York and Bloomfield (Child support)

[2019] AATA 5126

York and Bloomfield (Child support) [2019] AATA 5126 (5 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016583

APPLICANT:  Ms York

OTHER PARTIES:  Child Support Registrar

Mr Bloomfield

TRIBUNAL:Member K Dordevic

DECISION DATE:  5 September 2019

DECISION:

The decision under review is affirmed. 

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determination revoked and new determination made - 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. Ms York and Mr Bloomfield are the parents of [Child 1].

2. From 1 July 2008 the Department of Human Services – Child Support (the Department) recorded that Ms York had sole care of [Child 1]. 

3. On 7 February 2019 Mr Bloomfield advised the Department that Ms York had ceased all care of [Child 1], who was residing with his paternal grandparents. On 21 March 2019 the Department accepted Mr Bloomfield’s application, finding that neither parent was providing care of [Child 1] and that a child support terminating event had occurred.

4. On 26 March 2019 Ms York objected to that decision. On 22 May 2019 an objections officer disallowed her objection.

5. Ms York sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 23 May 2019.

6. The matter was heard at 12pm on 5 September 2019. Ms York appeared in person. Mr Bloomfield appeared by conference telephone. In reaching its decision the tribunal considered the sworn evidence of Ms York and Mr Bloomfield as well as the documentation provided by the Department (folios 1–113). Ms York provided additional documents (A1–A35) and Mrs Bloomfield, Mr Bloomfield’s mother, provided additional documents (C1-C6). A copy of these documents was provided to the Department and to Mr Bloomfield.

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The issue which arises in this case is the care percentages that are applicable for each parent in the administrative assessment from 14 June 2018.

CONSIDERATION

1. Section 50 of the Act provides for a new care decision to be made if the parent has had, or is likely to have, a pattern of care during a period as the Registrar considered appropriate in the circumstances. The decision-maker’s task is to determine the pattern of care based on the actual care at the time of notification and the likely care thereafter.

10.  The tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same – what was the pattern of care up until the date of notification and what was likely to occur thereafter?

11.  Ms York states that there was a change to [Child 1’s] care arrangements in about June 2018, whereby [Child 1] would stay overnight at his grandparents’ home three or four nights per week (primarily Monday to Wednesday nights and occasionally on Saturday nights) primarily so that he could attend [sport] training. She maintains that she continued to provide financial and emotional support to him.

12.  Mr Bloomfield contends that there was a change to the care arrangements sometime in January 2018, after Ms York asked [Child 1] to leave her home and advised him to live with his grandparents. There was a period in June 2018 when [Child 1] returned to her care for some weeks, but it soon broke down again. In his initial statements to the Department Mr Bloomfield stated that his parents had sole care of [Child 1] from 14 June 2018, later that they had 90% care of [Child 1] and more recently that they had 80% care of [Child 1] from 14 June 2018.

13.  The tribunal did not find either parent a compelling witness. They have both made inconsistent statements to the Department regarding [Child 1’s] care. The statements provided by each parties’ family members were given little weight given their relationships to the parties, though the tribunal did prefer the evidence of Ms Bloomfield, who was willing to concede that she did not have [Child 1] “all the time” during the relevant period. The tribunal formed the view that the most plausible account of [Child 1’s] care was that he was primarily cared for by his grandparents and spent one night with his mother per week. The tribunal reached this conclusion taking into account that Mr Bloomfield did deliver a bed to Ms York’s home in October 2018, apparently as he did not approve of [Child 1] sleeping in a small single bed.

14. The tribunal is satisfied that Ms York had no more than 52 nights care per annum from 14 June 2018, which is equivalent to a care percentage of 14%. Mr Bloomfield does not dispute that he had no care of [Child 1] during the relevant period. Subsection 54F(1) of the Act states that a percentage of care determination must be revoked if there is a change to the parent’s cost percentage, as is the case in this matter. Pursuant to subsection 54F(3) of the Act the previous care determination must be revoked from 13 June 2018.

15. Subsection 12(2AA) of the Act states that a child support terminating event occurs when both parents cease to be eligible carers, the Department is notified of the change to the care arrangements more than 26 weeks after the change and the non-parent carers are not entitled to child support, as is the case in this situation. Thus, whilst the tribunal has determined that Ms York had 14% care of [Child 1], a terminating event occurred on 13 June 2018. Therefore, the operative decision made by the Department is correct.

DECISION

The decision under review is affirmed.