Bimson and Bimson (Child support)

[2021] AATA 4795

Bimson and Bimson (Child support) [2021] AATA 4795 (12 October 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021363

APPLICANT:  Mr Bimson

OTHER PARTIES:  Child Support Registrar

Ms Bimson

TRIBUNAL:  Member P Jensen

DECISION DATE:  12 October 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – interim period applied – end date of interim period – 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. Mr Bimson and Ms Bimson are the parents of [Child 1] and [Child 2]. A child support case was registered in 2016 with what is commonly called the Child Support Agency or CSA. From April 2018, Mr Bimson was recorded as providing 28% care and Ms Bimson was recorded as providing 72% care for the children.

2. On 17 August 2020, Ms Bimson informed the CSA of a change in care from 13 July 2020. On 24 August 2020 the CSA decided to record Mr Bimson as providing 0% care with effect from 13 July 2020 and Ms Bimson as providing 100% care with effect from 17 August 2020.

3. On 10 November 2020, Mr Bimson belatedly objected to the care decision. On 30 March 2021 an objections officer made two decisions:

   ·      a decision to record Mr Bimson as providing 28% care and Ms Bimson as providing 72% care from 13 July 2020 to 10 January 2021, and to record Mr Bimson as providing 0% care and Mr Bimson as providing 100% care thereafter; and

   · a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, the practical effect of which was that the objections officer’s care decision had retrospective effect notwithstanding Mr Bimson’s delay in objecting to the original decision.

4. Mr Bimson promptly applied to the Tribunal for further review. I heard the matter on 12 October 2021. Mr Bimson and Ms Bimson gave sworn evidence by conference phone. Mr Bimson confirmed that he was only seeking review of the objections officer’s first decision, i.e. the care decision.

5. There is no dispute that Ms Bimson started providing full-time care from 13 July 2020. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). They usual reflect the parents’ pattern of actual care. They usually involve the revocation of the existing care determinations pursuant to sections 54F or 54G of the Act and the making of the new care determinations pursuant to section 49 or 50 of the Act. In this case, I found that the requirements of section 54F were satisfied, but nothing turns on that issue. Neither parent notified the CSA of the change in care within 28 days of its occurrence. Subject to section 51 of the Act, Mr Bimson would be recorded as providing 0% care from when the change in care occurred and Ms Bimson would be recorded as providing 100% care from when the change in care was belatedly reported: sections 49, 50 and 54B of the Act.

6. Section 51 of the Act provides for an interim determination during which each parent is recorded as providing the pattern of care prescribed by a formal care arrangement, e.g. court orders, rather than the pattern of care they were actually providing. During the hearing I identified the requirements of section 51 and I heard evidence from both parents in respect of those requirements. There is no dispute that those requirements were satisfied in this case and that the “interim period” of the determination started when the change in care occurred, i.e. 13 July 2020, and it ended 26 weeks later, i.e. 10 January 2021: see section 53A of the Act and, in particular, Item 2. It was for those reasons that I affirmed the decision under review. I gave oral reasons for my decision.

7. Mr Bimson respectfully but firmly told me that I was wrong. He said I should have made a second interim determination with effect from 11 January 2021. He referred me to a CSA file note on page 254 of the hearing papers which included the following:

   * The reason for attempting to call [Ms Bimson]:

   Call attempt to [Ms Bimson] - No answer, left message to return call.

   Multiple issues to discuss:

   …

   Objections [officer] made an interim decision from 13/07/2020 until 10/01/2021 and then made an actual care decision to apply 100% care to [Ms Bimson] from 11/01/21 - the note on the day the care change was lodged[1] states “[Mr Bimson] requesting is [sic] to have another interim care order to be re-instated.” As [Mr Bimson] is reporting an earlier [date of event] to the previous decision that was made by objections this care change will be deleted and if [Mr Bimson] wishes to have the last date of decision reviewed will be required to go to AAT.

   [1]This might be a reference to documentation provided by Mr Bimson on 15 June 2021, but it is not clear: page 246 of the hearing papers.

8. It was unfortunate that Mr Bimson had not raised that issue earlier. Nevertheless, his frustration was understandable and I considered it appropriate to provide written reasons for my formal decision and, as an aside, to also explain why the issue of a later interim period did not form part of the decision under review.

9. Section 51 of the Act relevantly requires the original decision-maker to make two percentage of care determinations in respect of each parent. The first percentage of care determinations correspond with the parents’ prescribed pattern of care pursuant to a formal care arrangement such as court orders: subsection 51(3) of the Act. They apply during the interim period: paragraph 54C(2)(a) of the Act. The second percentage of care determinations correspond with the parents’ pattern of actual care: subsection 51(4). They apply after the interim period: paragraph 54C(2)(b). The original decision in this case was made on 24 August 2020, and on review, the objections officer and in turn this Tribunal is required to “stand in the shoes” of the original decision‑maker and make the correct or preferable decision in respect of the change in care that was reported on 17 August 2020. As I explained during the hearing, I was only reviewing that one decision; I was not conducting a general review of the child support case.

10. Subsection 53A(2) of the Act states:

    Beginning of later interim periods

    (2)If: 

    (a)an interim period for the determination ends under item 2, 4 or 5 of the table in subsection (1) before the end of the maximum interim period for the determination; and 

    (b)the person referred to in paragraph 51(1)(d) who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with; and 

(c)the person (the second carer) who has increased care of the child ceases to take reasonable action to participate in family dispute resolution before the end of the maximum interim period; 

then a further interim period for the determination begins on the day the second carer ceases to take such reasonable action. 

1. A further interim period cannot commence until the preceding interim period has ended: paragraph 53A(2)(a). It follows that the question whether a further interim period has commenced is beyond the scope of the original decision-maker’s decision, both at first instance and on review.

2. At a more practical level, in this case the maximum interim period began when the change in care occurred and it ended 26 weeks later, i.e. 10 January 2021: see the definition of “maximum interim period” in section 5 of the Act. The “interim period for the determination”, as determined by the objections officer, also ended on 10 January 2021. It therefore appears that the interim period for the determination did not end before the end of the maximum interim period, but again, the issue does not arise under the current application for review.

DECISION

The decision under review is affirmed.