Staats and Child Support Registrar (Child support)

[2021] AATA 1755

Staats and Child Support Registrar (Child support) [2021] AATA 1755 (3 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC020768

APPLICANT:  Miss Staats

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member P Noonan

DECISION DATE:  03 May 2021

DECISION:

The decision under review is affirmed.

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 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. On 10 February 2021 the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of an objection decision made by Services Australia, dated 4 February 2021, that disallowed her objection on 30 October 2020, to an original decision dated 24 October 2020. That decision was to reflect the care of the child subject to a child support assessment in this matter as 86% to the applicant and 14% to the father of the child from 5 September 2020.

2. The father of the child has not applied to be added as a party in this matter.

3. A hearing for this matter was scheduled for 3 May 2021 at 10.30am EST or 8.30am WST to be held by conference telephone. The applicant was sent SMS reminders prior to the scheduled hearing. Despite several attempts by the Tribunal to ring the applicant at the appointed time the applicant did not pick up her phone. Services Australia prepared hearing papers for this matter which were numbered 1 to 109 by the Tribunal and a copy sent to the applicant. The Tribunal proceeded to decide the matter based upon these papers and the written application for review lodged by the applicant.

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period.

2. The issues for the Tribunal to determine in this case are:

• Whether there should be a change to the percentages of care in respect of the child and if so, what percentages of care should be used; and

• What the date of effect of the change is.  

CONSIDERATION

1. The applicant stated in her application to the Tribunal that she disagreed with the assessment and that the father had 0% care for the entire period.

2. On 29 September 2020 the father notified Services Australia that the care of the child had changed from 100% to the applicant to 52 nights per year to himself or 14% care and 86% care to the applicant from 5 September 2020. The father also noted that he would have one night’s care per fortnight until the child became more comfortable with seeing him. Services Australia discussed this apparent conflicting information with the father who advised the applicant had told him he would have 2 nights per fortnight care and this was why he had lodged 14% care.

3. Services Australia then made 6 separate unsuccessful attempts to contact the applicant and a letter was issued to her on 8 October 2020 advising of the pending care change and asking her to contact them which the applicant did not.

4. The Tribunal notes that the applicant then objected to the subsequent care decision to accept the father’s care and in so doing advised Services Australia that the father had one night of care a fortnight from 5 September 2020 or 7%, she stated that she would provide further evidence but did not do so.

5. Since the objection decision was made the applicant has not provided any further evidence to Services Australia or to the Tribunal upon appeal. Further she did not appear before the Tribunal at the scheduled time for the hearing and therefore did not give any evidence to the Tribunal in support of her application.

6. As per the objection decision the Tribunal also has no information or evidence before it that clearly demonstrates the original decision was incorrect.

7. The law relevant to care percentage determinations is found in the Act. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

8. Both sections reflect the idea that Services Australia makes point-in-time care decisions on the basis of what has happened up until the care decision is made and what is likely to happen thereafter. If for some reason what is likely to happen does not eventuate, a parent can notify Services Australia and a new care determination can be made. However, the legislative test in the first instance and on review remains the same: what had happened until the date of the original decision, in this case until 24 October 2020, and what was likely to happen thereafter?

9. The Tribunal is required to assess the actual care that had occurred up to the date of notification and the future pattern of care that was contemplated to be likely at that point in time. The Tribunal considers that the notification by the father of 2 nights per fortnight was reasonably accepted by Services Australia on the available evidence as at the date of the original decision. There is some evidence that the care of the child was in fact one night per fortnight as at the date of the original decision. However, it is also the case that the father held an expectation that 2 nights per fortnight care was to be the norm based on discussions with the applicant. The applicant has not presented any evidence as to whether in fact 14%, 7% or 0% care was the pattern of care at the time of the original decision and what was expected to happen thereafter. On balance the Tribunal considers the original decision was correct on the evidence before the decision maker. Should this care not eventuate it is open to either parent to lodge a new care notification with Services Australia.

10. As the Tribunal has concluded that the parents’ care percentages were not the same as their determined care percentages and their cost percentages would change, as per section 55C of the Act, if new determinations were to be made, paragraph 54F(1)(d) of the Act is satisfied. There is no care arrangement in place in this matter. As section 54G does not apply, the Tribunal must revoke the existing determinations of percentages of care from the day before the change of care day.

DECISION

The decision under review is affirmed.