Baba and O’Bear (Child support)

[2020] AATA 4782

Baba and O’Bear (Child support) [2020] AATA 4782 (13 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/BC019353; 2020/BC019318

APPLICANT:  Mr Baba

OTHER PARTIES:  Child Support Registrar

Miss O’Bear

TRIBUNAL:Member S Letch

DECISION DATE:  13 October 2020

DECISIONS:

Review number 2020/BC019353

The Tribunal sets aside the decision under review and, in substitution, decides:

(a) care for [Child 1] and [Child 2] be recoded as 84% to Mr Baba and 16% to Miss O’Bear from 31 January 2019;

(b) to refuse to make a determination pursuant to section 95N of the Child Support (Registration and Collection) Act 1988, the result being that the date of effect of the decision in (a) is 1 July 2020.

Review number 2020/BC019318

The Tribunal sets aside the decision under review and, in substitution, decides:

(a) care for [Child 1] be recoded as 84% to Mr Baba and 16% to Miss O’Bear from 21 September 2019;

(b) to refuse to make a determination pursuant to section 95N of the Child Support (Registration and Collection) Act 1988, the result being that the date of effect of the decision in (a) is 24 June 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there were changes to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decisions under review set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decisions – late applications for review – whether there were special circumstances that prevented the applications for review being lodged in time – special circumstances do not exist – tribunal decides not to make a determination under subsection 95N(2)

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

1. Mr Baba and Miss O’Bear are the parents of [Child 1] and [Child 2].

2. This matter involves two decisions. The first application to the Tribunal concerns an objection decision dated 7 April 2020 (2020/BC019318) concerning [Child 1]; it is convenient to set out some key parts of the objection decision by way of background:

   DECISION UNDER REVIEW

   The decision made on 1 November 2019 to reflect on the assessment that Mr Baba provides 86% care
   and Miss O’Bear provides 14% care of [Child 1] from 21 September 2019.

   Miss O’Bear has objected to this decision because [Child 1] resides with her paternal grandfather from 21 September 2019.

   …

   WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION

1. From 15 April 2017, the percentage of care reflected on the assessment is that Miss O’Bear provides
16% care and Mr Baba provides 0% care of [Child 1].

2. On 11 October 2019, Mr Baba reported a new change in care arrangements for [Child 1]. Mr Baba
stated that [Child 1] has moved in with him on 21 September 2019 and from this date, Miss O’Bear will
provide care of her for two nights per fortnight.

3. On 1 November 2019, we made the decision to reflect on the assessment that Mr Baba provides
86% care and Miss O’Bear provides 14% care of [Child 1] from 21 September 2019.

4. On 11 November 2019, Miss O’Bear objected to this decision because [Child 1] resides with her
paternal grandfather from 21 September 2019.

5. On 12 November 2019, we issued a letter to Mr Baba. This letter invited Mr Baba to contact us by 10

December 2019 to provide a response to Miss O’Bear's claims. However, Mr Baba has not contacted us.

…

In the absence of evidence provided by Mr Baba and/or Miss O’Bear, the verbal information provided by
them is inconclusive to the extent that we are unable to determine what care percentage they
provide [Child 1] from 21 September 2019.

Therefore, we will assume that the state of affairs known to us at the time the existing care
determination was made to reflect that Miss O’Bear provides 16% care and Mr Baba provides 0% care of
[Child 1] from 15 April 2017 is continuing. As this existing care determination cannot be revoked,
the child support assessment will not be amended.

Based on this, we have set aside the decision made on 1 November 2019.

We have made the decision to refuse to reflect a new care determination for [Child 1] from 21
September 2019. Therefore, the assessment will continue to reflect that Miss O’Bear provides 16% care
and Mr Baba provides 0% care of [Child 1] from 15 April 2017.

The objection is allowed.

…

1. The second application concerns [Child 1] and [Child 2] (2020/BC019353); it is again convenient to set out extracts from the objection decision dated 8 October 2019:

   DECISION UNDER REVIEW

   The decision made on 11 March 2019 to reflect on the assessment that Miss O’Bear provides 16% care

   and Mr Baba provides 0% care of [Child 1] and [Child 2] from 15 April 2017.

   …

   Mr Baba has objected to this decision because there is a court order which states that [Child 1] and
   [Child 2] live with him and they spend every second weekend with Miss O’Bear. Mr Baba advised
   that the court order was not followed and Miss O’Bear did not provide care until last year. Mr Baba stated
   he had nowhere to live so his father offered for them to stay at his house in April 2017. Mr Baba stated
   that he was living in a caravan in the backyard as there was not enough room in the house for them
   all. Mr Baba stated his father looks after the girls while he is at work but when he is at home he cares
   for the girls (feeding them cleaning etc.) Mr Baba stated that he moved out approximately two weeks
   ago and the girls are still at his father`s while he tries to sort out transportation to and from school.
   Mr Baba stated he does not pay his father any board but he does pay for food for all of them, clothes
   for the girls, school fees (books, uniforms, excursions etc.) and essentials. Mr Baba stated that
   [Child 1] and [Child 2] have never left his care but at present his father will not allow them to

   come and live with him at his new place.

   …

   REASONS FOR THE DECISION

   Miss O’Bear reported a new change in care arrangements for [Child 1] and [Child 2] pn 31 January 2019.

   During our discussions with Mr Baba, he stated that he, and [Child 1] and [Child 2] live with his father and he supports the girls.

   Miss O’Bear did not participate in the objection process.

   …

   In the absence of sufficient evidence provided by either parent, we cannot be satisfied that the decision made on 11 March 2019 was incorrect. Therefore, in these cases, we will assume that the state of affairs known at the time the care decision was made was correct.

   …

   The objection is disallowed.

   …

1. Mr Baba participated in the hearing by conference telephone. Miss O’Bear had informed the Tribunal in advance of the day of the hearing she did not wish to participate and was not contacted at the time of the hearing; she contacted the Tribunal shortly after the hearing had been conducted to advise she had received text messages from the Tribunal indicating she would be called and had prepared herself to participate. She provided an email to the Tribunal following the hearing advising the following (unedited):

   I wanted to have my say to n state that [Child 1] left Mr Baba’s care on 21st
   sep 2019 to go into the care of Mr Baba’s dads n that i have had the girls
   every fornight for long time now as my care hasmt changed i have
   them every fornight n n fathers day 2020 [Child 2] left his care n dont

   see them at all anymore so his care is zero care

2. In short, Mr Baba’s position was consistent with his representations to CSA; at all material times, he was financially supporting for the children, and was responsible for decisions concerning their day-to-day welfare. He had moved to a property he had shared with his father; so that both girls could have their own bedrooms, he slept in a caravan on the property. Mr Baba said that his concern was not with the child support assessment, but with the very large Centrelink debt he has incurred as a result of the acceptance of Miss O’Bear’s verbal advice to the CSA to the effect he had no care of the children from April 2017.

3. Mr Baba told the Tribunal that from around the beginning of this year, [Child 1] has been “changed over” to his father with CSA and Centrelink, who now has the responsibility for [Child 1’s] care.

4. The Tribunal observes it is quite common for parents to receive assistance from grandparents in caring for children. It is not uncommon for grandparents to live at the same address as parents and their children. This does not mean that a parent relinquishes their care for child support and Centrelink purposes.

5. The Tribunal found Mr Baba a credible witness; the Tribunal is satisfied he continued to have responsibility for the care of both children at all material times. He provided financial support and continued to be ultimately responsible for decisions about the welfare of both girls.  The Tribunal does not agree with the CSA’s approach.

6. There are different rules for the date of effect of care decisions in child support and Centrelink decisions. There is effectively no time limit in respect of Centrelink debt decisions based on a change in recorded care; however, there are time limits for child support for both making an objection and applying to the Tribunal for review. In both instances, where an application is made more than 28 days after notification of the original decision, any change to the earlier determination can only take effect from the day of the objection or application - unless there are special circumstances preventing an objection or Tribunal application being made (see sections 87AA and section 95N of the Child Support (Registration and Collection) Act 1988.

Decision 2020/BC019353

1. Care for both children had been recorded as 100% to Mr Baba from 2015 when, on 31 January 2019, Miss O’Bear notified the CSA that she had 16% care of the children, and that Mr Baba had no care of both children – she advised the children were in Mr Baba’s father’s care. Furthermore, she claimed Mr Baba’s father was responsible for the care of both girls all the way back to April 2017.

2. The Tribunal observes these are “point in time” decisions; the Tribunal is satisfied that at the time of Miss O’Bear’s notification, Mr Baba should be recorded as providing 84% care (and not 0% care), and Miss O’Bear 16% care.

3. Mr Baba did seek review by the Tribunal until 1 July 2020, more than 28 days after the objection decision of 8 October 2019. Mr Baba did not advance any circumstances which prevented his application; rather, it seems he chose not to take the matters further, and it was only when notified of a large Centrelink debt that he took further steps.

4. As a result, the Tribunal refuses to make a determination pursuant to section 95N. The result is that the date of effect of the Tribunal’s decision to change the care determination to 84% to Mr Baba and 16% to Miss O’Bear will be 1 July 2020, the date Mr Baba applied to the Tribunal. As [Child 1] left his care in early 2020, there will be no practical impact in respect of her ([Child 1] will continue to effectively be assessed as being in his 0% care in the child support assessment from 31 January 2019); for [Child 2], the effect will be she will be assessed as being in Mr Baba’s 0% care from 31 January 2019 to 30 June 2020.

Decision 2020/BC019318

1. This matter concerns a notification by Mr Baba on 11 October 2019 that he had 86% care, and Miss O’Bear 14% care, of [Child 1] from 21 September 2019. The CSA accepted that on 1 November 2019; on Miss O’Bear’s objection, Mr Baba’s care percentage was changed on 7 April 2020 to 0%, and Miss O’Bear’s care recorded as 16%. The Tribunal finds that his care should have remained to be recorded as 84%.

2. Again, Mr Baba did not apply to the Tribunal until 24 June 2020. Again, there were no special circumstances preventing an application within the 28 day period. The Tribunal refuses to make a determination under section 95N; as [Child 1] left Mr Baba’s care in early 2020, there will be no practical effect on the child support assessment (meaning that, in practical terms, [Child 1] will continue to be assessed as not being in Mr Baba’s care from September 2019 until [Child 1] left his care.

3. As the Tribunal has reached different conclusions to the objections officers, the decisions under review will be set aside.

DECISION

Review number 2020/BC019353

The Tribunal sets aside the decision under review and, in substitution, decides:

(a) care for [Child 1] and [Child 2] be recoded as 84% to Mr Baba and 16% to Miss O’Bear from 31 January 2019;

(b) to refuse to make a determination pursuant to section 95N of the Child Support (Registration and Collection) Act 1988, the result being that the date of effect of the decision in (a) is 1 July 2020.

Review number 2020/BC019318

The Tribunal sets aside the decision under review and, in substitution, decides:

(a) care for [Child 1] be recoded as 84% to Mr Baba and 16% to Miss O’Bear from 21 September 2019;

(b) to refuse to make a determination pursuant to section 95N of the Child Support (Registration and Collection) Act 1988, the result being that the date of effect of the decision in (a) is 24 June 2020.