Song and Child Support Registrar (Child support)

[2018] AATA 3993

Song and Child Support Registrar (Child support) [2018] AATA 3993 (4 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014236

APPLICANT:  Ms Song

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  04 September 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Percentage of care - Likely pattern of care correctly determined from the start of the child support assessment - 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. This review is about the percentage of care determinations for Ms Song and [Mr A] in respect of the child [Child 1].

2. Ms Song and [Mr A] are the parents of [Child 1] (born June 2011).   A new child support case was registered by the Department of Human Services, Child Support (the Child Support Agency) on 12 June 2012.

3. The level of care for [Child 1] under the assessment was recorded as 58 per cent care to Ms Song and 42 per cent care to [Mr A] from 28 May 2012 (the date of application).

4. On 11 September 2017 Ms Song objected to this decision and on 30 January 2018 the Child Support Agency disallowed the objection (the objection decision).

5. On 1 June 2018 Ms Song applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

6. The Tribunal conducted a hearing into the application on 4 September 2018.  Ms Song gave evidence on affirmation by conference telephone.  [Mr A] did not apply to be made a party to the proceedings and so did not participate in the hearing.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (141 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act, and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. If a new application is made for a parent to be assessed in respect of the costs of a child and the parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (sections 49 and 50 of the Act).

4. The issues which arise in this case are:

   ·       what is the percentage of care each parent has for [Child 1]; and

   ·       from what date should the new care determination take effect?

CONSIDERATION

1. Ms Song told the Tribunal at hearing that [Mr A] had never had any care of [Child 1].  She said he was in and out of jail and had nothing to do with her.  Ms Song said she had always provided 100 per cent care of [Child 1].

2. Ms Song said she had tried to tell the Child Support Agency in the past that [Mr A] had never cared for [Child 1] because he was in jail but did not want to object until a permanent apprehended violence order (AVO) was in place because she was petrified of [Mr A].  She said there had been quite a few AVOs in place in the past but a permanent AVO had recently been granted.

3. Ms Song said she did not realise that care was an issue in the past until she had discovered she had a large debt with Centrelink.  That was around September last year and it was then that she tried to something about the level of care in order to correct the debt with Centrelink.

4. The Tribunal notes in evidence that on 28 May 2012 when applying for a child support assessment Ms Song told the Child Support Agency that care of [Child 1] was flexible but [Mr A] had care, on average, three nights a week.

5. The Tribunal pointed out to Ms Song that this was how the Child Support Agency had originally calculated [Mr A] had 42 per cent care of [Child 1].  Ms Song reiterated that [Mr A] had never had care of [Child 1] and she did not recall saying he had any overnight care.  She said she had always looked after [Child 1] on her own which had been hard.

6. Given the contradictory evidence provided by Ms Song, the Tribunal is not satisfied the pattern of care from the date of assessment is incorrect.  The Tribunal therefore finds the care of [Child 1] to be 58 per cent care to Ms Song and 42 per cent care to [Mr A] from 28 May 2012.

7. The Tribunal notes, however, it is open to Ms Song to notify of any subsequent change in the pattern of care for [Child 1].

DECISION

The decision under review is affirmed.