WLRB and Child Support Registrar (Child support second review)
[2021] AATA 1512
•27 May 2021
WLRB and Child Support Registrar (Child support second review) [2021] AATA 1512 (27 May 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2020/5563-4
GENERAL DIVISION )
Re: WLRB
Applicant
And: Child Support Registrar
RespondentAnd: PGXF
Other PartyDIRECTION
TRIBUNAL: Dr Damien Cremean, Senior Member DATE OF CORRIGENDUM: 17 June 2021 PLACE: Melbourne The Tribunal directs the Registrar, pursuant to subsection 43AA of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application made on 27 May 2021 so that the decision reads:
The Tribunal sets aside the decision under review and substitutes a decision that the existing care percentage determination (by which the Applicant has a percentage of care of 100% for ABCD with effect from 13 February 2018) not be revoked.
………………[SGD]……………..
Senior Member
Division:GENERAL DIVISION
File Number:2020/5563-4
Re:WLRB
APPLICANT
Child Support RegistrarAnd
RESPONDENT
AndPGXF
OTHER PARTY
DECISION
Tribunal:Dr Cremean, Senior Member
Date:27 May 2021
Place:Melbourne
The Tribunal sets aside the decision under review and substitutes a decision that the existing parentage determination (by which the Applicant has a percentage of care of 100% for ABCD with effect from 28 November 2018) be re-instated.
..............[sgd].......................
Senior MemberNames 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.
Catchwords
CHILD SUPPORT – percentage of care – pattern of care – decision set aside.
Legislation
Child Support (Assessment) Act 1989 (Cth)REASONS FOR DECISION
Dr Cremean, Senior Member
27 May 2021
BACKGROUND
The Applicant, WLRB seeks review of a decision made by the Social Services & Child Support Division of this Tribunal (“Tier 1”) dated 17 October 2019 which set aside the decision under review and substituted a decision that the Other Party, PGXF, had a percentage of care of 100% for ABCD with effect from 28 November 2018.
The decision of Tier 1 was made in the absence of WLRB, who was unable to be contacted.
HEARING
A hearing in this matter was conducted on 27 April 2021. The Applicant was self-represented, and the Respondent was represented by Mr Gauci of Hunt & Hunt Lawyers.
The Other Party did not attend despite attempts to contact him.
The Applicant gave affirmed evidence by telephone and Mr Gauci asked questions of her in cross-examination.
No evidence was called by or on behalf of the Respondent.
LEGISLATION
The Child Support (Assessment) Act 1989 (Cth) (“Act”) relevantly provides in ss 49(1),
ss 49(2) and section 50:
49Determination of percentage of care--responsible person has had etc. no pattern of care for a child
(1)This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no 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; or
(b) both of the following apply:
(i) the determination of a responsible person’s percentage of care for a child that was made under this section or section 50 is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii) the Registrar is satisfied that the responsible person has had, or is likely to have, no 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.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
50Determination of percentage of care--responsible person has had etc. a pattern of care for a child
(1) This section applies if:
(a)either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child 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; or
(b)both of the following apply:
(i) the determination of a responsible person's percentage of care for a child that was made under section 49 or this section is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii) the Registrar is satisfied that the responsible person 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.
(2)The Registrar must determine the responsible person's percentage of care for the child during the care period.
(3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4)Subsection (3) does not apply if section 51 applies in relation to the responsible person.
ISSUE
The issue before the Tribunal is whether, in respect of the son, ABCD there had been a change to the ongoing pattern of his care for the purposes of ss 49(1) and s 50 of the Act.
Tier 1 in its decision stated that the Tribunal was “required to consider what care [the Other Party] and [the Applicant] intended for ABCD at the time of the application for the change [made] on 28 November 2018”.
That change of date to 28 November 2018 came about because the Respondent made a decision to determine the care on 18 December 2018 in the same terms as the decision of Tier 1 but on 31 July 2019 made the determination to take effect from 28 November 2018 as a result of representations made to the Respondent on 7 May 2019.
The date of 28 November 2018 appears then to have arisen as a result of the Other Party notifying the Respondent on that date that care arrangements in respect of ABCD had changed.
APPLICANT’S EVIDENCE
The Applicant gave affirmed evidence that ABCD is her son and also son of the Other Party. She said that the Other Party was her husband or partner and that they met 20 years ago in Ireland. She further stated that they moved between Ireland and Australia for a while but finally decided to reside in Australia.
The Applicant agreed that her case was that the decision of Tier 1 “should be reversed” because it is “wrong” and in its place should be the “original decision” where the percentage of care was 100% in her favour.
The Applicant also stated that she and the Other Party over the course of time had various disagreements and arguments and, in the end, she sought protection in a women’s refuge and that is how the marriage or partnership came to an end.
The Applicant said that ABCD, who is now an adult, and his girlfriend live with her at a suburban location.
The Applicant said that “I’ve literally paid for everything for ABCD [sic]”. She said: “I can’t remember even one time that his dad has even bought him a pair of shoes, ever”. During the course of her evidence, the Applicant made various references to the Other Party’s abusive and violent behaviour.
She said she believed that during the period from 29 April 2018 until 25 August 2018 she was in Ireland and ABCD was with her. During this time, she said ABCD was working with her brothers. One of her brothers is a mechanic with a tow-truck recovery business and another has a landscaping business. During that time, ABCD was staying with her and her family.
When asked about the Other Party’s evidence before Tier 1 that he would take ABCD to medical appointments, the Applicant said, “I’m not 100 per cent sure what he would be meaning”. She said ABCD suffers only “a touch of asthma”.
When asked about the Other Party’s evidence before Tier 1 that he was providing care of ABCD through the provision of money while ABCD was overseas the Applicant said, “I’m not sure what he could mean by that”.
When asked about the Other Party’s evidence before Tier 1 that he was providing care of ABCD by driving him to work, the Applicant said “He could have drove ABCD [sic] maybe once or twice at the most but there’s no way was he continuously driving [him] to work because I was”.
ANALYSIS AND FINDINGS
I have noted that the Other Party did not attend the hearing although he was notified of it.
This is the reverse of the hearing before Tier 1, where it was the Applicant who did not attend the hearing.
I consider that the Applicant was telling me the truth and I accept her evidence entirely.
Specifically on the points that were material to the decision made by Tier 1 set out above in paragraphs 18, 19 and 20, I accept the Applicant’s version of events and, on the basis of such evidence, I make the finding that from 28 November 2018, the Applicant had a percentage of care of 100% for ABCD. There is therefore no basis for me to find that the Other Party’s version of events should be accepted by this Tribunal.
Accordingly, Tier 1’s decision must be set aside.
Accepting the Applicant’s evidence as I do, I substitute a decision re-instating the decision by which the Applicant had a percentage of care of 100% for ABCD with effect from 28 November 2018 and the Other Party had 0%.
I am satisfied that the Tribunal has the power to do so, acting under the provisions in
ss 49(2) and 50 of the Act.
I certify that the preceding 27 (twenty seven) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member.
………[sgd]………………………
Associate
Dated: 27 May 2021
Date of hearing: | 27 April 2021 |
The Applicant: | Self-represented |
| Solicitors for the Respondent: Other Party: | Hunt & Hunt Lawyers No Appearance |
Key Legal Topics
Areas of Law
-
Family Law
-
Administrative Law
Legal Concepts
-
Appeal
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
1
0
0