Trippler and Souttar (Child support)

[2021] AATA 3676

Trippler and Souttar (Child support) [2021] AATA 3676 (16 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC021785

APPLICANT:  Miss Trippler

OTHER PARTIES:  Child Support Registrar

Mr Souttar

TRIBUNAL:Member W Budiselik

DECISION DATE:  16 August 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 – whether child was in the care of a third party - 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. Miss Trippler (the mother/applicant) and Mr Souttar (the father) are the parents of a child (born 2006), who is the subject of an administrative assessment of child support.

2. On 13 March 2021, an objections officer from Services Australia (the Agency) allowed an objection by the father to a decision made by an officer of the Agency on 21 August 2020, to attribute him and the mother with 0% of the child’s care from 28 January 2020.

3. The objections officer decided the care of the child had not changed on 28 January 2020, and the father continued to care for the child for 100% of the time (the percentage of care decision).

4. In addition to the care percentage decision the objections officer made a second decision further to section 87AA of the Child Support (Registration and Collection) Act 1988 and determined the date of effect of the care percentage decision to be 1 December 2020 (the date of effect decision). The father has not sought a review of the date of effect decision and the date of effect decision is not before the tribunal.

5. On 18 June 2021, the mother lodged an application for review of the Agency’s percentage of care decision with the Administrative Appeals Tribunal (the tribunal). On 16 August 2021, the tribunal conducted a hearing into the application. The parents participated in the hearing via telephone conference. Prior to the hearing the Agency provided the tribunal and the parents with a bundle of documents taken from its files (folios 1–194).

ISSUES

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

2. The tribunal also referred to the Agency’s online Child Support Guide (the Guide). The tribunal is not bound by law to apply the Agency’s policy as set out in the Guide, but provided the policy is consistent with the legislation, it must have regard to it and in the ordinary course, to follow it (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) unless there is a cogent reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

3. The issues which arises in this case are:

a)Was there a change to the pattern of care on 28 January 2020; If so,

b)should the existing care determinations be revoked and replaced?

CONSIDERATION

Issue a) Was there a change to the pattern of care on 28 January 2020?

1. The relevant provisions are set out in sections 49 to 54L of the Act.

2. Section 50 of the Act provides for new care decisions to be made. Section 50 applies if the parent “has had, or is likely to have, a pattern of care for the child during such a period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

3. Subsection 54F(1) of the Act provides that if the Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child, and the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 50, another percentage to be the person’s percentage of care for the child, the Registrar must revoke the determination.

4. The mother’s assertion was that the father did not care for the child because the child from 28 January 2020 because the child was in the care of the father’s partner’s mother.

5. On 2 March 2020, the mother advised an officer of the Agency she saw her daughter in October 2020, and that the child advised the mother she was living with her father (see folio 143). The mother told the tribunal she accepted the child was in the father’s care from August 2020.

6. The tribunal notes that the way care is dealt with in the Guide is set out at Chapter 2.2.1 of the Guide where it sets out:

   Determining whether care exists

   An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.

   In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:

   ·To what extent the person has control of the child, including having overall responsibility for the child and making:

   omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

   oarrangements for others to meet the needs of the child (delegated care).

   ·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

   ·To what extent the person pays for the costs of meeting the needs of the child.

   ·To what extent the person otherwise provides financial support for the child.

   ·To what extent the child provides for his or her own needs or has those needs met from another source.

   ·To what extent the child is financially independent or financially supported from another source.

7. The tribunal pointed out to the mother its care percentage decision would have no effect on the child support payments in the period 28 January 2020 to 30 November 2020, because of the objections officer’s date of effect decision. That is, in the period 28 January 2020 to 30 November 2020, the mother was not required to pay the father child support.

8. The father said he had not realised the care percentage had changed as a result of the objections officer’s percentage of care decision. He said it only became apparent to him there had been a change in the percentage of care when he received a debt from Centrelink for the overpayment of family tax benefit. He said he had always cared for the child for 100% of the time.

9. The father’s partner’s mother provided a letter to the Agency setting out she did not care for the child but that she helped the father and her daughter care for the children in their care by doing school runs/pick-ups and permitting sleep overs.

10. The father said he had always cared for the child for 100% of the time.

11. The mother did not have additional information to provide to the tribunal about the care of the child.

12. The tribunal was satisfied the Agency’s assessment that the father cared for the child was correct and that he continued to care for her for 100% of the time.

Other matter

21.The father raised another matter at the hearing about the collection of child support from the mother. The tribunal raised the limitations imposed on its jurisdiction and that it could only review decisions that had been made by the Agency and then reviewed by an Agency objections officer. The tribunal advised the father that he should raise any concerns he had about collection of child support with the Agency.

DECISION

The decision under review is affirmed.