020. The Tribunal finds no basis to revoke the existing care percentages reflecting care as 29% to Mr Salah and 71% to Ms Abbas.

16. As this is the same conclusion as reached by the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.