Scott and Child Support Registrar (Child support)

[2020] AATA 5121

Scott and Child Support Registrar (Child support) [2020] AATA 5121 (28 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC019719

APPLICANT:  Miss Scott

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Brakespeare

DECISION DATE:  28 October 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – parents living under the same roof – shared care appropriate determined – 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. Ms Scott is the parent liable to receive child support from [Mr A] in respect of their children [named]. The application for a child support assessment was made on 10 October 2016 and accepted by the Child Support Agency on 13 October 2016.

2. As part of the application the Child Support Agency also made percentage of care determinations which reflected Ms Scott had 51% care of the children and [Mr A] had 49% care of the children (the original decision).

3. Ms Scott advised the Child Support Agency of a change of care on 3 February 2020. She stated that she had 100% care with effect from 31 December 2018. On 12 February 2020 an officer of the Child Support Agency made new percentage of care determinations reflecting that Ms Scott had 100% care with effect from the notification dated 3 February 2020 and [Mr A] had 0% care from the care change date being 31 December 2018 (the subsequent care decision).

4. On 30 April 2020 Ms Scott objected to the original decision. An objections officer disallowed the objection on 28 July 2020 (the objection decision). Ms Scott lodged an application for review of the objection decision with the tribunal. It is important to note that it is the original decision, and not the subsequent care decision, that is before the tribunal.

5. A hearing was held on 28 October 2020. Ms Scott gave evidence on affirmation to the tribunal via conference telephone. The tribunal invited [Mr A] to be added as a party to the application however he did not apply to be added. The Child Support Agency provided the tribunal and Ms Scott with a bundle of papers relevant to the review (147 pages).

6. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

1. The statutory provisions relevant to this review are the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. The issues which arise in this case are:

   ·      whether the percentage of care determinations made on 13 October 2016 were correct; and, if not

   ·      what is the date of effect of the tribunal’s determination?

CONSIDERATION

Issue 1 – What is the correct percentage of care determination for the period commencing 10 October 2016?

1. If an application is made under section 25 of the Act for a parent to be assessed in respect of the costs of a child and a parent has had, or is likely to have, no pattern of care for the child during a care period a determination must be made that the person’s percentage of care for the child, for the care period is 0% (section 49 of the Act). If an application is made under section 25 of the Act for a parent to be assessed in respect of the costs of a child and a parent has had, or is likely to have, a pattern of care for the child during a care period, a percentage of care determination must be made that corresponds with the actual care that the parent has, or is likely to have during the care period (section 50 of the Act). The percentage of care determination applies to each day in a child support period on and from the application day until such time as the determination is revoked (section 54B of the Act).

2. The tribunal finds that the application day was 10 October 2016. At the time Ms Scott advised the Child Support Agency that the percentages of care for the children were 50% to her and 50% to [Mr A] and that the care arrangement had commenced on 7 June 2016.

3. Ms Scott told the tribunal that at the time the application was made [Mr A] was paying child support directly to her. She said that the Child Support Agency advised at the time that as it was a private collect case the percentages of care did not really matter. She said that [Mr A] had very little care of the children from the application day and no overnight care. She has now received a very large family tax benefit debt (as Centrelink failed to record the 50/50 care  percentages at the time the Child Support Agency determination was made and she continued to receive 100% of the FTB). Centrelink has now raised a debt on the basis that her FTB should be calculated on 50% care.  Ms Scott said that [Mr A] lied to the Child Support Agency by advising that they were separated under the same roof until 2019.

4. Ms Scott told the tribunal that when she and [Mr A] first separated, in June 2016 they were living under  the same roof. Ms Scott then decided to move to [Town 1] with the children. She entered into a lease arrangement for a property in [Town 1] on 26 September 2019.  Ms Scott said that [Mr A] also decided to move to [Town 1]. When he first got to [Town 1] he was staying with friends at various places (couch surfing). He was using Ms Scott’s address as his postal address. She said that at the time she made the application for the child support assessment it was the intention of both parents that they would have 50% care of the children.

5. Ms Scott said that the 50/50 care arrangement did not continue once [Mr A] moved to [Town 1]. He secured employment working on a fly-in fly-out (FIFO) basis but his roster was ad hoc. He continued to couch surf when in [Town 1] and was therefore never in a position to have overnight care of the children. He did have daytime care but it was not regular and not often.

6. Ms Scott said that she did not advise the Child Support Agency that the percentages of care were incorrect as she did not think they had any material effect as the child support was private collect.

7. The tribunal finds that the appropriate care period in respect of the application made on 10 October 2016 was the 12 month period commencing from 7 June 2016, when the care at the time was 50% to each parent, according to the parents. On 10 October 2016 the likely care continued to be 50% to each parent, as that was the care arrangement that was intended at the time.

8. The tribunal therefore finds that the percentage of care determinations should reflect 50% care to each parent from the application day of 10 October 2016, in accordance with section 50 of the Act.

9. That determination stays in place until such time as it is revoked. For that to occur a parent must advise the Child Support Agency of a change in care. Such a change would include advising that the intended pattern of care was not occurring.  Once a change in care is advised the Child Support Agency is required to make a subsequent determination. Any new determination is not before the tribunal as there has not been an objection to a subsequent care percentage decision.

DECISION

The decision under review is affirmed.