Bigden and Aleshire (Child support)

Bigden and Aleshire (Child support) [2023] AATA 1641 (5 May 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC025197
APPLICANT:  Mr Bigden
OTHER PARTIES:  Child Support Registrar
Ms Aleshire

TRIBUNAL:Member J Thomson
DECISION DATE: 5 May 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care percentage determinations for [Child 1] of 50% shared equal care be recorded for each of Mr Bigden and Ms Aleshire from 16 March 2022 with effect from the start of the administrative assessment being 16 March 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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 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

Mr Bigden and Ms Aleshire are the parents of [Child 1], born 2004.
Mr Bigden seeks review of an objection decision made by Services Australia – Child Support (the Agency) on 7 November 2022. This decision disallowed his objection to an earlier decision of the Agency dated 8 April 2022 to accept Ms Aleshire’s application for a child support assessment reflecting the care percentages for the child [Child 1] of 100% to Ms Aleshire and 0% to Mr Bigden from 16 March 2022 effective from the start of the administrative assessment being 16 March 2022.
The Tribunal heard the matter on 30 March 2023. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Agency (folios 1 to 99), admitted into evidence and marked Exhibit 1. Both parents had copies of these documents with them at the hearing.

ISSUES

The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what happened up until the date of notification and what was likely to happen thereafter?
The issues which arise in this case are:
· What was the likely pattern of care for the child, [Child 1], from the start of the administrative assessment; and,
· From what date should the new care percentages apply?

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibit 1 before the Tribunal at the hearing.
On 16 March 2022, Ms Aleshire applied to the Agency for an administrative assessment of child support payable by Mr Bigden. At the time of her application, she informed the Agency that the care pattern being followed by the parents with respect to [Child 1] since the parents’ separation on 14 November 2019 was reflected as 50% shared care.
The Agency unsuccessfully attempted to contact Mr Bigden to discuss Ms Aleshire’s child support assessment application by telephone and mail on 31 March 2022 and 7 and 8 April 2022 and on 8 April 2022 made a decision to accept Ms Aleshire’s application for a child support assessment, recording care percentages of 100% to Ms Aleshire and 0% to Mr Bigden from 16 March 2022.
The Agency notified the parents of its decision to accept Ms Aleshire’s child support assessment application by letters sent to them on 8 April 2022.
On 28 April 2022, Mr Bigden contacted the Agency by telephone, the substance of which is recorded at page 39 of Exhibit 1. In that telephone conversation, Mr Bigden is recorded as informing the Agency officer, relevantly, that the care percentage information for [Child 1] provided by Ms Aleshire to the Agency (on 16 March 2022 at the time of her lodging her child support assessment application) of 100% to her and 0% to Mr Bigden were not correct, that the correct care percentages were 50% to each parent, and that [Child 1] “comes and goes whenever he wants, however it would work out to be average 7 nights in a fortnight”.
As recorded at page 40 of Exhibit 1, the Agency recorded Mr Bigden’s telephone call referred to in the preceding paragraph as a change in care request (otherwise known as a change in care notification), and after unsuccessfully attempting to contact Ms Aleshire by telephone and mail on 9 June 2022 (see pages 43 and 44 of Exhibit 1), proceeded to make a decision to accept Mr Bigden’s change in care request/notification, recording changes in care of 50% to each parent, notified on 28 April 2022, and the date of change as 19 November 2019, presumably in reference to the approximate date of the parents’ separation in November 2019 (see pages 46 and 47 of Exhibit 1).
The Agency sent letters notifying of its 28 April 2022 decision to each parent on 28 April 2022 (see pages 51 to 53 of Exhibit 1).
The Agency’s file note of 9 August 2022 at page 54 of Exhibit 1 records a telephone call from Mr Bigden in which he complains of the Agency’s failure to inform him of matters relating to care arrangements for [Child 1], in response to which the Agency notes that its letter of 28 April 2022, notifying him of the Agency’s change in care decision of that date, appeared not to have been received by Mr Bigden.
On 18 August 2022, the Agency sent a letter to Mr Bigden notifying him of its decision to accept Ms Aleshire’s application to extend the child support assessment for [Child 1] beyond his 18th birthday on 12 June 2022 to 9 November 2022 as he would still be in full-time secondary education (see page 55 of Exhibit 1).
On 8 September 2022, the Agency telephoned Mr Bigden to inform him of a correction it intended making to the change in care decision it had made on 28 April 2022 regarding [Child 1] (see Agency file note at page 69 of Exhibit 1).
This file note records the Agency notifying Mr Bigden that, because it had recorded the date of change in care for [Child 1] as 19 November 2019, a date prior to the date of registration of the child support assessment on 16 March 2022, it had not applied the new change in care percentages determined in its decision of 28 April 2022. The Agency also informed Mr Bigden that his notification on 28 April 2022 should not have been recorded and processed as a change in care notification, and that alternatively Mr Bigden should have been advised to lodge an objection to the Agency’s decision on 8 April 2022 to accept Ms Aleshire’s application for a child support assessment for [Child 1] on 16 March 2022, reflecting the care percentages at 100% to Ms Aleshire and 0% to Mr Bigden.
The Agency then proceeded to implement its objection process, recording Mr Bigden’s telephone notification on 28 April 2022 as his objection to the Agency decision of 8 April 2022, and recording his objection as having been lodged on 28 April 2022 (see Agency file note at page 71 of Exhibit 1).
The Tribunal finds that on 28 April 2022, Mr Bigden notified the Agency of his objection to its decision of 8 April 2022 to accept Ms Aleshire’s application for administrative assessment of child support, reflecting care percentages of 100% to Ms Aleshire and 0% to Mr Bigden, and that his objection was lodged within 28 days of the Agency’s decision of 8 April 2022.
At the hearing, Mr Bigden gave evidence that following the parents’ separation on 14 November 2019, Mr Bigden remained in occupation of the former matrimonial home until settlement of the sale of the property on 16 March 2022. He gave evidence that Ms Aleshire had moved out of the home to premises some short distance from the former family home.
He gave evidence that since separation, the parents had followed a shared care pattern with respect to the children, [Child 1] and his elder sister, Isabelle, allowing them to decide freely which parent they chose to stay with from time to time, and that the children moved freely between the respective parents’ houses, in both of which they maintained clothing and other personal items.
Mr Bigden gave evidence that the children were living with him at the former matrimonial home and at Ms Aleshire’s nearby premises on a rotational basis until the sale of the former matrimonial home was settled on 16 March 2022, following which he said he moved for a short period of approximately 4 weeks to his parents’ home in the southern suburbs of Melbourne while he arranged his own rental accommodation. During this period, the children went to stay with Ms Aleshire.
He said he moved into his new rental premises in April 2022 and the shared rotational care pattern resumed with the children moving freely between the respective parents’ houses.
Ms Aleshire acknowledged and agreed that since separation in November 2019 the care arrangements for the children have been conducted on a shared care basis with the children being encouraged and allowed to move freely between the parents’ houses.
She gave evidence of her suffering a serious motor vehicle accident in the latter part of 2021 which left her incapacitated and from November 2021, the children had stayed with her to assist in her rehabilitation while the former matrimonial home was being prepared for sale. She also acknowledged that the children had moved in with her following settlement of the sale of the home in March 2022 when Mr Bigden went to stay with his parents until he moved to his new rental premises in April 2022, and that since that date, the rotational shared care arrangement has resumed.
She acknowledged that it was at this point that she decided to apply for an administrative assessment of child support and in the course of that process, she informed the Agency of the 50% shared care arrangements being followed by the parents up until the date of settlement of the sale of the former matrimonial home and Mr Bigden’s move to his parents’ home as referred to above. She did not challenge Mr Bigden’s evidence that following his securing of his new rental premises in April 2022, the rotational shared care pattern of care had resumed, and acknowledged that her information to the Agency that the children were in her 100% care at the time of her application in March 2022 was a response to the Agency’s application question as to the care actually taking place at that point in time.
Mr Bigden gave evidence that the children went to stay with Ms Aleshire in May 2022 when Mr Bigden tested positive to COVID-19 and was required to isolate himself, and again when he travelled [overseas] in July 2022 for three weeks, both of which were temporary arrangements not intended to be care changes of a permanent nature.
Ms Aleshire acknowledged and agreed at the hearing that she did not oppose the Tribunal’s proposed finding that there had been no permanent change in the care pattern on 16 March 2022 when the children came to stay with her following the sale of the former matrimonial home on 16 March 2022, and that the shared pattern of care for [Child 1] in place prior to that date had resumed following Mr Bigden’s move to his new rental premises in April 2022.
The Tribunal finds that the evidence on balance is that the pattern of care being followed by the parents prior to 16 March 2022 was 50% shared care, and that the period from 16 March 2022 to April 2022 when Mr Bigden went to stay with his parents (following the settlement of the sale of the former matrimonial home) and the children went to stay with Ms Aleshire was not intended to be of a permanent nature, as was the case when the children went to stay with her during her convalescence following her motor vehicle accident in November 2021.
The Tribunal finds that there was no permanent change in the 50% shared care pattern on 16 March 2022 and that it is appropriate that the care period should commence from the start of the child support case, being 16 March 2022.
As the Tribunal has reached a different conclusion to the decision reached by the objections officer in the decision under review, the Tribunal sets aside that decision and decides that care percentages of 50% shared care to each of Ms Aleshire and Mr Bigden be recorded for [Child 1] from 16 March 2022 effective from the start of the administrative assessment being 16 March 2022.

DECISION

[2023] AATA 1641

5 May 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction