Zahra and Zahra (Child support)

[2020] AATA 4406

Zahra and Zahra (Child support) [2020] AATA 4406 (30 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019102

APPLICANT:  Ms  Zahra

OTHER PARTIES:  Mr Zahra

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  30 June 2020

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 determinations correctly 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 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

1. Ms Zahra and Mr Zahra are the parents of [Child 1] and [Child 2]. A child support case was registered in 2008 with what is commonly called the Child Support Agency, or CSA. Court Orders were made in 2009 concerning the parents’ care of the children.

2. In late 2018 the CSA decided to record Ms Zahra as providing 52% care to the children with effect from 27 July 2018, and Mr Zahra as providing 48% care to the children with effect from 27 September 2018. The different dates of effect were the result of the parents’ delay in reporting the change in care.

3. On 15 July 2019, Mr Zahra reported a change in care from 5 July 2019. On 20 July 2019 the CSA decided to not record a change in care. On 13 November 2019, Mr Zahra objected to that decision. On 8 April 2020 an objections officer made two decisions:

   ·    first, the objections officer decided to record Ms Zahra as providing 44% care and Mr Zahra as providing 56% care with effect from 5 July 2019; and

   · second, the objections officer decided to not make a determination pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”), which meant that the objections officer had concluded that Mr Zahra had not objected within 28 days of being notified of the decision dated 20 July 2019, and special circumstances had not prevented him from objecting within 28 days, and therefore the objections officer’s first decision had effect from the date on which Mr Zahra objected, which was 13 November 2019.

4. On 8 April 2020, the CSA wrote to both parents and notified them of the objections officer’s decisions. It also informed them that if they wished to seek further review of the decisions, they needed to do so within 28 days of being notified of the decisions.

5. On 22 May 2020, Ms Zahra belatedly applied to the Tribunal for further review. I conducted a hearing on 30 June 2020. Ms Zahra and Mr Zahra participated by conference phone. Ms Zahra confirmed that she was only seeking review of the objections officer’s first decision.

6. Care decisions usually reflect the patterns of care each parent “has had, or is likely to have,” over the relevant care period: section 50 of the Child Support (Assessment) Act 1989 (“the Assessment Act”). The objections officer’s first decision was based, in part, on a finding that from 5 July 2019, Mr Zahra provided a general pattern of care which consisted of three nights of care per week during school terms as well as care during all of the school holidays. There are 40 weeks of school and 12 weeks of school holidays per year, and (40 x 3 + 12 x 7) / 365 = 55.8%. Percentages higher than 50% are rounded up to the nearest whole percentage: section 54D of the Assessment Act. At the hearing both parents confirmed that Mr Zahra started providing that pattern of care from 5 July 2019.

7. However, if certain requirements are satisfied, parents can be recorded as providing the care they would have provided pursuant to a formal care arrangement, such as court orders, rather than the care they actually provided. Such decisions are made pursuant to section 51 of the Assessment Act, and are called interim determinations. In the current case, the maximum period for an initial interim determination was 26 weeks from the date on which the change in care occurred: item 2 of section 53A of the Assessment Act. One of the requirements of section 51 is that:

   (d) a person who has reduced care of the child is taking reasonable action to ensure that the [Court Orders are] complied with.

8. I noted that it was not until 29 January 2020 that Ms Zahra first referred to taking legal action when discussing the matter with the CSA. Ms Zahra confirmed that it was around that time that she first made an appointment to see a legal aid solicitor. That action was taken more than 26 weeks after the change in care occurred.

9. The Court Orders were made when [Child 1] was 4 and [Child 2] was 2. In July 2019, [Child 1] was 15 and [Child 2] was 13. I asked Ms Zahra if she had taken any action prior to January 2020 to ensure compliance with the Court Orders. She said she had spoken to the children about them spending more time with their father, and she had sought to persuade them to spend more time with her, “but my children have two legs, … and I didn’t want to rock the boat.” I am satisfied that Ms Zahra took some action to provide care pursuant to the Court Orders, but in the context of section 51 of the Assessment Act, she was not taking reasonable action to ensure compliance with the Court Orders. That is not to suggest that she should have taken further action; it is simply a finding of fact that is made in the context of the relevant legislation. It follows that the requirements of section 51 were not satisfied, and the objections officer’s first decision was correct. That decision will be affirmed, and it is therefore not necessary to consider whether there were special circumstances that prevented Ms Zahra from applying to the Tribunal for review of the objections officer’s first decision within 28 days of being notified of that decision: section 95N of the Registration Act.

DECISION

The decision under review is affirmed.