Bonsor and Child Support Registrar (Child support)

[2021] AATA 2428

Bonsor and Child Support Registrar (Child support) [2021] AATA 2428 (16 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC020960

APPLICANT:  Mr Bonsor

OTHER PARTIES:  Child Support Registrar 

TRIBUNAL:Member R King

DECISION DATE:  16 June 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that, from 1 July 2019, the care of [Child 1] and [Child 2] was 66% with Mr Bonsor and 34% with [Ms A].

The date of effect of the tribunal’s decision is 19 August 2020

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review set aside and substituted – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist

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

BACKGROUND

1. Mr Bonsor and [Ms A] are the parents of [Child 1] (age 15 years) and [Child 2] (age 11 years).  This application concerns the percentage of care that each parent was providing to the two children from 1 July 2019.

2. Under an administrative assessment, the Child Support Agency (CSA) determined that Mr Bonsor had 90% of the care of both children and [Ms A] had 10% of their care from 1 April 2019. 

3. On 18 March 2020, [Ms A] contacted the CSA and advised that there had been a change of care on 1 July 2019 such that from that date she had care of both children during the week and Mr Bonsor had their care every second weekend for two nights.  The CSA was unable to speak with Mr Bonsor and accepted the information provided by [Ms A].  On 6 April 2020, the CSA decided to record the care percentages as 86% with [Ms A] and 14% with Mr Bonsor from 1 July 2019. 

4. On 19 August 2020 (more than 28 days after receiving the original decision) Mr Bonsor lodged an objection, stating that he had been providing most of the care of both children until July 2020, from whence [Child 1] was mostly in her mother’s care. 

5. On 5 February 2021, an objections officer disallowed Mr Bonsor’s objection.  The objections officer was unable to speak with [Ms A] but accepted a statement that she had made in March 2020 to the effect that Mr Bonsor had the majority of the care of the children for one term only, commencing in April 2019. 

6. On 5 March 2021 (within 28 days after receiving the objection decision), Mr Bonsor applied to the tribunal for review of the care percentage decision. 

7. [Ms A] did not apply to be added as a party to Mr Bonsor’s application. 

8. The tribunal conducted a hearing on 19 May 2021.  Mr Bonsor participated by conference telephone and provided sworn evidence. 

9. The tribunal deferred a decision to allow Mr Bonsor additional time to provide further evidence substantiating his care of [Child 1] and [Child 2].  The tribunal reconvened to discuss the additional evidence with Mr Bonsor.

CONSIDERATION

1. Mr Bonsor told the tribunal that the children were both living with their mother and spending weekends with him until [Ms A] had what he described as a “breakdown” in April or May 2019.  Mr Bonsor said that [Ms A] asked him to take over the care of the children because she was very stressed and was struggling to cope.  He said that he was happy to do this as he had always wanted more care of the children. 

2. He said that he and [Ms A] lived in adjacent coastal towns in northern NSW at the time so there was no interruption to the children’s schooling and it was easy to exchange them on weekends.  He said there was no change to the arrangement in July 2019.  The children continued to stay with him during the week and typically spend a couple of nights on the weekend with their mother.  Care during the holidays was more or less equally shared, although the children stayed with [Ms A] for four of the six weeks of the 2019–20 summer holidays.  Mr Bonsor told the tribunal that the arrangements were informal and reasonably flexible but that was the typical pattern.

3. Mr Bonsor said that this arrangement continued after he moved to [Town 1] (in the hinterland) in February 2020.  Prior to July 2020, he home-schooled the children because of the COVID-19 pandemic.  In July 2020, [Child 1] decided that she wanted to return to live with her mother and enrolled in the [Town 2] [School].  [Child 2] wanted to stay with his father and enrolled at the local [school 1].  He said that [Child 1] has recently returned to live with him and [Child 2]. 

4. Mr Bonsor told the tribunal that he believed he could locate communications between himself and [Ms A] that would confirm these arrangements. 

5. The tribunal asked Mr Bonsor why he had delayed objecting to the decision to record the care of [Child 1] and [Child 2] as 86% with [Ms A] and 14% with him.  Mr Bonsor said that he was characteristically inattentive to communications from the CSA and from Centrelink (something he has been trying to correct).  He said that it was not until his parenting payments and family tax benefit stopped and a debt was raised for amounts that had been previously paid to him that he realised he needed to act.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the CSA for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA initially determined that Mr Bonsor had 90% of the care of both children

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, and that a change in the care percentage would have an effect on the cost percentage, the original care percentage determination is revoked. Under section 54G of the Act, a care percentage determination must also be revoked if the effect of a change of care is such that a parent has less than 14% of the care. If the change is insufficient to require a change to the cost percentage, the original determination may be revoked under section 54H of the Act but this is not mandatory because the change in care percentage does not affect the overall child support assessment. When a care percentage determination is revoked under section 54F, 54G or 54H but the revocation is not in the context of a terminating event, a new care percentage is then determined under section 50 of the Act that does correspond with the actual percentages of care provided by each parent.

4. The original care determination was revoked when [Ms A] advised that the children had been primarily in her care since1 July 2019 and the higher level of care provided by Mr Bonsor was for a single term only.  A new care determination was then made that [Ms A] had 86% of the care of both children and Mr Bonsor had 14% of their care from 1 July 2019.

5. The tribunal must first consider whether there was a change in care arrangements on or around 1 July 2019 and if so, whether it was such as to have implications for the cost percentages. 

6. [Ms A] told the CSA that Mr Bonsor had most of the care from April 2019.  This is consistent with Mr Bonsor’s evidence that [Ms A] asked him to look after the children in April or May 2019 because she was having what he described as a breakdown and was not coping with managing their care.  [Ms A] then told the CSA in March 2020 that she had resumed primary care of the children in July and that it was only ever intended that they would live with Mr Bonsor for one school term.

7. Mr Bonsor disputes that [Ms A] resumed primary care.  His position is that there was some fluidity to the arrangements from July 2019 but that he typically had the children during the school week and for half the school holidays and that Ms Taverner had them most weekends and half the school holidays.

8. Both accounts indicate that there was a change of care with implications for cost percentage because it is not in dispute that [Ms A] had at least regular care (14%) from 1 July 2019. This means that, as she had previously been recorded as having 10% of the care, there was a change in her cost percentage and the existing care determination must be revoked under section 54F of the Act. As [Ms A] was the person with increased care and she notified the change of care more than 28 days after the change of care date, under subsection 54F(3), the revocation has effect for her on the day before her notification of a change of care and the revocation has effect for Mr Bonsor on the day before the care changed.

9. Having revoked the original care determination, the tribunal must make a new care determination. As the evidence indicates that both parents had a pattern of care for both children, the new care determination is made under section 50 of the Act.

10. Under section 50, the tribunal must first determine what is the relevant care period in this matter. A care period will usually commence at the time a change of care is notified or an earlier date if there is evidence that there was an earlier change of care. A care period has to be sufficient in duration to establish a pattern of care. Twelve months is frequently treated as the default duration for the care period, but the duration can be shorter or longer, according to the duration of care required to establish a pattern of care.

11. In this case, Mr Bonsor’s evidence suggests that the care arrangements were somewhat fluid and variable and were not subject to any written agreement.  However, his evidence indicates that the pattern was, at least in part, set by the school holidays.  In such circumstances, the tribunal is of the view that a period of 12 months is desirable to establish a pattern of care

12. Having established the appropriate care period, the tribunal must determine the percentage of care that Mr Bonsor and [Ms A] had or were likely to have for [Child 1] and [Child 2] during this period. Under section 54A of the Act this is usually based on the number of nights the children spent with each parent. If the evidence suggests that there were clear differences in the pattern of care for each child, this must be reflected in the care percentages.

13. [Ms A] did not apply to become a party to Mr Bonsor’s application and did not provide evidence about the care she provided.  According to the objections officer, on 1 May 2019, Ms Taverner (and Mr Bonsor) advised Centrelink that she would be providing approximately 65 nights of care over the course of a year but that the care would be flexible and irregular, depending on when she can find time.  She subsequently (on 21 May 2020) told Centrelink that this was a temporary arrangement and that, overall, she would be providing approximately 50% of the care.  Considerably later (March 2020) she told the CSA that, from 1 July 2019, the children had been living with her during the week and Mr Bonsor had them every second weekend.

14. During the hearing Mr Bonsor said that, from 1 July 2019 the children continued to live with him during the week but spent time with [Ms A] most weekends and approximately half of the school holidays. 

15. He subsequently provided an unsworn recent third-party statement from [Mr A] who advised that he had known Mr Bonsor to be providing most of the care of both children while he was living in [Town 3] until January 2020 and majority care of one or both children until now (June 2021).  Mr Bonsor also provided a copy of a statement from the principal of [school 1] stating that [Child 2] had been enrolled there since July 2020 and a statement, dated 31 May 2021, from the principal of [Town 1] [school 2] to the effect that [Child 1] is currently enrolled with the school.

16. Mr Bonsor provided records of text message communication with [Ms A] between July 2019 and June 2020.  These messages indicate a flexible and variable pattern of care but, after discussing them in some detail with Mr Bonsor, the tribunal is satisfied that they establish that both children were mostly living with him during the week and that they spent most but not all weekends with [Ms A] and approximately half the school holidays with [Ms A].  There appears to be only minor variability in the pattern of care for [Child 1] and [Child 2] prior to July 2020, when Mr Bonsor says [Child 1] commenced living with her mother for a period of more than six months before returning to Mr Bonsor’s primary care.

17. Overall, the additional evidence is consistent with the sworn evidence provided by Mr Bonsor and enhances its credibility.  The tribunal is of the view that Mr Bonsor’s account of the care arrangements for [Child 1] and [Child 2] during the relevant care period is preferable to the somewhat inconsistent statements made to Centrelink and the CSA by [Ms A].  Mr Bonsor’s evidence is consistent with a finding that he had the care of both children for at least 50 nights each school term (200 nights in a year) and half the school holidays (42 nights in a year).  This means that he had the care of both children for 242 of 366 nights (2020 being a leap year), which is 66% of the care.  The tribunal is satisfied that [Ms A] had the remaining (34%) of the care.

18. The tribunal accordingly determines, under section 50 of the Act, that from 1 July 2019, Mr Bonsor had 66% of the care of [Child 1] and [Child 2] and [Ms A] had 34% of their care.

19. The tribunal must also give consideration to the date of effect of this new care percentage determination. Mr Bonsor did not object to the change of care decision made on 6 April 2020 until more than 28 days had elapsed. Under section 87AA of the Child Support (Registration and Collection) Act 1988, unless there were special circumstances that prevented Mr Bonsor from lodging an objection within 28 days, the date of effect of a favourable decision is the date when the objection was lodged.

20. The tribunal is not satisfied that there were special circumstances that prevented Mr Bonsor lodging a timely objection.  His own evidence suggests that it was due to his habitual inattention to what he described as “paperwork” and the fact that the decision had no practical effect until later.  Neither reason, singly or in combination amounts to special circumstances.

21. It follows that the date of effect of the tribunal’s decision is 19 August 2020.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that, from 1 July 2019, the care of [Child 1] and [Child 2] was 66% with Mr Bonsor and 34% with [Ms A].

The date of effect of the tribunal’s decision is 19 August 2020.