Vann and Moat (Child support)

[2024] AATA 2027

Vann and Moat (Child support) [2024] AATA 2027 (2 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2024/SC027480 and 2024/SC027546

APPLICANT:  Mr Vann

OTHER PARTIES:  Child Support Registrar

Ms Moat

TRIBUNAL:Senior Member S De Bono

DECISION DATE:  2 May 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS 

CHILD SUPPORT – change of assessment – percentage of care – there is no change to the 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. Mr Vann and Ms Moat are the parents of [Child 1] (born on [date] 2018) and [Child 2] (born [date] 2020). On 5 January 2019 Services Australia (Child Support) accepted an application for an administrative assessment of child support made on 20 December 2018 for [Child 1]. Child Support has collected child support from 7 May 2021. Mr Vann has been the parent liable to pay child support. This application for review concerns the care of [Child 1].

2. On 20 December 2018 Ms Moat lodged an application with Child Support which indicated she had 80% care of [Child 1] and Mr Vann had 20% care of [Child 1]. This care percentage was accepted on 5 January 2019 and applied to the administrative assessment of child support from 20 December 2018.

3. On 27 November 2023 Mr Vann lodged an objection to this decision. On 7 February 2024 an objections officer disallowed Mr Vann’s objection and determined that there is no change to the assessment.

4. On 8 February 2024 Mr Vann applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of this decision. The Tribunal had before it a bundle of documents (540 pages – referred to as the hearing papers), which had been sent to both parties prior to the hearing. On 2 May 2024 Ms Moat and Mr Vann gave evidence to the Tribunal via conference telephone under affirmation. Relevant aspects of the material and evidence will be referred to in the Tribunal’s consideration of the issues to be decided.

ISSUE

1. The issue which arises in this case is:

   ·      What is the care for [Child 1] from the start of the assessment?

LAW AND CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the Tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise, as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1]

   [1] [1979] AATA 179.

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

3. In accordance with section 25 of the Assessment Act a parent may apply to the Registrar for an administrative assessment of child support. Section 30 of the Assessment Act provides that if the Registrar is satisfied that an application has been properly made for an administrative assessment of child support, the Registrar must accept the application.

4. Section 7B of the Assessment Act provides that an eligible carer is a person who has at least shared care of the child. A person has shared care of a child if they have a care percentage of at least 35% care of a child.

5. Mr Vann told the Tribunal that he and Ms Moat separated for about two weeks in January 2019 and then he returned to the family home. Mr Vann said he and Ms Moat were living as a couple again once he returned after the two-week break. Mr Vann said during this time his care of [Child 1] was shared 50/50 with Ms Moat, because they were still a couple. He explained in March 2020 he suffered a work place injury and was off work for a period of time; during this period he said he was taking [Child 1] to child care and picking her up from child care. [Child 2] was added to the assessment on 21 August 2020, applying from 13 July 2020; the care for [Child 2] was also recorded as 80% care to Ms Moat and 20% care to Mr Vann.

6. Mr Vann said he and Ms Moat separated in January 2021 and he said he moved out of the family home on 31 January 2021. Mr Vann said he has not seen either child since 27 March 2021 as Ms Moat has prevented him from having contact with either child. A new care determination was made on 13 April 2021, which applied from 30 January 2021 as notified on 2 March 2021, in which [Child 1] and [Child 2] were recorded as being in Ms Moat’s care 100% of the time. Mr Vann agreed he ceased to have care of both children from at least 27 March 2021.

7. Ms Moat disagreed that she and Mr Vann were living as a couple after January 2020. Ms Moat said Mr Vann was living with his father and during this time he would have care of the children every second weekend for three nights a week. Ms Moat did not agree that Mr Vann had shared care of the children. Ms Moat also did not agree that they had reconciled in January 2020 and had only separated in March 2021.

8. Mr Vann said child support was originally private collect, so he did not worry about correcting the care percentage decision because it made no difference to him. It was only when Ms Moat ‘opted in’ and Child Support commenced collecting child support on 7 May 2021 that Mr Vann wanted the care percentages corrected. Mr Vann said this was because from the start of Child Support collecting on behalf of Ms Moat, the administrative assessment was calculated on the basis that Ms Moat had 80% care of [Child 1] and Mr Vann had 20% care of [Child 1]. A debt was raised for the three months prior to the start of the opt-in collection of child support on 7 May 2021 and going forward the administrative assessment for both children was calculated on the basis that Ms Moat had 100% care and Mr Vann had 0% care from 30 January 2021.

9. The Tribunal carefully considered the evidence from both parties and the evidence in the hearing papers before the Tribunal and has concluded that Child Support was correct to accept the administrative assessment of child support as 80% to Ms Moat and 20% to Mr Vann from 20 December 2018.

10. As the decision has been affirmed the Tribunal was not required to consider the date of effect provisions (section 87AA of the Act).

DECISION

The decision under review is affirmed.