Benjaminson and McMorrow (Child support)

[2021] AATA 3178

Benjaminson and McMorrow (Child support) [2021] AATA 3178 (29 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021539

APPLICANT:  Mr Benjaminson

OTHER PARTIES:  Child Support Registrar

Ms McMorrow

TRIBUNAL:Presiding Member M Sutherland

Senior Member R Ellis

DECISION DATE:  29 July 2021

DECISION:

The Tribunal sets aside the decision under review and in substitution, decides Mr Benjaminson provides 81 per cent care and that Ms McMorrow provides 19 per cent care for [the child] from 27 September 2018, with effect from 5 March 2021.

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 473EC(2) of the Migration Act 1958 and replaced with generic information which does not allow the identification of a referred applicant, or their relative or other dependant.

REASONS FOR DECISION

BACKGROUND

1. This review is about a change to the percentage of care determination for Mr Benjaminson and Ms McMorrow in respect of [their son] (born March 2007).

2. There has been a child support assessment in place since 8 June 2009 and Ms McMorrow is the liable parent.

3. From 2 October 2012 the child support assessment reflected Mr Benjaminson as having 100 per cent care and Ms McMorrow as having 0 per cent care of [the child].

4. On 27 September 2018 Ms McMorrow notified the Child Support Agency of a change to the care arrangements stating that she provided care of 70 nights, or 19 per cent care, from 27 September 2018.

5. On 3 November 2018 the Child Support Agency made the decision to refuse the change of care as advised by Ms McMorrow.

6. On 5 March 2021 Ms McMorrow objected to this decision and on 11 May 2021 the Child Support Agency allowed the objection in part and made the decision to reflect that Mr Benjaminson provides 77 per cent care and Ms McMorrow provides 23 per cent care of [the child] from 31 August 2018 but effective from 5 March 2021 (the objection decision).

7. On 20 May 2021 Mr Benjaminson applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 29 July 2021. Mr Benjaminson and Ms McMorrow gave evidence on affirmation by conference telephone. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (584 pages). The Tribunal also received additional information from Mr Benjaminson prior to the hearing and a copy was distributed to the parties (A1-A29).

ISSUES

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

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·      has there been a change in the pattern of care for [the child] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·      from what date should the new percentage of care determinations take effect?

CONSIDERATION

Mr Benjaminson’s evidence

1. Mr Benjaminson said:

   ·      There was no court order or written agreement determining care of [the child].

   ·      He had taken sole care of [the child] with the help of his mother since [the child] was only 13 months old.

   ·      Ms McMorrow only had intermittent care of [the child] and often when she had made arrangements to see [the child] she let him down by not arriving. Sometimes she did not see him for months at a time. She was generally unreliable; she worked in [a work sector] with odd hours.

   ·      He denied that there had been a change of care in September 2018 or at all since then, nothing had changed, Ms McMorrow only saw [the child] intermittently and irregularly.

   ·      He was adamant that the finding by the Child Support Agency that Ms McMorrow had 23% care of [the child] was wrong and that Ms McMorrow had only notified the Child Support Agency of the change as it affected the amount of child support she would have to pay if successful.

   ·      The details on the calendar beginning September 2018 that Ms McMorrow had marked and made notes on and submitted into evidence to support her claim for care were manufactured and inaccurate.

   ·      The SMS messages she sent which dealt with care on a particular date were inaccurate as she often did not turn up to collect [the child].

   ·      He had provided third party statements to support what he was telling the Tribunal.

   ·      He was dissatisfied with the way the Child support Agency had dealt with the matter generally.

2. Mr Benjaminson provided in evidence third party statements from [Mr A], [Mr B], [Ms B], Mr Benjaminson’s mother and stepfather, and [Ms C], Mr Benjaminson’s partner. The statements generally support Mr Benjaminson’s contention that he was the primary care giver of [the child] and that Ms McMorrow only saw [the child] intermittently, sometimes with big gaps in between visits. The statements do not however deal specifically with the period commencing 31 August 2018 to September 2019.

Ms McMorrow’s evidence

1. Ms McMorrow said:

   ·      Care was determined by Mr Benjaminson who was very controlling.

   ·      Care changed from around late August 2018 because her relationship with Mr Benjaminson had improved and he allowed her to have care of [the child].

   ·      Care was arranged primarily by text messages between the parents.

   ·      Her care was generally one or two nights on most weekends depending on her shifts at work and additional care during school holidays.

   ·      If her relationship with Mr Benjaminson deteriorated he would sometimes deny her access to [the child]. This happened in October 2018.

   ·      She provided evidence in the form of a care calendar and text messages between the parents to support her contention that care had changed from around late August 2018.

2. Ms McMorrow provided third party statements by her daughter, [Ms D], who lives with her, and from a friend [Ms E]. The statements generally support Ms McMorrow’s contention that she had ongoing care of [the child] over the years. The two statements do not deal specifically with the period beginning 31 August 2018 to September 2019.

Oral evidence

1. Mr Benjaminson in his evidence denied that there has been any significant care provided by Ms McMorrow and stated that the calendar entries from September 2018 and SMS messages did not prove she had care. He said it would be easy for Ms McMorrow to fabricate the dates in her care calendar. He said just because care of [the child] had been discussed in SMS messages between the parents did not mean Ms McMorrow actually had care as she would regularly break her commitments.

2. Ms McMorrow contends otherwise, that she had regular ongoing care of [the child]. Her evidence is supported by the two third party statements, by the calendar she submitted commencing from 31 August 2018 and the text messages to and from Mr Benjaminson dealing with care of [the child].

Calendar provided by Ms McMorrow for the period 31 August 2018 to 1 February 2020

1. Ms McMorrow provided a calendar as evidence of her care of [the child] from 31 August 2018 onwards. Ms McMorrow has marked 77 nights during the 12 month period from 31 August 2018 when she had care of [the child]. She says she was precluded from seeing [the child] by Mr Benjaminson for 3 weeks during October 2018.

2. The care calendar shows Ms McMorrow had the following care of Shaye from 31 August 2018:

   August 2018 – 31/8 (one night)
   September 2018 – 1/9, 8/9, 14/9, 15/9, 22/9, 23/9, 29/9 (seven nights)
   October 2018 – nil
   November 2018 – 3/11, 10/11, 17/11, 23/11, 24/11 (five nights)
   December 2018 – 2/12, 8/12, 15/12, 21/12, 22/12, 23/12, 24/12 (seven nights)
   January 2019 – 3/1, 4/1, 5/1, 8/1, 9/1, 12/1, 13/1, 14/1, 15/1, 19/1, 20/1, 27/1 (12 nights)
   February 2019 – 1/2, 8/2, 16/2, 22/2, 23/2, 27/2 (six nights)
   March 2019 – 2/3, 23/3, 30/3 (three nights)
   April 2019 – 5/4, 6/4, 7/4, 8/4, 9/4, 10/4, 11/4, 18/4, 19/4, 20/4, 21/4, 22/4, 23/4, 24/4, 25/4, 26/4 (16 nights)
   May 2019 – 4/5, 11/5, 18/5 (three nights)
   June 2019 – 2/6, 15/6, 21/6, 22/6, 28/6, 29/6 (six nights)
   July 2019 – 7/7, 8/7, 9/7, 10/7, 11/7, 12/7, 13/7, 19/7, 20/7, 26/7, 27/7 (11 nights)

   August 2019 – no records provided for August 2019

SMS messages exchanged between the parties regarding care of [the child] from September 2018

1. The Tribunal reviewed the SMS exchanges between the parents provided in evidence by Ms McMorrow for the period from 31 August 2018 to 30 August 2019. In relation to the care of [the child] the date of each SMS exchange broadly corresponds with the dates she marked on the care calendar. The SMS exchanges also confirm that Mr Benjaminson refused care during October 2018.

2. Mr Benjaminson has told the Tribunal there has been no real change in the care of [the child] and any care Ms McMorrow did have was sporadic at best. The third-party statements he has provided support this view although they are not specific about the care of [the child] from 31 August 2018. Ms McMorrow has said that care changed from around 31 August 2018 when she started having [the child] on one or two nights each weekend and additional care during school holidays.

3. After cross checking the care calendar provided by Ms McMorrow with the SMS exchanges between the parents the Tribunal is satisfied that Ms McMorrow provided care of [the child] for 71 nights for the 12-month care period commencing from 31 August 2018.

4. Even if, as Mr Benjaminson claims, Ms McMorrow made arrangements with him to have care of [the child] but then missed some of these care events due to unforeseen circumstances this is unlikely to impact on the overall amount of child support payable. If Ms McMorrow had care of 61 nights rather than 71 nights, for example, there is no change to the cost percentage and no change to the amount of child support payable.

5. The existing percentages of care reflected in the assessment for [the child] were 100 per cent care to Mr Benjaminson and 0 per cent care to Ms McMorrow. The Tribunal is satisfied that, in this case, section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

6. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Benjaminson and Ms McMorrow under section 50 of the Act.

2. The Tribunal finds a new pattern of care for [the child] commenced from 31 August 2018. The markings on the calendar show 77 nights, or 22 per cent, care. Ms McMorrow, due to being in the [work sector] industry and for unforeseen circumstances, might have missed some arranged care, say 10 per cent or 7 nights.

3. For the reasons outlined above the Tribunal finds that Mr Benjaminson provides 81 per cent care (294 nights) and Ms McMorrow provides 19 per cent care (71 nights) of [the child] from 31 August 2018.

Date of effect of new care percentage decision

1. An objection to a care percentage decision does not have to be lodged within 28 days, however, if it is lodged outside the 28-day period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the R&C Act).

2. The Child Support Agency may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) that subsection 87AA(1) applies as if the reference to 28 days were a reference to such longer period as determined to be appropriate.

3. In this case the Child Support Agency did not find special circumstances existed and declined to make such a determination. As a consequence, the date of effect of the objection decision is 5 March 2021 which is the date Ms McMorrow lodged her objection.

4. When asked by the Tribunal why she had waited for some two and a half years to lodge an objection to the decision made on 3 November 2018, Ms McMorrow said that the Tribunal should consider the “special circumstances” which applied in her case:

   ·      She was hesitant to dispute the care decision as Mr Benjaminson would stop her seeing and having care of [the child].

   ·      She has suffered major illness since 2015 and has had to have regular hospital visits.

   ·      She had work commitments and her priority since 2018 had been to look after her daughter.

   ·      She always had other matters to concentrate on which distracted her.

5. The Tribunal finds the matters raised by Ms McMorrow do not constitute special circumstances which would have prevented her from lodging an objection within the required timeframe.

DECISION

The Tribunal sets aside the decision under review and in substitution, decides Mr Benjaminson provides 81 per cent care and that Ms McMorrow provides 19 per cent care for [the child] from 31 August 2018, with effect from 5 March 2021.