XLRT and Child Support Registrar (Child support second review)

[2024] AATA 2856

XLRT and Child Support Registrar (Child support second review) [2024] AATA 2856 (7 August 2024)

Division:GENERAL DIVISION

File Number(s):      2022/10556

Re:XLRT

APPLICANT

AndChild Support Registrar

RESPONDENT

AndKJQY

OTHER PARTY

DECISION

Tribunal:Senior Member A Poljak

Date:7 August 2024

Place:Sydney

The decision under review is affirmed.

.........................[SGD]...............................................

Senior Member A Poljak

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.

CATCHWORDS

CHILD SUPPORT — Percentage of care — Care period — What were the parents’ percentages of care for the children during an appropriate period — Available evidence considered — Decision under review affirmed.

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)

SECONDARY MATERIALS

Child Support Guide

REASONS FOR DECISION

Senior Member A Poljak

7 August 2024

1. The applicant (mother) and other party (father) are the separated parents of C (name redacted) (the child).

2. An administrative assessment of child support for the child was first made on 15 October 2008. From 20 August 2018, the assessment reflected that the applicant had 60% care of the child, and the other party had 40% (existing care percentage determinations).

3. On 11 February 2022, the applicant called Services Australia (Agency) to advise of a care change. She claimed that the other party had only one night of care of the child per month but could not say from when this pattern of care had commenced. The applicant said she would call the Agency back once she identified the date of the claimed care change. The Agency did not treat this as a change in care notification.

4. On 7 April 2022, the applicant called the Agency again in relation to the claimed care change, which she said had happened around the time of the child’s 15th birthday. The other party was contacted by the Agency on the same day, he stated that care of the child was “generally 50/50 and ha[d] been for some time”, and that this occurred on a week-about basis.

5. On 22 June 2022, an authorised officer of the Registrar made a decision to accept the applicant’s change in care notification, finding that she had had 90% care of the child since 1 November 2019 (original decision). The applicant’s new care percentage took effect in the assessment from 7 April 2022, when the officer considered the change of care to have been notified to the Agency, and the other party’s new care percentage of 10% took effect in the assessment from 1 November 2019, being the date of the care change.

6. On 23 June 2022, the other party objected to the original decision. On 19 August 2022, an authorised officer allowed the objection, deciding that due to the lack of substantiating evidence, the applicant’s change in care notification could not be accepted (objection decision).

7. On 31 July 2022, the other party lodged a new change of care notification, claiming that he provided 40% care of the child from 1 July 2022. On 2 August 2022, the Agency accepted the notification and decided that from 1 July 2022, the other party provided 40% care of the child, and the applicant provided 60% care. This decision has not been objected to and does not form part of these proceedings.

8. On 8 September 2022, the applicant applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (SSCSD) for review of the objection decision. On 15 November 2022, the SSCSD decided to affirm the objection decision, noting that given the “completely conflicting views of the parents”, it could not be satisfied that a change in care occurred on or around 1 November 2019. This is the decision under review in these proceedings.

   Issues

9. The issues to be determined in these proceedings are whether:

   (a)Must or should the existing care percentage determinations be revoked?

   (b)And if so:

   (i)From when do the revocations take effect?

   (ii)What were the parents’ percentages of care for the child during an appropriate period (which would constitute ‘the care period’)?

   (iii)From when do the new care percentage determinations take effect?

   Consideration

10. The revocation of care percentage determinations is dealt with in Subdivision C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act).

11. The determination of the percentages of care for the children as between the applicant and the other party are governed by sections 49 or 50 of the Assessment Act. The essential difference between the two sections is that section 49 will apply if the Tribunal is satisfied that either party has had, or is likely to have had, no pattern of care during the care period. Where the Tribunal is satisfied that the parties have had, or are likely to have had, a pattern of care for the child, section 50 will apply.

12. On the current evidence, this does not appear to be a case in which section 49 would apply as there is no suggestion that one or the other parent has had no pattern of care. It follows that section 50 will be the relevant provision under which any care percentage determinations are to be made.

13. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

14. If the existing care percentage determinations are revoked, the Tribunal must determine whether either parent had a pattern of care for the child during such period as it considers appropriate in the circumstances (care period). The care period is not of any fixed duration but will generally be “a 12-month period from the day on which actual care of a child changed” (Child Support Guide at [2.2.1]). It is open for the Tribunal to consider that a shorter or longer care period is appropriate in the particular circumstances of a given case.

15. In this case, the decision made on 2 August 2022 remains in effect and governs the period from 1 July 2022 onwards. Accepting that the care period is a statutory device allowing the Tribunal to identify an appropriate period of time over which to assess (in a case such as the present) the care that was actually provided, and given that the Tribunal must only make determinations about care provided “during” the care period (see subsection 50(2) of the Assessment Act), it is not open to the Tribunal to apply a care period that extends beyond 30 June 2022.

16. In a written statement dated 1 March 2023, the applicant said, amongst other things, that the child lived with her most of the time since final court orders were made in 2008. She said for many years there was no regular schedule. The applicant said she fully managed the child’s daily routine on her own for many years, “what time he woke up, make his lunch for school, ensuring he was ready for school and sports, in turn what time he got home from school and whether he completed his homework”. At hearing, the applicant maintained that the child was always with her. She said the other party made up the level of care he provided, and the statements provided by family members were not true. The applicant said that from about the time of the child’s fifteenth birthday, he didn’t want to go to his father and from late 2019, the child was hardly ever in the other party’s care. She said the child only see the other party “once in a while”. The applicant said the child didn’t go to the other party’s place to see him but only went to feed the cat.

17. The applicant has provided a number of statements in support of the level of care she provided to the child, which were summarised by the SSCSD as follows:

    The statement from Louis Bugeja, her landlord since 2015, is dated 5 June 2022 and states [the child] has been in the care of [the applicant] at least 90 per cent of the time. The statement from [redacted], her sister, is dated 6 June 2022 and states the parents have never followed the court ordered care and [the applicant] has had at least 90 per cent care of [the child] since 2019. A statement from [redacted], a neighbour of 12 years, is dated 8 June 2022 and states [he child] lives with his mother every day. The statement from [redacted] also a neighbour, states [the child] seems to reside with [the applicant] all the time. The statement from [redacted], another sister, is dated 30 July 2022. In her statement [the applicant] says she has lived with her sister and [the child] every two months for a period of two months and it was rare for [the child] not to be there.

18. Additional statements provided by the applicant in these proceedings include a statement from AE (redacted) and RW (redacted) dated 2 September 2023; a statement of KC (redacted) dated 18 September 2023; a statement of DMH (redacted) dated 25 August 2023; an undated statement of TC (redacted); an undated statement of [LM] (redacted); a statement of PBB (redacted) dated 1 October 2023; and OL (redacted)  dated 4 October 2023. All of which speak of the applicant’s care of the child in support of her being the primary and exclusive caregiver.

19. At hearing, the other party said that the care pattern of the child worked out to be about 40% to him and 60% to the applicant. He said he had the child for half of the school holidays and for three-day weekends. In about 2016, the other party said the arrangement moved to a “week on week off arrangement” and said the exchange occurred on Mondays when the child went to school.

20. The other party has provided a bundle of evidence in support of the level of care he has provided to the child. Relevantly for this matter, I am most concerned with the level of care provided to the child from late 2019 to 30 June 2022. The evidence provided shows a selection of text messages between the other party and the child during this time; the other party’s involvement with the child’s schooling; a selection of expenses paid by the other party such as payments for school excursions; evidence of family school holidays to Japan in 2020; photos; and evidence of the other party’s involvement with sport. I also note that in 2020, an application was made for a push pass (school bus pass) for the child. The other party advised the child’s school via email that the child was with him “50% of the time generally. Sometimes a little more depending on the circumstances”.

21. The evidence of the other party’s partner, was that she was extremely knowledgeable about the level of care provided by the parties. She said that the child was with the other party most weekends and during holidays. She also stated that she was close with the child and spoke to him every evening. The statement from an adult brother to the child, states that they speak many times a week and he believes the child lives equally with each parent.

22. The other party has also provided an email statement dated 14 November 2023 from his neighbours of ten years who state, “we are aware that [the child] was regularly stating with his father as he proceeded through school and that this was at least on a 50% basis or more. [The child] would feed our animals whilst we were away on holiday on several occasions”.

23. Having considered all of the available evidence and given the completely conflicting views of the parents, I am not satisfied that care of the child changed at any point up to 1 July 2022. Accordingly, the decision under review is affirmed. 

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.........................[SGD]...............................................

Associate

Dated: 7 August 2024

Date of hearing:

10 April 2024

Applicant:

Self-represented

Other Party:

Solicitor for the Respondent:

Self-represented

Mr A Taverniti, Sparke Helmore Lawyers