Sharma and Duck (Child support)

[2020] AATA 2032

Sharma and Duck (Child support) [2020] AATA 2032 (12 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC018814

APPLICANT:  Ms Sharma

OTHER PARTIES:  Child Support Registrar

Mr Duck

TRIBUNAL:Member K Buxton

DECISION DATE:  12 May 2020

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 - existing percentage of care determinations should not be revoked - 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. Ms Sharma and Mr Duck are the parents of [Child 1]. A child support case is registered with the Child Support Agency (CSA). This review application concerns a decision of the CSA about the recorded care for [Child 1].

2. Care for [Child 1] had been recorded by the CSA as 22% care with Ms Sharma and the 78% care with Mr Duck when, on 16 September 2019, Ms Sharma contacted the CSA and stated that she was having 100% care of [Child 1] from 13 September 2019 following an incident which had occurred on that day. The CSA contacted Mr Duck who disagreed that care had changed. On 22 October 2019, the CSA decided to change the recorded care for [Child 1] so that, from 13 September 2019, [Child 1] was to be recorded as in the 89% care of Ms Sharma and the 11% care of Mr Duck.

3. On 5 December 2019 Ms [Sharma] contacted the CSA and informed them that [Child 1] was “back in her care”. As a decision had already been made by the CSA on 22 October 2019 that [Child 1] was to be recorded as in the 89% care of Ms Sharma and the 11% care of Mr Duck from 13 September 2019 the CSA did not treat this as a notification of a further care change and did not make a decision in relation to that notification at the time.

4. Mr Duck objected to the decision made by the CSA on 22 October 20919 and, on 20 March 2019, an objections officer decided to allow the objection, deciding that there had been no change in care for [Child 1] arising from the circumstances notified by Ms Sharma in September 2019.

5. Ms Sharma applied to the tribunal for review of that objection decision. At the hearing on 12 May 2020 the tribunal heard sworn evidence by conference telephone call from Ms Sharma and Mr Duck and accepted into evidence the subsection 37(1) Statement and Documents provided by the CSA (Exhibit 1).

CONSIDERATION

1. The tribunal is to determine whether there has been a care change for [Child 1]. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination should be revoked. Subsection 54F(1) provides that the determination must be revoked in circumstances where a different cost percentage would apply if the care percentage determination was changed. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the child.

2. During the hearing both Ms Sharma and Mr Duck stated that Ms Sharma’s care of [Child 1] from 13 September 2019 was consistent with the previously established pattern of care and that no change in care had occurred for [Child 1]. Mr Duck accepted that [Child 1] is now in the greater care of Ms Sharma but stated that this did not occur in September 2019 or until some months later when the school year was completed. Ms Sharma stated that, although she expected that care for [Child 1] would change, care did not change at that time and a change in care should not have been recorded from September 2019.

3. On 5 December 2019 Ms Sharma is recorded as having informed the CSA that [Child 1] had come back into her care from around that date. Ms Sharma accepted during the hearing that, from 13 September 2019, [Child 1] did not begin to reside with her but spent time in her care only during the school holidays before returning to the care of Mr [Duck], as was reflected in the previously recorded care percentages for [Child 1].

4. It is open to either party to notify the CSA that care changed for [Child 1] in December 2019 ask for a further decision to be made. The tribunal notes that it appears that on 5 December 2019 Ms [Sharma] did contact the CSA and informed them that [Child 1] was “back in her care”. As a decision had already been made by the CSA on 22 October 2019 that [Child 1] was to be recorded as in the 89% care of Ms Sharma and the 11% care of Mr Duck from 13 September 2019 the CSA did not treat this as a notification of a further care change and did not make a decision in relation to that notification at the time. The conversation between Ms Sharma and the CSA on 5 December 2019 may need to be considered in closer detail by the CSA if Ms Sharma asserts that she informed the CSA of a care change for [Child 1], from December 2019, at that time.

10.  However, this review application deals only with the change in care notified by Ms Sharma in September 2019. There is no evidence of an increase in the pattern of regular care of [Child 1] by Ms Sharma from 13 September 2019 and it appears that, at that time, care for [Child 1] continued to take place as previously recorded. The tribunal finds that there is insufficient evidence available to establish a change in the pattern of care at that time.

11.  The tribunal has found that there has not been a change to the pattern of care for [Child 1] from 13 September 2019 as reported by Ms Sharma. As the tribunal has reached the same conclusion as in the decision under review, that decision is affirmed.

DECISION

The decision under review is affirmed.