Zentner and Chaplow (Child support)
[2024] ARTA 426
•14 November 2024
Zentner and Chaplow (Child support) [2024] ARTA 426 (14 November 2024)
Applicant/s: Mr Zentner
Respondent: Child Support Registrar
Other Parties: Ms Chaplow
Tribunal Numbers: 2024/AC028210 and AC028254
Tribunal: Member I Sheck
Place: Melbourne
Date:14 November 2024
Decision:The Tribunal sets aside the decision under review and substitutes a new decision that Ms Chaplow’s care percentage for [Child 1] is 0% with effect from 11 January 2024.
CATCHWORDS
CHILD SUPPORT – change to the pattern of care – limited financial support – terminating event – existing care determination revoked – decision under review set aside and substituted
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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Mr Zentner and Ms Chaplow are the parents of [Child 1], born [in] June 2008. A case was first registered with Services Australia – Child Support (Child Support) for the assessment of child support on 6 August 2009 and Child Support has been responsible for collection of the liability from 19 May 2022. As at the beginning of 2024 the assessment of child support was based on care percentages of 100% for Ms Chaplow and 0% for Mr Zentner.
On 15 January 2024 Mr Zentner notified Child Support that [Child 1] had left Ms Chaplow’s care and was living with her boyfriend from 11 January 2024. On 24 February 2024 an officer of Child Support spoke with Ms Chaplow and she confirmed that [Child 1] had moved out of home but contended that she was still providing day to day care including emotional and financial support.
On 8 March 2024 a Child Support officer determined that [Child 1] was no longer in the care of either of her parents with effect from 11 January 2024 and therefore a terminating event had occurred. The parties were notified of this decision by letter dated 8 March 2024.
On 2 May 2024 Ms Chaplow contacted Child Support requested a review of the decision. Ms Chaplow provided supporting documents and requested that she be granted an extension of time in which to lodge her objection to the original decision.
On 22 June 2024 an objections officer of Child Support set aside the original decision of 8 March 2024 and substituted a new decision that Ms Chaplow’s care percentage for [Child 1] continued to be 100% from 11 January 2024 on. The decision was to be applied to the child support assessment with effect from 11 January 2024.
By application received on 8 July 2024, Mr Zentner asked the Administrative Appeals Tribunal (AAT) to review the objections officer’s decision. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 14 November 2024, the Tribunal conducted a hearing at which Mr Zentner gave evidence by MS Teams audio. Ms Chaplow had been notified of the hearing but did not answer the phone when the Tribunal called on two occasions, therefore the hearing proceeded in her absence. The Tribunal had before it the relevant documents from Child Support (pages 1 to 226), which had been copied to the parties.
CONSIDERATION
The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act 1989 (the Act). The Act sets out the statutory formula for the calculation of child support, which takes into account each parent’s adjusted taxable income and the level of care they provide for each child of the assessment. The provisions require Child Support (and the Tribunal on review) to determine whether an existing care determination can be revoked and, if so, what new care percentage decision can be made.
Has there been a change in care?
As at 11 January 2024 Child Support had recorded that in respect of [Child 1], Ms Chaplow had an attributed percentage of care of 100% and Mr Zentner, 0%. The first issue to be determined is whether the care that was actually taking place corresponded with the recorded percentages of care and if not, from what date the care change occurred.
The background to the case is as set out above. Both parties agree that [Child 1] left her mother’s home on 11 January 2024. Although a parent’s care percentage is generally based on the proportion of time that the child sleeps under their roof (usually referred to as “nights in care”), there is no definition of “care” in the legislation. In the case Polec & Staker & Anor (SSAT Appeal) FMCAfam 959, the Federal Court provided guidance in relation to the matters that should be taken into account in considering whether a parent continues to provide care for the child. The Court noted at [54]:
There are a number of factors that should be considered in determining whether a person is providing “ongoing daily care”. Some of those factors, which are provided for guidance only, are:
· Living arrangements - where is the child residing and who is making decisions about where the child is residing;
· Daily physical needs - how are the daily needs being met for the child and who is meeting the costs of those needs;
· Social and other activities - who is responsible for making decisions about the child’s daily activities and who is meeting the costs of those activities;
· Representations to others - who takes responsibility for liaising with others about the child’s daily care and how does this occur.
In this case the focus was on the financial support of [Child 1], as it appears that [Child 1] had taken the decision to live with her boyfriend [Boyfriend A] and she made her own decisions regarding her daily activities. Ms Chaplow has maintained in her evidence to Child Support that she continued to financially support [Child 1] after she left home. She has provided details of bank transfers from her to [Child 1’s] account. Many of these pre-date [Child 1’s] moving out. From the transaction list provided on 4 March 2024[1] it appears that Ms Chaplow transferred a total of $495.68 to [Child 1’s] account between 11 January and 4 March 2024, a period of 7 weeks. There is no information on the papers regarding whether [Child 1] paid rent or board when she was living with [Boyfriend A] and as Ms Chaplow did not attend the hearing as scheduled, the Tribunal was unable to obtain direct evidence on whether she did.
[1] Hearing papers, page 51
Mr Zentner gave the Tribunal a good deal of evidence relating to the history of the care arrangements. The basis of his case was that Ms Chaplow did not provide any care for [Child 1] after she left home. The Tribunal notes that Ms Chaplow and [Child 1] live in Queensland and Mr Zentner in South Australia. Mr Zentner said that he spoke to [Child 1] on the phone after she left home and she told him that the only time she spoke to her mother was when Ms Chaplow wanted money from her. Due to the second-hand nature of this evidence the Tribunal is not inclined to give it much weight. It was clear from the tenor of Mr Zentner’s oral evidence at the hearing as well as the statements that each of the parties have made to Child Support regarding the other, that the relationship between Mr Zentner and Ms Chaplow is acrimonious.
Returning then to the factors as noted at paragraph 10 of these Reasons, it does not appear that Ms Chaplow made the decisions about where [Child 1] lived, or what her daily activities were. She has provided evidence including third party statements that she has taken [Child 1] to work and picked her up but there is no clear evidence as to the frequency of this. Mr Zentner told the Tribunal that [Child 1] was initially living with [Boyfriend A] and [Boyfriend A’s] mother and the Tribunal accepts that this is the case. Had Ms Chaplow attended the hearing the Tribunal would have sought information on the arrangements of the household where [Child 1] resided; for instance whether [Child 1] paid board, whether [Boyfriend A’s] mother shopped and cooked for the household or did [Child 1’s] laundry and so on.
it appears that [Child 1] was providing some of her own financial support, as she works on a casual basis at [Employer 1],[2] however the details of her wages are not included in the hearing papers. As noted above, Ms Chaplow transferred $495.68 to [Child 1’s] account over seven weeks, an average of some $70 a week. During this period, the costs of the child as calculated under the child support assessment were $180.17 a week or a total of $900.85 over the first 7 weeks of her absence. Even accepting that Ms Chaplow made some other miscellaneous payments for medication for [Child 1], it does not appear that Ms Chaplow was fully financially supporting [Child 1]. Further to this, the Tribunal notes that over the period 11 January to 4 March 2024, Mr Zentner paid Ms Chaplow $1,474.02 by way of child support, so only around 1/3 of this was passed on to [Child 1] for her support.
[2] Hearing papers, page 96.
On balance and having regard to the various factors relevant to determining whether a child was in the care of their parent, the Tribunal concludes that [Child 1] ceased to be in the care of her mother Ms Chaplow from 11 January 2024 and her care percentage was 0% from that date.
As at January 2024 the assessment of child support reflected that Ms Chaplow had a care percentage for [Child 1] of 100% and Mr Zentner, 0%. The Tribunal has found that Ms Chaplow’s care percentage was 0% with effect from 11 January 2024. There was no change to Mr Zentner’s care percentage. The existing care determination for Ms Chaplow must therefore be revoked under section 54F of the Act and replaced with a new determination.
What is the date of effect of the change to the assessment?
The date of effect of the revocation of a care determination is in accordance with subsection 54F(3), as follows:
(3)The revocation of the determination takes effect at the end of:
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person - the day before the change of care day; or
(b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i)the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii)the responsible person's care of the child has reduced--the day before the change of care day.
Mr Zentner notified Child Support of the care change on 15 January 2024, which was within 28 days of the care change. This means that the existing determination of care for Ms Chaplow is revoked from 10 January 2024 and her new care percentage of 0% for [Child 1] takes effect from 11 January 2024, the day that [Child 1] left Ms Chaplow’s care.
DECISION
The Tribunal sets aside the decision under review and substitutes a new decision that Ms Chaplow’s care percentage for [Child 1] is 0% with effect from 11 January 2024.
Date(s) of hearing: Thursday, 14 November 2024
0
0
0