Bonniwell and Georgeson (Child support)

[2022] AATA 3999

Bonniwell and Georgeson (Child support) [2022] AATA 3999 (21 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023692

APPLICANT:  Ms Bonniwell

OTHER PARTIES:  Child Support Registrar

Mr Georgeson

TRIBUNAL:Member F Staden

DECISION DATE:  21 September 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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

BACKGROUND

1. Ms Bonniwell and Mr Georgeson are the separated parents of one child, [Child 1], born 1996. There was a child support assessment for this case from 16 August 2005 to 9 December 2014.

2. Under 20 November 2007 court orders, care of [Child 1] was to be shared equally between the parents.

3. From 1 July 2008 to 29 January 2010, Services Australia – Child Support (Child Support) recorded [Child 1] as being in the equally shared care of the parents.

4. From 30 January 2010 to 20 December 2010, Mr Georgeson’s care percentage for [Child 1] was recorded as 99% and that of Ms Bonniwell as 1%.

5. [Child 1] commenced [School 1] as a boarder from the beginning of the 2011 school year.

6. Following a 21 December 2010 notification by Ms Bonniwell, on 1 February 2011 Child Support recorded [Child 1] as being in the equally shared care of the parents from 21 December 2010. Mr Georgeson objected to this decision on 7 February 2011 and on 15 April 2011 an objections officer determined that Ms Bonniwell’s care percentage for [Child 1] was 5% and that of Mr Georgeson was 95%.

7. On 28 September 2012, Ms Bonniwell informed Child Support that she was equally sharing [Child 1]’s care with Mr Georgeson. When contacted by Child Support, Mr Georgeson observed that care arrangements had not changed since the 15 April 2011 objections officer decision which had considered [Child 1]’s attendance at boarding school.

8. Following several unsuccessful attempts to contact Ms Bonniwell, on 7 December 2012, Child Support decided to reject Ms Bonniwell’s application to change the care percentages used in the assessment on the basis that there had been no change to [Child 1]’s care arrangements since the 15 April 2011 decision.

9. Ms Bonniwell lodged a verbal objection to the 7 December 2012 rejection decision on 30 December 2021 and a written objection with additional evidence on 21 February 2022.

10. On 24 March 2022, an objections officer disallowed Ms Bonniwell’s objection.

11. On 14 April 2022, Ms Bonniwell applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.

12. A hearing was held on 21 September 2022. Ms Bonniwell gave sworn evidence in person and Mr Georgeson gave sworn evidence by telephone. The tribunal also had before it documents provided by Child Support (202 pages), a copy of which was sent to the parents before the hearing. Prior to the hearing, both parents provided additional material (Ms Bonniwell – pages A1 to A132 and Mr Georgeson pages B1 to B6), copies of which were provided to all parties.

13. Relevant evidence before the tribunal is referred to in the consideration below.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). The tribunal also had regard to the Child Support Guide, Child Support’s online technical and policy guide to the administration of the child support scheme.

2. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent or non-parent carer in relation to each child.

3. Child Support decides care percentages in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide a care percentage for each parent or non-parent carer when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require Child Support, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Centrelink are informed otherwise.

5. The issues which arise in this case are:

   ·    Should the existing care percentages be revoked; and if so

   ·    Should new care percentage determinations be made and, if so, from when; and

   ·    What is the date of effect of this decision?

CONSIDERATION

Issue 1: Should the existing care percentages be revoked?

1. Court orders in relation to [Child 1]’s care had not been followed for at least a year before [Child 1] commenced boarding school in 2011 and there is no evidence that the parents then agreed to return to following those orders. The tribunal therefore found that no written care arrangement for [Child 1] was in operation from at least January 2010.

2. Ms Bonniwell acknowledged that the care arrangements in place when she applied for a change to the care percentages for [Child 1] on 28 September 2012 were essentially the same as when she made her previous such application on 21 December 2010. In the absence of a care change in the intervening period, there is no basis on which to revoke the care percentages under review. The tribunal therefore affirmed the decision under review.

Other

1. No time limit applies to an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal of a Child Support objections officer decision about the percentage of care for a child. It is therefore open to Ms Bonniwell to request review of the 15 April 2011 objections officer decision in this case. However, under subsection 95N(1) of the Registration and Collection Act, if a person applies to the tribunal for review of an objections officer decision about the care percentages used in a child support assessment more than 28 days after notice of that decision is given, the date of effect of the tribunal’s resulting decision is the date of the application to the tribunal.

2. Under subsection 95N(2) of the Registration and Collection Act, the tribunal can decide to extend the period in which an application to the tribunal can be made, if the tribunal is satisfied that there were special circumstances which prevented the person from lodging their application for review within 28 days. Special circumstances are not defined in the Registration and Collection Act. The Child Support Guide at 4.1.8 Care Percentage Decisions gives some guidance:

   In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date.

3. A 28 September 2012 Child Support record states that when Ms Bonniwell notified of a care change on that date, she was told about her Social Security Appeals Tribunal (this tribunal as it then was) review rights in relation to the 15 April 2011 objections officer decision. Other records indicate that Ms Bonniwell may not have been properly informed of those review rights prior to that date. A key issue in any further review would therefore be why Ms Bonniwell did not exercise her Social Security Appeals Tribunal review rights in relation to the 15 April 2011 objections officer decision once having been informed of that option.

DECISION

The decision under review is affirmed.