Smart and Marriott (Child support)

[2023] AATA 2164

Smart and Marriott (Child support) [2023] AATA 2164 (27 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC025438

APPLICANT:  Mr Smart

OTHER PARTIES:  Child Support Registrar

Ms Marriott

TRIBUNAL:Member P Jensen

DECISION DATE:  27 June 2023

DECISION:

The care decision under review is set aside and, in substitution, Mr Smart is recorded as providing 42% care for [Child 1] and Ms Marriott is recorded as providing 58% care for [Child 1] with effect from 13 October 2021.

CATCHWORDS
CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review set aside and substituted

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

1. Mr Smart is [Child 1]’s father. Ms Marriott is [Child 1]’s maternal grandmother. On 8 September 2021 a child support case was registered with Services Australia – Child Support (Child Support). Ms Marriott was recorded as providing 100% care for [Child 1].

2. On 13 October 2021, Mr Smart reported a change in care for [Child 1]. He stated that he was providing 100% care from 13 October 2021. Ms Marriott agreed. On 19 October 2021 an original decision-maker decided to record Mr Smart as providing 100% care from 13 October 2021.

3. One year later, on 3 November 2022, Ms Marriott objected to that decision. An objections officer made two decisions:  

• a care decision to not record a change in care from 13 October 2021 (and so the earlier decision to record Ms Marriott as providing 100% care remained in force); and

• a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, which resulted in the objections officer’s care decision having full retrospective effect notwithstanding the objections officer’s finding that Ms Marriott had not objected to the original care decision within 28 days of being notified of the decision.

1. Mr Smart promptly applied to the Tribunal for review of the objections officer’s care decision. On 2 June 2023, I issued directions to Mr Smart and Ms Marriott to provide certain information concerning their care of [Child 1] during the period from 13 October 2021 to 12 December 2021. Mr Smart complied with the directions. Ms Marriott either did not comply with the directions or could not recall the particular nights on which she had provided care and did not have any documentary evidence of the particular nights on which she had provided care. I heard the matter on 27 June 2023. For the reasons that follow, I did not consider it necessary to question Ms Marriott about the fact that she did not provide any evidence in response to the directions. Mr Smart and Ms Marriott gave sworn evidence via MS Teams. I explained the two decisions that the objections officer had made. Mr Smart confirmed that he was only seeking review of the objections officer’s care decision.

2. Mr Smart’s documentary evidence indicated, and Mr Smart and Ms Marriott agreed, that Mr Smart’s general pattern of care from 13 October 2021 consisted of three nights of care per week and Ms Marriott’s general pattern of care from 13 October 2021 consisted of four nights of care. They both agreed that it would be appropriate to make a care decision accordingly.

3. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (the Act). Decision-makers are required to determine the pattern of care each carer has provided, or are likely to provide, over the appropriate care period: sections 50, 54B and 54F of the Act. Mr Smart’s pattern of care from 13 October 2021 equates to 3 / 7 = 42.86%, which is rounded down to 42% pursuant to section 54D of the Act. Ms Marriott’s pattern of care from 13 October 2021 equates to 57.14%, which is rounded up to 58%. The change in care was promptly reported to Child Support and so the care percentages take effect from when the change in care occurred: sections 54B and 54F of the Act.

DECISION

The care decision under review is set aside and, in substitution, Mr Smart is recorded as providing 42% care for [Child 1] and Ms Marriott is recorded as providing 58% care for [Child 1] with effect from 13 October 2021.