Chisenhall and Bardsley (Child support)

[2021] AATA 4529

Chisenhall and Bardsley (Child support) [2021] AATA 4529 (15 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021200

APPLICANT:  Ms Chisenhall

OTHER PARTIES:  Child Support Registrar

Mr Bardsley

TRIBUNAL:Member S De Bono

DECISION DATE:  15 September 2021

DECISION:

The decision under review is set aside, and substituted with a decision as follows:

• Ms Chisenhall had 85% care of [Child 1] from 28 August 2020; and

• Mr Bardsley had 15% care of [Child 1] from 20 July 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

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. Ms Chisenhall and Mr Bardsley are the separated parents of [Child 1]. They registered a child support assessment for [Child 1] on 25 January 2018. On 14 July 2020 Services Australia – Child Support (the Agency) made a new care determination in respect of [Child 1] and determined each parent had 50% care of [Child 1] from 1 June 2020.[1]

   [1] Page 115 of the hearing papers.

2. On 28 August 2020 Ms Chisenhall notified the Agency that she had 85% care of [Child 1] and Mr Bardsley had 15% care. On 6 October 2020 an officer from the Agency determined Ms Chisenhall has 85% care of [Child 1] and Mr Bardsley has 15% care of [Child 1] which applied from 20 July 2020 for Mr Bardsley and 28 August 2020 for Ms Chisenhall.

3. On 7 October 2020 Mr Bardsley lodged an objection to this decision.[2]  On 4 March 2021 the objections officer made a decision to allow Mr Bardsley’s objection and changed the decision. The objections officer determined that the care attributed to Mr Bardsley for [Child 1] was 40% and 60% to Ms Chisenhall which applied from 20 July 2020 for Mr Bardsley and 28 August 2020 for Ms Chisenhall.

   [2] Page 184 of the hearing papers.

4. On 9 April 2021 Ms Chisenhall applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision.  On 30 July 2021 Ms Chisenhall and Mr Bardsley gave sworn evidence to the tribunal via conference telephone. The tribunal had before it a bundle of documents (347 pages – referred to as the hearing papers) which had been sent to Ms Chisenhall and Mr Bardsley prior to the hearing. The tribunal deferred its decision to obtain further information from Ms Chisenhall and Mr Bardsley. Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

ISSUES

1. The issues which arise in this case are:

   ·Should the existing care percentages of 50% each to Ms Chisenhall and Mr Bardsley be revoked?

   ·If so, from what date should the existing care percentages be revoked?

   ·What is the correct level of care attributed to the parents? And

   ·What is the effective date of the new care determinations?

LAW AND CONSIDERATION

1. The law relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

2. The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

3. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). The Agency’s policy in this regard, as set out in chapter 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the actual care of a child began or changed. The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

4. Sections 49 and 50 of the Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for [Child 1], before a revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.

5. 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 of the Act reflect the idea that the Agency makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.

6. The tribunal’s task on review is to stand in the shoes of the original decision maker.  In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Agency.  It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to the Agency up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Agency. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Agency – so that a new primary care percentage decision can be considered and made if appropriate. 

7. The term ‘pattern of care’ is not defined in the legislation. The tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to the Agency.

Issue 1 – Should the existing care percentage of 50% to Ms Chisenhall and 50% care to Mr Bardsley be revoked?

1. Both Ms Chisenhall and Mr Bardsley were not sure of the date [Child 1] was admitted to hospital but accepted the date shown in the letter from [Doctor A] was correct and [Child 1] was admitted to hospital on 7 May 2020.[3]

   [3] Page 156 of the hearing papers.

2. Ms Chisenhall said she notified the Agency the change of care for [Child 1] had changed from 50/50 each once Mr Bardsley was diagnosed and undergoing treatment for cancer because during this period he was not able to visit [Child 1] in hospital and he was not able to participate in the care and planning for [Child 1] while she was an inpatient. Ms Chisenhall said Mr Bardsley had been unwell for a period of some months before his diagnosis. Ms Chisenhall said she spoke with Mr Bardsley about her intention to change the care percentages in respect of [Child 1] because of his inability to visit [Child 1] and to participate in meetings about her care during this this time.

3. Mr Bardsley said he disagreed his care for [Child 1] had reduced while he was unwell and then subsequently undergoing treatment for his cancer. He said he was still calling [Child 1] regularly and was called by the hospital to assist in de-escalating her behaviour while he was in hospital himself. He said while he was not able to attend meetings he was still speaking with [Child 1] and [communicating with] her on a regular basis. Mr Bardsley said this contact continued while he was in hospital and there may have been a period of about 2 weeks when he wasn’t able to speak with [Child 1] or receive calls from the hospital because he was too unwell from the side effects of his cancer treatment. Mr Bardsley said this was for the period of the July 2020 inpatient admission.

4. Ms Chisenhall said Mr Bardsley had not visited [Child 1] for most of June and she said she had to encourage him to visit [Child 1] to tell her about his cancer diagnosis. She said Mr Bardsley did not visit [Child 1] in July and did not visit while he was undergoing treatment for his cancer.

5. It is evident to the tribunal that [Child 1] was not physically in the day-to-day care of either parent from 7 May 2020. The tribunal makes the following findings of fact:

   ·[Child 1] was admitted to [Health Service 1] on 7 May 2020 as an inpatient.

   ·Neither parent could remember how long [Child 1] remained in hospital for this particular admission but accepted it was months.

   ·Evidence shows [Child 1] was still an inpatient at [Health Service 1] on 9 September 2020.

   ·Neither parent was able to tell the tribunal what the discharge date was for [Child 1] following this admission, as [Child 1] had other admissions after this admission, the admission dates had blended.

   ·It is unclear to the tribunal who [Child 1] was living with upon her discharge from hospital after her inpatient stay of 7 May 2020 but it seems it was for a short period.

   ·[Child 1] left both parents’ care at some stage in April 2021 and is now being cared for by [a named agency].

6. The Act does not define the care of a child. The Guide at 2.2.1 provides factors to consider in coming to a conclusion about who has on-going daily care of a child:

   •To what extent the person has control of the child, including having overall responsibility for the child and making: major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and arrangements for others to meet the needs of the child (delegated care).

   •To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

   •To what extent the person pays for the costs of meeting the needs of the child.

   •         To what extent the person otherwise provides financial support for the child.

   •To what extent the child provides for his or her own needs or has those needs met from another source.

   •To what extent the child is financially independent or financially supported from another source.

7. In the situation where an older child might be living away from home, financial support may be an indicator that the person is continuing to provide for the child. These costs may include daily costs such as food, accommodation, transport and/or longer terms costs such as school fees, airfares home for the holidays, clothing, health and dental care. The Guide further provides:

   While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

8. In working out the percentage of care based on the actual care for a child the Guide provides:

   Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time. For example, a person can provide care for a child who is at boarding school, in hospital or in separate accommodation. However, a person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent or a schoolteacher) does not provide care.

   Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves. The Registrar will give weight to statements from both parents and any non-parent carers.

9. Mr Bardsley provided a list of admission dates for his hospitalisations. Mr Bardsley was an inpatient on the following dates:  [specified dates in] July 2020, [specified dates in] August 2020, [specified dates from] August to [September] 2020 and [specified dates in] September 2020. He had day visits throughout July though to December 2020 for either chemotherapy, various tests and hospital reviews.[4]

   [4] Page 194 of the hearing papers.

10. Ms Chisenhall said during the period that Mr Bardsley was unwell which commenced in her view in the months before Mr Bardsley was diagnosed with cancer and continued until after Christmas of 2020, she said Mr Bardsley was limited in the support he could provide to [Child 1]. While Ms Chisenhall did not dispute there were times that Mr Bardsley was providing phone support to [Child 1] and he may have been speaking with her regularly, he was not able to visit her nor was he able to participate in meetings in relation to her care during this period, and he was not able to assist with the planning and paperwork in relation to applying for NDIS for [Child 1].

11. Ms Chisenhall said she was involved in all the case meetings in relation to [Child 1] at the hospital, as well as applying and completing the paperwork for NDIS which she said took hours. Ms Chisenhall said she visited [Child 1] 3–4 times a week as well as attending case planning meetings for [Child 1] which would be from one to 2 hours on a weekly basis during her admission. She was also providing food (in addition to the food provided to the hospital), clothing and other necessitates that [Child 1] required.

12. Mr Bardsley disagreed with some of the evidence Ms Chisenhall provided, he said he was visiting [Child 1] in hospital up until the end of June when he had to stop driving. Once he commenced his cancer treatment he was unable to visit [Child 1], but said he remained involved in her care (with the exception of 2 weeks) when he was too unwell to contact [Child 1].

13. The letter from [Doctor A], [title specified] states from 20 July 2020 after Mr Bardsley became unwell that it has been Ms Chisenhall who has been involved in meetings, has been visiting [Child 1] and has been the primary point of contact for [Child 1].[5] [Doctor A] writes that Mr Bardsley intends to be involved in [Child 1’s] care when he is well enough. [Doctor B] senior psychologist also confirmed that Mr Bardsley continued to have contact with [Child 1] via phone calls and [other communication] while he was unwell.[6]

    [5] Page 156 of the hearing papers.

    [6] Page 191 of the hearing papers.

14. Evidence before the tribunal shows that Ms Chisenhall called the Agency on 14 July 2020 to inform that the change in the pattern of care had occurred but she could not provide updated care percentages[7]. On 28 August 2020 Ms Chisenhall called the Agency to inform that the new care percentage decision for the care of [Child 1] should be 85% to her and 15% to Mr Bardsley from 20 July 2020.

    [7] Page 141 of the hearing papers.

15. The tribunal carefully weighed the evidence from Ms Chisenhall and Mr Bardsley, as well as the material evidence contained in the hearing papers and finds on balance from mid July 2020 Mr Bardsley was unable to participate in the day-to-day care of [Child 1] due to his investigations, diagnosis and treatment of cancer from mid July 2020 through to early December 2020.

16. It is evident to the tribunal that while Mr Bardsley was being investigated for pain prior to his cancer diagnosis in August 2020 through to his ongoing treatment for cancer, that he was having regular contact with [Child 1]. But the tribunal also accepts Ms Chisenhall’s evidence which is supported by letters from [Doctor A] and [Doctor B] that Mr Bardsley was unable to participate in the hospital meetings for [Child 1] during this time nor was he able to contribute to her care planning during this time or assist with any paperwork due to his own medical issues at this time.

17. The responsibility in relation to the day to day care for [Child 1] remained with Ms Chisenhall. Ms Chisenhall was visiting [Child 1] 3–4 times a week, she was participating in the case conferences for [Child 1] and she was assisting with preparing for [Child 1’s] eventual discharge as well as being the primary point of contact for the hospital during this period. This finding does not diminish the role Mr Bardsley had in providing support to [Child 1] while he was unable to visit her and to participate in her care during this time. On balance, taking into account the evidence the tribunal is of the view that the existing care percentages of 50% to Mr Bardsley and 50% care to Ms Chisenhall should be revoked.

Issue 2 – From what date should the existing care percentages be revoked?

1. Subsection 54F(1) of the Act provides that a care determination must be revoked if there is a change to the responsible person’s cost percentage:

   (1) The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:

   (a) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

   (b) the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

   (c) section 54G does not apply; and

   (d) subsection (2) applies in relation to the individual.

   Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

2. Subsection 54F(3) provides that the revocation of the existing care determination, provided the change of care was notified within 28 days of this change occurring, applies from the day before the change of care day. Ms Chisenhall notified the Agency firstly on 14 July 2020 that the care of [Child 1] had changed but she was unable to provide the updated care percentage information to the Agency at this time.[8] Ms Chisenhall called the Agency on 28 August 2020 and informed the Agency that the new care percentage for [Child 1] was 85% to her and 15% Mr Bardsley which she said applied from 20 July 2020.

   [8] Page 114 of the hearing papers.

3. The tribunal is satisfied that the percentage of care attributed to Ms Chisenhall and Mr Bardsley changed on 20 July 2020, however, Ms Chisenhall did not notify of the actual percentage of the change of care until 28 August 2020. As this was more than 28 days after the initial notification the tribunal is satisfied that the existing care percentage of 50/50 care in respect of the care for [Child 1] for Ms Chisenhall and Mr Bardsley is to be revoked from 27 August 2020. 

Issue 3 – What is the correct level of care to be attributed to the parents and what is the effective date of the new care determinations?

1. The tribunal has determined that the care percentage in respect of [Child 1] should be changed from 27 August 2020 to reflect that the care percentage had changed from 50/50 to each parent to 85% to Ms Chisenhall and 15% to Mr Bardsley and so the previous care determination is revoked. This new care determination reflects the evidence that Ms Chisenhall was providing a higher level of day-to-day care of [Child 1] during the period which included visiting her, attending hospital meetings, planning for her discharge and engaging with the NIDIS planning for her.

2. However, Ms Chisenhall applied for a review by the tribunal of the objections officer’s decision of 4 March 2021 on 9 April 2021. As this is more than 28 days after the objections officer’s decision the tribunal must consider the date of effect of the new care determination.

3. Section 95N of the Registration Act also provides that a review decision will have effect from the date the application for review was made if the application was lodged more than 28 days after the objection decision. However, if there are special circumstances that prevented the person from lodging the application within 28 days, the tribunal may allow for a longer application period.

4. Ms Chisenhall provided an email outlining her reasons why she lodged an appeal of the objections officer’s decision after 28 days of the decision. Ms Chisenhall said she was not receiving notices from the Agency into her MyGov account and it was recommended she download the Child Support app. This meant she did not receive the notice in time. Mr Bardsley did not have an issue with Ms Chisenhall lodging an appeal outside the 28 days.

5. Accordingly, it is the tribunal’s view that there were special circumstances which prevented Ms Chisenhall from lodging an appeal to the objection officer’s decision earlier than 9 April 2021.

6. As the tribunal is satisfied that special circumstances exist which prevented Ms Chisenhall from lodging an appeal with the tribunal the tribunal is satisfied that the date of effect of the new care determination for [Child 1] to reflect 85% care to Ms Chisenhall and 15% care to Mr Bardsley applies from 28 August 2020 for Ms Chisenhall and from 20 July 2020 for Mr Bardsley.

DECISION

The decision under review is set aside, and substituted with a decision as follows:

• Ms Chisenhall had 85% care of [Child 1] from 28 August 2020; and

• Mr Bardsley had 15% care of [Child 1] from 20 July 2020.