Ecclesall and Muskett (Child support)

[2022] AATA 3518

Ecclesall and Muskett (Child support) [2022] AATA 3518 (27 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC023593

APPLICANT:  Mr Ecclesall

OTHER PARTIES:  Child Support Registrar

Ms Muskett

TRIBUNAL:Member A Schiwy

DECISION DATE:  27 June 2022

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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. Mr Ecclesall and Ms Muskett are the separated parents of [Child 1] who is 16 years old.  [Ms A] (‘the grandmother’) is the child’s maternal grandmother.  This application is about the level of care provided for [Child 1] by the parents and grandmother.  

2. A child support case was originally registered in 2005 when [Child 1] was a few weeks old.  The care of the child has changed over the years and at times Mr Ecclesall has been the person liable to pay child support and at times Ms Muskett was liable.

3. On 24 January 2020 Mr Ecclesall informed Services Australia (‘Centrelink’) that [Child 1] had left his care on 24 October 2019 and she was being cared for by her grandparent.  On 6 March 2020 Centrelink confirmed that [Child 1] was being cared for by a third party.  As of June 2020, there was no active child support case.

4. On 6 July 2020 Ms Muskett contacted Centrelink to state that she had a shared care arrangement from with the grandmother.  She was having 58% care and the grandmother was having 42% care.  Centrelink treated Ms Muskett as having 100% care as it was determined she was delegating some care to the grandmother.

5. On 17 November 2020 Ms Muskett applied for a child support assessment on the basis of having 100% care since 31 May 2020.  Mr Ecclesall was contacted on 19 November 2020 by Services Australia (‘Child Support’), and he advised that court orders prevented Ms Muskett from having any care of [Child 1].  He stated that there was a non-parent carer (the grandmother).

6. On 14 December 2020 Child Support decided to accept the child support case from 17 November 2020 and issued assessments on the basis that Ms Muskett had 100% care of [Child 1].

7. On 1 December 2021 Mr Ecclesall objected to the decision made on 14 December 2020 that Ms Muskett had 100% care.

8. A further care decision was made that there had been a change in care such that the grandmother had 100% care of [Child 1] with the date of effect being 1 November 2021.

9. On 24 March 2022 an objections officer decided to partly allow the objection.  The officer decided that there was a change in care from 15 June 2020 such that Ms Muskett had 58% care of [Child 1] and the grandmother had 42% care.  The officer also decided that there were no special circumstances preventing Mr Ecclesall from lodging his objection within 28 days of the original decision and therefore the date of effect for the objection decision was 1 December 2021.  As the new care decision was now in place (from 1 November 2021) the objection decision had no practical effect.

10. On 31 March 2022 Mr Ecclesall applied to this tribunal for an independent review of the objections officer’s decisions.

11. A hearing into the application for review was held by the tribunal on 27 June 2022.  Mr Ecclesall participated in the hearing by conference telephone and gave evidence under affirmation during the hearing.  Ms Muskett was notified in writing of the hearing on 2 June 2022.  She was sent an SMS reminder on 24 June 2022.  Several attempts were made to contact Ms Muskett at the time of the hearing and messages left on her phone.  The tribunal, noting that Ms Muskett had been appropriately notified of the hearing, decided to proceed with the hearing without Ms Muskett participating.

12. The grandmother was notified of the application on 3 May 2022 and invited to be added as a party.  She was asked to respond by 17 May 2022, but no response was received.

13. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975.  A copy of the papers was provided to the parents prior to the hearing.

CONSIDERATION

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked.

3. In this matter the Registrar must determine the actual care of the child or the likely care during the ‘care period’ commencing from the start of the child support assessment (in accordance with section 50 of the Assessment Act).

4. The following evidence was obtained from the Child Support papers:

   ·Centrelink noted on 6 July 2020 that Ms Muskett stated there was a change in care due to [Child 1]’s schooling requirements.  She will continue to have primary care of [Child 1] and will be providing financially for her and making major decisions about health, education and discipline.  The Centrelink officer treated this as a delegation of care rather than a shared care arrangement.

   ·Final court orders issued on 7 January 2021 stating that paragraphs 1–9 of the interim orders filed on 7 December 2020 were to apply.  The interim court order include the following:

   ·     previous orders were discharged.

   ·     the child lives with the parties (Mr Ecclesall and Ms Muskett) as she wishes.

   ·     Mr Ecclesall and the grandmother had shared parental responsibility.

   ·     [Child 1] to attend [School 1].

   ·On 25 October 2021 Mr Ecclesall contacted Child Support and stated that [Child 1] was no longer in her grandmother’s care, but in the care of her mother and the mother and [Child 1] reside with the grandmother. 

   ·On 1 December 2021 Mr Ecclesall told Child Support that:

   ·     Prior to October 2019 he had 100% care of [Child 1] in accordance with court orders.  [Child 1] ran away and he sought a recovery order.  [Child 1] returned to his care for a week only and then ran away again.  New court orders were issued on 24 October 2019 providing shared responsibility for [Child 1] between himself and the grandmother. The court order allowed for [Child 1] to stay where she wishes.  She has been with the grandmother since October 2019.

   ·     To the best of his knowledge Ms Muskett does not stay with the grandmother as there is possibly a restraining order in place.

   ·     The grandmother makes decisions about [Child 1]’s welfare such as schooling, not Ms Muskett.

   ·     He believes [Child 1] has spent some overnights with Ms Muskett, but he was not sure how much this had occurred.

   ·     He had only become aware the previous weekend, when talking to the grandmother, that the grandmother was not receiving any financial support and he did not think this was fair.

   ·On or around 23 December 2021 Child Support received a handwritten note from Ms Muskett stating that she still had 100% care of [Child 1].

   ·On 31 December 2021 Child Support contacted Ms Muskett to discuss Mr Ecclesall’s objection.  She said that while the court orders state that [Child 1] is in the care of her grandmother, they had not been followed for approximately a year.  The grandmother has parental responsibility and has allowed [Child 1] to reside with Ms Muskett.

   ·Child Support made a file note on 4 January 2022 stating that when Ms Muskett informed Centrelink she had 100% care, Centrelink contacted the grandmother who confirmed that this was correct; [Child 1] had left her care on 15 June 2020 and gone to live with Ms Muskett.

   ·On 4 January 2022 Child Support contacted Ms Muskett.  Ms Muskett said that [Child 1] had spoken to Mr Ecclesall last week for the first time in about 12 months.  Ms Muskett said she spends some time at her mother’s but only occasionally.  She undertook to provide a letter from the grandmother about care.   She was reminded about providing evidence on 6 January 2022.

   ·On 3 February 2022 Child Support decided that there had been a further change in care on 7 January 2021 such that neither parent had care of [Child 1].  The date of notification was 1 December 2021.  On 17 March 2022 Child Support then declared this decision invalid.  It is unclear from the evidence provided why the decision was made and why it was declared invalid. The decision had resulted in Ms Muskett being overpaid $4,877.80 and these arrears were reversed when it was decided the decision was invalid.

   ·On 24 March 2022 Child Support noted that they had decided that a change in care had occurred from 1 November 2021 such that neither parent had care of [Child 1]; the grandmother has 100% care.  Child Support noted at that time that Ms Muskett had no fixed address.

5. At the hearing Mr Ecclesall stated that:

   ·He had full custody of [Child 1] for years.  She ran away in late 2019 to her grandmother’s house.  He obtained a recovery order and [Child 1] returned to his care the following week.  She stayed a week and then ran away again.

   ·Since then he has had some contact with [Child 1], phone calls and messages, but she does not discuss where she is living.  He would discuss why she was not attending school with [Child 1].

   ·He got the impression that [Child 1] would stay with her grandmother now and then but mainly stayed with her boyfriends.

   ·In the last two years he has spoken twice to the grandmother.  In November 2021 the grandmother contacted him to say that [Child 1] had stayed out overnight again and she had to pick her up from Ms Muskett’s house.  She told Mr Ecclesall that the child does what she wants and will not obey the rules.  The other conversation was about how COVID-19 was impacting; the grandmother said that neither Ms Muskett nor [Child 1] were isolating when they should.

   ·He has no contact with Ms Muskett.  He does not know where Ms Muskett lives.

6. No evidence was provided of any discussion between Child Support and Centrelink with the grandmother other than the file note above which states the grandmother confirmed with Centrelink that [Child 1] was living with Ms Muskett. 

7. Ms Muskett was provided with the opportunity of providing evidence to Child Support about the grandmother and her financial support but failed to do so.  Ms Muskett was given the opportunity to provide evidence to this tribunal at the hearing but failed to attend.

8. Mr Ecclesall has had very little contact with the grandmother and none with Ms Muskett; he has had limited contact with [Child 1].

9. There is therefore very little evidence to go on in this case.  The tribunal placed some weight on the fact that the grandmother did not dispute that [Child 1] was living with Ms Muskett in June 2020.  It would appear that this changed and by November 2021, possibly well before this date, [Child 1] was again 100% in the grandmother’s care.

10. As at 15 June 2020 [Child 1] was recorded as being 100% in the care of the grandmother.  Given the grandmother’s evidence to Centrelink, the tribunal was satisfied that there was a change in care on that day with [Child 1] spending some time with her mother and staying with her grandmother during school time.  The tribunal was not satisfied that Ms Muskett was providing any financial, emotional or other support when [Child 1] was staying with her grandmother.  The tribunal therefore decided that from the date the case was registered the likely pattern of care was such that Ms Muskett had 58% care of [Child 1] and the grandmother had 42% care.

Date of effect

1. The tribunal found that the original decision was made on 14 December 2020 and Mr Ecclesall lodged an objection to that decision on 1 December 2021.

2. Mr Ecclesall therefore lodged his objection to the original decision more than 28 days after the decision was made. Subsection 87AA(1) of the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act) states that in such a case, where an objection is allowed, or allowed in part, as is the case with this decision, the date of effect is the date the person lodged the objection. Mr Ecclesall applied under subsection 87AA(2) of the Registration and Collection Act to extend the 28-day period due to special circumstances preventing him from lodging the objection on time.

3. In the Child Support Guide, at chapter 4.1.8, the Registrar sets out the policy for determining if special circumstances exist and states:

   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. Some examples of special circumstances may include:

   ·the parent was seriously ill or had an accident that stopped them from lodging an objection

   ·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

   ·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

   ·the parent reasonably relied upon inaccurate or misleading information.

4. Mr Ecclesall stated that he did not realise that the grandmother was not receiving any financial support until the week before he lodged the objection.  The tribunal noted that he was notified of the decision on 14 December 2020 and the new assessments issued at the time.  The tribunal decided that there were no special circumstances preventing Mr Ecclesall from lodging an objection on time within 28 days of the decision being notified, and therefore the date of effect is 1 December 2021. 

5. As discussed above a new care percentage was determined with date of effect from 1 November 2021, therefore there is no practical impact of this decision.  

DECISION

The decisions under review are affirmed.