Cobb and Mahoney (Child support)

[2019] AATA 5421

Cobb and Mahoney (Child support) [2019] AATA 5421 (6 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017260

APPLICANT:  Mr Cobb

OTHER PARTIES:  Ms Mahoney

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  6 November 2019

DECISIONS:

The decision to record Mr Cobb as providing 11% care with effect from 6 April 2018 and Ms Mahoney as providing 89% care with effect from 11 April 2019 is set aside, and in substitution, Mr Cobb is recorded as providing 11% care with effect from 11 April 2019 and Ms Mahoney is recorded as providing 89% care with effect from 11 April 2019.

The decision to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside, and in substitution, the Tribunal finds that Ms Mahoney objected to the original decision dated 11 April 2019 within 28 days of being notified of that decision, and therefore the question as to whether to make a determination pursuant to subsection 87AA(2) does not arise.

CATCHWORDS

CHILD SUPPORT – percentage of care – date of effect of new care determinations – 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 DECISIONS

1. Mr Cobb and Ms Mahoney are the parents of [Child 1] who was born in 2005. A child support case was registered with the Department of Human Services – Child Support (“the CSA”), as it is now called, in 2005. Court orders concerning the parents’ care of [Child 1] relevantly provided that from [Child 1’s] fifth birthday, Mr Cobb was to provide care during half the school holidays unless the parents agreed otherwise. There are 12 weeks of school holidays per year, so Mr Cobb’s default pattern of care was approximately 12 x 7 x ½ = 42 nights of care per year, which equates to 11% care.

2. The CSA recorded Mr Cobb as providing 14% care from 7 December 2010. Ms Mahoney has always been recorded as providing the balance of care and, for convenience, I will predominantly refer to Mr Cobb’s care.

3. On 11 April 2019, Ms Mahoney informed the CSA of a change in care from 1 January 2019. She stated that Mr Cobb was providing 43 nights of care per year. The CSA calculated that care during half the school holidays equated to 42 nights of care per year. The CSA contacted Mr Cobb who agreed that he was providing 42 nights of care per year. The CSA decided to record Mr Cobb as providing 11% care with effect from 1 January 2019, and Ms Mahoney as providing 89% care with effect from 11 April 2019 (“the original decision”). The different dates of effect were the result of the application of the current legislation, which I will discuss shortly.

4. On 16 April 2019, Mr Cobb objected to the original decision.

5. On 30 May 2019, Mr Cobb withdrew his objection to the original decision.

6. On 7 June 2019, and possibly on an earlier date too, Ms Mahoney objected to the original decision.

7. On 6 August 2019 an objections officer concluded that:

   ·    Mr Cobb started providing 11% care from 6 April 2018; and

   ·    Ms Mahoney first objected to the original decision on 7 June 2019, and special circumstances had prevented her from objecting within 28 days of being notified of the original decision.

8. The objections officer consequently made two decisions:

• The original decision was set aside, and in substitution, Mr Cobb was recorded as providing 11% care with effect from 6 April 2018, and Ms Mahoney was recorded as providing 89% care with effect from 19 April 2019; and

• a determination was made pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”), which meant that Ms Mahoney’s delay in objecting to the original decision did not affect the date of effect of the objections officer’s first decision.

1. Mr Cobb promptly applied to the Tribunal for review of the objections officer’s decisions. I heard the matter on 5 November 2019. Mr Cobb and Ms Mahoney participated in the hearing by conference phone.

2. During the hearing, both parents agreed that up until the 2017-18 Christmas school holidays, Mr Cobb had generally provided care during half the Christmas school holidays and during more than half the other school holidays. They also agreed that from the 2017‑18 Christmas school holidays onwards, Mr Cobb generally provided care during half of all the school holidays. It is debateable whether the change in care occurred during the 2017-18 Christmas holidays or the 2018 Easter school holidays, but nothing turns on that issue. Importantly, the change in care occurred before 23 May 2018, which was when the law concerning child support care decisions was amended.

3. Generally speaking, if a change in care occurs on or after 23 May 2018, and both parents continue to provide some care, and neither parent informs the CSA of the change in care within 28 days of its occurrence, then the parent with decreased care is recorded as providing the decreased care from the date on which the change in care occurred, and the parent with increased care is recorded as providing the increased care from the date on which the CSA was informed of the change in care: section 50 and paragraph 54F(3)(b) of the Child Support (Assessment) Act 1989 (“the Assessment Act”).

4. Generally speaking, if a change in care occurred before 23 May 2018, and the change in care resulted on one parent’s care reducing to less than 14% care, and the other parent did not notify the CSA of the change in care within a period that was reasonable in the circumstances, then both parents are recorded as providing the new percentages of care with effect from the date on which the CSA was informed of the change in care: sections 49 and 50 and paragraph 54F(2)(b) of the Assessment Act as it stood prior to the amendments in question.

5. The Act that amended the Assessment Act included a provision which stated that if a change in care occurred prior to 23 May 2018, then the care decision in respect of that change in care is to be made pursuant to the pre-amendment legislation: item 39 of Part 1 of Schedule 1 to the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018.

6. Ms Mahoney explained that she did not notify the CSA of the change in care earlier because 14% (which was Mr Cobb’s previously recorded percentage of care) and 11% (which is Mr Cobb’s currently recorded percentage of care) are both relatively small percentages, and it was not immediately apparent that Mr Cobb’s new pattern of care equated to less than 14% care. Ms Mahoney’s position is understandable, but the fact remains that it would have been readily apparent that Mr Cobb’s actual pattern of care had changed and he was providing less care. Ms Mahoney’s delay of approximately one year in notifying the CSA of the change in care was not reasonable in the circumstances. The preferable decision at first instance was therefore to record Mr Cobb as providing 11% care and Ms Mahoney as providing 89% care, with effect from the date on which Ms Mahoney informed the CSA of the change in care, which was 11 April 2019.

7. The other issue in this case is the determination that the objections officer made pursuant to subsection 87AA(2) of the Registration Act. Generally, if a person objects to a care decision more than 28 days after they were notified of the decision, and the objections officer changes the care decision, then the change only has effect from the date on which the person objected. However, if there were special circumstances that prevented the person from objecting within 28 days, then a subsection 87AA(2) determination can be made to increase the 28‑day period; the result is the same as if they had objected within 28 days.

8. The CSA notified both parents of the original decision dated 11 April 2019 via letters dated 11 April 2019. The objections officer found that Ms Mahoney did not object until 7 June 2019, and therefore did not object within 28 days of being notified of the original decision. However, Ms Mahoney contacted the CSA on 16 May 2019 and informed it that the original decision was incorrect, and the CSA replied that an objections officer would make a decision based on “all the information, including [your] belated advice of the revised [date of on which the change in care occurred].” When objecting to a care decision, there is no requirement to actually say the word “object”. Ms Mahoney’s contact with the CSA on 16 May 2019 constituted an objection to the original decision. After taking into account the time it would have taken for the notice dated 11 April 2019 to reach her in the ordinary course of the post, I find that she objected within 28 days of being notified of the original decision.

9. After the hearing, Ms Mahoney sent an email to the Tribunal registry; she effectively applied for leave to provide further evidence. I refused her application because the evidence in question was not relevant to the decisions under review. Even if it had been relevant, I would have refused her application because it was evidence that Ms Mahoney could have provided prior to the hearing, or during the hearing.

DECISIONS

The decision to record Mr Cobb as providing 11% care with effect from 6 April 2018 and Ms Mahoney as providing 89% care with effect from 11 April 2019 is set aside, and in substitution, Mr Cobb is recorded as providing 11% care with effect from 11 April 2019 and Ms Mahoney is recorded as providing 89% care with effect from 11 April 2019.

The decision to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside, and in substitution, the Tribunal finds that Ms Mahoney objected to the original decision dated 11 April 2019 within 28 days of being notified of that decision, and therefore the question as to whether to make a determination pursuant to subsection 87AA(2) does not arise.