Stansfield and Child Support Registrar (Child support)

[2022] AATA 1169

Stansfield and Child Support Registrar (Child support) [2022] AATA 1169 (10 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022921

APPLICANT:  Mrs Stansfield

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member D Cox

DECISION DATE:  10 March 2022

DECISION:

The decision under review is varied so that the date of effect of the decrease in care is 28 June 2021, and the date of effect of the increase in care is 28 July 2021.

This means the appeal is partly successful.

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 varied

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. The care of [Child 1] , born [in] 2003, had been reflected as 100% to Mrs Stansfield and 0% to Mr Stansfield from 14 December 2015.

2. On 28 July 2021 Mr Stansfield advised Services Australia (the agency) that the care of [Child 1] had changed and from 28 June 2021 she was in his full-time care.

3. On 29 September 2021 the agency made a decision to reflect the care of [Child 1] as 100% to Mr Stansfield and 0% to Mrs Stansfield from 28 June 2021.

4. On 12 October 2021 Mrs Stansfield lodged an objection to the change of care decision.

5. Ms Stansfield said that she remained financially and emotionally responsible for [Child 1], that [Child 1] visited her every day, that Mr Stansfield did not financially support [Child 1] and that she had to transfer money to her for groceries.

6. On 8 December 2021 Mrs Stansfield’s objection was disallowed on the basis that there was no dispute that [Child 1] went to live with her father on 28 June 2021.

7. Mrs Stansfield said that [Child 1] returned to live with her on 12 August 2021.

8. The Tribunal asked Mrs Stansfield if she had notified the agency of another change of care on that date.

9. Mrs Stansfield said she had notified the agency of that change of care and another change of care decision had been made.

10. This is not a review of that decision.

11. Mrs Stansfield had told the agency that [Child 1] went to stay with her father to build a relationship with him, not to live there. [Child 1] was only there for five weeks and Mrs Stansfield was surprised that Mr Stansfield had notified a change of care.

12. The Tribunal considered both the actual care of [Child 1] from 28 June 2021 and the evidence Mrs Stansfield had provided of financial support she had provided for [Child 1] in addition to the registrar collect child support payments she had paid.

13. Mrs Stansfield told the Tribunal that she had paid about $1,250 in child support and transferred $1,153 to [Child 1] over the period to buy food and pay for medical expenses.

14. The Tribunal gave weight to statutory declarations provided by Mr Stansfield and Mrs Stansfield stating that there was a change of care event.

15. The Tribunal makes a finding of fact that there was a change of care event on 28 June 2021.

16. Pursuant to section 54A of the Child Support (Assessment) Act 1989 (the Assessment Act) the Tribunal determined the extent of care on the basis of the number of nights that Mr Stansfield had care of [Child 1].

17. The Tribunal makes a finding of fact that the pattern of actual care for [Child 1] from 28 June 2021 was 100% to Mr Stansfield and 0% to Mrs Stansfield.

18. The Tribunal is therefore satisfied that care was not taking place in accordance with the existing care percentage determination of 14 December 2015 and the cost percentage has changed.

19. The Tribunal finds that, pursuant to subsection 54F(1) of the Assessment Act, the care determination dated 14 December 2015 is revoked from 27 June 2021.

20. As the Tribunal has revoked the previous care determination it must make a new care determination based on actual or expected care for the period from 28 June 2021, pursuant to Subdivision B – Determination of percentage of care in the Assessment Act.

21. The Tribunal has identified a new care period from 28 June 2021.

22. Mrs Stansfield told the Tribunal that there had been a parenting plan or written care arrangement relating to the care of [Child 1] but she had not taken any action to enforce it.

23. The conditions set out in section 53A of the Assessment Act are therefore not met and there is no basis for a determination of an interim period under sections 49 and 50 of the Assessment Act.

24. As Mrs Stansfield had no actual care of [Child 1] after 27 June 2021, the Tribunal finds that, pursuant to section 49 of the Assessment Act, the care of [Child 1] is to be reflected as 0% to Mrs Stansfield from 28 June 2021.

25. As Mr Stansfield had actual care of [Child 1] from 28 June 2021, the Tribunal finds that, pursuant to section 50 of the Assessment Act, the care of [Child 1] is to be reflected as 100% to Mr Stansfield from 28 June 2021.

26. As Mr Stansfield notified the change of care on 28 July 2021, which is more than 28 days after the change of care:

    · Pursuant to subparagraph 54F(3)(b)(i) of the Assessment Act, the date of effect of the increase in care is 28 July 2021; and

    · Pursuant to subparagraph 54F(3)(b)(ii) of the Assessment Act, the date of effect of the decrease in care is 28 June 2021.

27. The decision under review is varied as to the dates of effect of the care changes.

DECISION

The decision under review is varied so that the date of effect of the decrease in care is 28 June 2021, and the date of effect of the increase in care is 28 July 2021.

This means the appeal is partly successful.