Sultan and Govens (Child support)

[2018] AATA 4647

Sultan and Govens (Child support) [2018] AATA 4647 (9 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC015048

APPLICANT:  Mr Sultan

OTHER PARTIES:  Child Support Registrar

Ms Govens

TRIBUNAL:Member J Longo

DECISION DATE:  9 November 2018

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS
CHILD SUPPORT – percentage of care – whether the child returned to the care of the parent – the likely pattern of care – 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.Mr Sultan and Ms Govens are the parents of [Child 1]. Mr Sultan is the parent liable to pay child support since the case was registered on 16 October 2000. On 1 March 2018 the Department of Human Services – Child Support (the Department) determined that a terminating event had occurred which ended the case as both Ms Govens and Mr Sultan did not have any care of [Child 1] from this date.

2.On 1 May 2018, Ms Govens notified the Department that [Child 1] had returned to her care 100% of the time and made a new application for the collection of child support. Mr Sultan disputed that Ms Govens had the care of [Child 1] on the basis that he was working four days per week and spending all his time at his girlfriend’s house.

3.On 15 June 2018, the Department decided that neither parent had the care of [Child 1] and refused to amend the care determination. Ms Govens disagreed with the decision and lodged an objection on 21 June 2018. On 20 August 2018, an objections officer allowed Ms Govens’ objection and changed the care determination to reflect [Child 1] was in Ms Govens’ care 100% of the time from 1 May 2018.

4.On 18 September 2018, Mr Sultan lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 9 November 2018. Mr Sultan and Ms Govens spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision, the tribunal took into consideration the documents (numbered 1 to 77) provided by the Department, which were also sent to Mr Sultan and Ms Govens.

CONSIDERATION

5.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [Child 1]?

6.Mr Sultan stated at hearing that [Child 1] left Ms Govens’ care and was living at his girlfriend’s house. He noticed this because [Child 1’s] care was at her ([Child 1’s] girlfriend’s) house when he drove past. He also spoke with [Child 1] regularly and his son told him where he was and he stated that he was at his girlfriend’s house. A work colleague also told him that [Child 1] was at his girlfriend’s home. In addition, [Child 1] is working as a casual [worker] about four days per week since January 2018 and so he cannot understand how Ms Govens has the care of [Child 1] if he is working and staying at his girlfriend’s house.

7.Ms Govens stated that [Child 1] has been staying with her full-time since 1 May 2018. Ms Govens confirmed that he does work as a [worker] about three days per week but there are some weeks where he doesn’t work due to the weather. While [Child 1] has some income, Ms Govens stated that she still pays for his expenses such as food and his share of the costs for the house. [Child 1] does not pay any rent or board and generally uses his money to pay for petrol for his car or to go out with his girlfriend. Ms Govens stated that [Child 1] does go to his girlfriend’s home but only occasionally stays there. She stated that [Child 1’s] girlfriend has also stayed at her house. Ms Govens referred to the letter provided by [Child 1’s] girlfriend’s mother which confirms that [Child 1] is not living with her daughter.

8.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to [Child 1] be revoked?

9.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if, among other things, the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children (paragraph 54F(1)(a)).

10.The tribunal notes that Mr Sultan conceded in his oral evidence to the tribunal that [Child 1] is residing with Ms Govens but he did not state from when this occurred. Mr Sultan’s main contention was that [Child 1] is now working and he does not understand why he is required to pay child support if [Child 1] is not studying and has his own income. There is nothing under that part of the Act relating to the determination of care percentages which states that the eligible child cannot be working or is required to be in full-time education. While this is not a consideration which can be taken into account in relation to the care percentage, an application may be made under Part 6A of the Act to consider [Child 1’s] income from employment under the departure determination provisions.

11.Mr Sultan has also referred to his discussions with [Child 1] and his observations that [Child 1’s] car was parked at his girlfriend’s home. Mr Sultan indicated that [Child 1] did stay at his mother’s home but that it was not every night. Ms Govens stated that the care had resumed to 100% in her care from 1 May 2018 and relied upon her evidence and a written statement from [Child 1’s] girlfriend’s mother which confirmed she (Ms Govens) has had the care of [Child 1] since 1 May 2018 and that [Child 1] has not resided with her daughter ([Child 1’s] girlfriend).

12.The tribunal, on the balance of probability, has accepted that [Child 1] is in the care of Ms Govens. Therefore, the tribunal is satisfied that from 1 May 2018 the care of [Child 1] has been with Ms Govens and that a new determination of care is to be made, as required under section 50 of the Act.

13.The tribunal has determined that a care determination which was made under section 50 of the Act from 1 March 2018 that Ms Govens had a percentage of care of [Child 1] of 0% and that Mr Sultan had a percentage of care of 0% from the same date, therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [Child 1], the tribunal must determine the care during the care period. “Actual care” may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

14.The tribunal is required to consider the actual care of [Child 1] during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal, but the tribunal has determined that it is appropriate to consider the policy in the circumstances of this matter. The tribunal considers that, in the circumstances of this case, an appropriate care period is the 12-month period from 1 May 2018, being the date on which Ms Govens stated that a change to care arrangements had occurred.

15.As the tribunal has concluded that Ms Govens’ and Mr Sultan’s care percentages were not the same as their determined care percentages and their cost percentages would change if new determinations were to be made, paragraph 54F(1)(b) of the Act is satisfied and as section 54G does not apply (paragraph 54F(1)(c)), the tribunal must revoke the existing determinations of percentages of care from 30 April 2018, and make a new care determination from the date Ms Govens contacted the Department, 1 May 2018.

16.In the circumstances, the tribunal must revoke the existing determinations of percentages of care and make a new determination that Ms Govens has 100% care of [Child 1] from 1 May 2018 and that Mr Sultan has 0% of care of [Child 1] from 1 May 2018.

DECISION

The tribunal affirms the decision under review.