Yeager and Child Support Registrar (Child support)

[2021] AATA 1294

Yeager and Child Support Registrar (Child support) [2021] AATA 1294 (16 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC020739

APPLICANT:  Mr Yeager

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member C Breheny

DECISION DATE:  16 March 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 – 100% one off block of care – existing percentage of care determinations revoked and new determinations made – 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. [Ms A] and Mr Yeager are the separated parents of [Child A], born February 2003. A child support case has been registered with the (then) Department of Human Services – Child Support (Child Support) since January 2011 and [Ms A] was assessed as the parent liable to pay child support to Mr Yeager. Since 9 December 2018, this has been on the basis that Mr Yeager has 73% and [Ms A] has 27% care of [Child A].

2. On 30 March 2020, [Ms A] advised Child Support that she has had 100% care of [Child A] since 23 March 2020.  Mr Yeager agreed that he did not have care of [Child A], but stated that [Child A] was living with [Ms A] from 28 March 2020.

3. On 14 April 2020, a decision was made that [Ms A] had 100% care of [Child A] from 28 March 2020. This meant Mr Yeager was now liable to pay child support to [Ms A].

4. On 19 April 2020 Mr Yeager contacted Child Support to notify that [Child A] would be leaving [Ms A’s] care on 21 April 2020 and would be living independently. On 18 May 2020 a new care determination was made that neither parent had care of [Child A] from 22 April 2020 and the child support case ended.

5. On 22 May 2020, Mr Yeager objected to the care decision made on 14 April 2020, noting that the care change had only been temporary. On 5 October 2020, a Child Support objections officer decided to disallow the objection.

6. On 5 February 2021, Mr Yeager applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 16 March 2021. Mr Yeager attended the hearing by conference telephone and gave evidence on affirmation. [Ms A] elected not to participate in this review and was not a party to these proceedings. A representative of the Child Support Registrar did not attend the hearing.

7. I had before me the Statement and Documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, received on 15 February 2021 (documents numbered 1–128).

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act). The legislation in relation to care matters was updated in 2018 to cover situations where a parent or non-parent carer does not comply with a care arrangement and the new provisions apply to a “change of care day” that is on or after 23 May 2018. In this case, [Ms A] ultimately advised that care for [Child A] changed from 28 March 2020 and thus the new legislative provisions apply.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to [Child A]. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment.  Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children.

3. There is no dispute that [Ms A] previously had 27% and Mr Yeager previously had 73% care of [Child A] and that these care percentages had been applied to the administrative assessment of child support. Both [Ms A] and Mr Yeager agreed that [Child A] went to stay with [Ms A] from 28 March 2020.

Mr Yeager’s evidence

1. Mr Yeager told me that [Child A] had been staying with friends from about November 2019, but he still continued to support her financially and emotionally. [Child A] had told him that she was going to visit her mother ([Ms A]) in the upcoming school holidays[1]. Due to the COVID-19 pandemic [Child A] went to stay with her mother a bit earlier (from 28 March 2020 instead of early April) and stayed a bit later (to 21 April 2020).

   [1] Queensland school holidays from 6 April 2020 to 17 April 2020

2. [Child A] moved into her own accommodation on 22 April 2020, which Mr Yeager had organised and paid for. Mr Yeager said that he also paid for [Child A’s] school fees, mobile phone and car expenses.

3. Mr Yeager said that [Child A] was only ever going to stay with [Ms A] temporarily over the school holidays and this temporary care arrangement did not amount to a care change.

4. Mr Yeager provided bank account statements for the period 27 December 2019 to 24 May 2020 (folios 73–84), indicating that he paid for mobile phone credits and car registration. He made some cash payments and paid $150 per week rent from 22 April 2020. The only payment he made in the period under review (i.e. between 28 March 2020 and 21 April 2020) was $80 for mobile phone credit on 5 April 2020 (folio 82).

[Ms A’s] evidence

1. [Ms A] did not participate in this review. She told Child Support on 5 August 2020 (folio 92) that [Child A] had been staying with friends until she decided to come and live with her. [Ms A] suggested that Mr Yeager did not want to pay child support and insisted he would pay for [Child A] to live somewhere else. [Child A] subsequently left her ([Ms A’s]) care on 22 April 2020 and now rents a room at a family friend’s home.

2. [Ms A] also stated that [Child A] has been granted youth allowance in May 2020 and is financially independent.

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). The policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide (the Guide), is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. In this case both parties agreed that [Child A] stayed with [Ms A] from 28 March 2020 and that [Child A] was living independently from 22 April 2020. Based on the evidence before me, the most appropriate relevant care period in this case is therefore the 23-day block period from 28 March 2020 to 21 April 2020 and there is no dispute that [Ms A] had 100% care in that period. Her care percentage prior to 28 March 2020 was 27%.

3. Having regard to section 55C of the Act such a change in care would result in a change to the cost percentages.  Thus, the existing care determinations ought to be revoked pursuant to section 54F of the Act.

4. Mr Yeager submitted that the care change from 28 March 2020 was only ever going to be for a short period, two weeks over the school holidays and was only a temporary change from the previous care pattern. [Child A] stayed a bit longer than planned because of the COVID-19 pandemic, but that was completely unexpected and unplanned.

5. [Ms A] argued that [Child A] had not been staying with Mr Yeager for some time, but was “couch surfing” before she decided to live with her ([Ms A]).

6. Child Support records show that Mr Yeager told them on 7 April 2020 (folio 20) that [Child A] had moved out of his care some time ago and that it was around “28.3.20 that [Child A] had finally gone to live with [[Ms A]]”. There is no mention of a temporary care arrangement over the school holiday period.

7. The Child Support staff member also noted that [Child A] had changed her contact address to [Ms A’s] address on 30 December 2019, when she applied for her Centrelink benefits (folio 20).

8. I note the Guide provides the following explanations in regard to one-off changes in care (at 2.2.2):

One-off block of 100% care

Where a parent or carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (section 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, either carer may request a new care percentage determination.

The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.

[emphasis added]

1. In this case, the relevant period is 23 days, a little less than four weeks and I am satisfied that [Ms A] generally would not have expected to have sole care of [Child A] for that period of time. It appears that [Ms A] expected that [Child A] came into her care on a permanent basis on 28 March 2020, not for a short-term period over the school holidays.

2. I am thus satisfied that [Ms A’s] 100% care of [Child A] in the block period from 28 March 2020 to 21 April 2020 ought to be recognised and care percentages ought to be reflected accordingly in the administrative assessment.

3. I have reached the same conclusion as the objections officer and will therefore affirm the decision under review.

DECISION

The decision under review is affirmed.