Forsberg and Forsberg (Child support)

[2020] AATA 1020

Forsberg and Forsberg (Child support) [2020] AATA 1020 (25 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017656

APPLICANT:  Ms Forsberg

OTHER PARTIES:  Child Support Registrar

Mr Forsberg

TRIBUNAL:Member K Buxton

DECISION DATE:  25 February 2020

DECISION:

The decision under review is set aside and a decision substituted that:

a.from 16 March 2019, [Child 1] and [Child 2] are to be recorded as in the 14% care of Mr Forsberg and the 86% care of  Ms Forsberg;

b.The tribunal makes a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the tribunal’s decision in (a) is 16 March 2019.

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 - whether there were special circumstances that prevented the objection being lodged in time – special circumstances existed

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 Forsberg and Ms Forsberg are the parents of [Child 1], born [2001], and [Child 2], born [2004]. The children were, for many years, in the primary care of Ms Forsberg. From 1 December 2018 [Child 1] was recorded as in the 100% care of Mr Forsberg. From 21 October 2018 [Child 2] was recorded as in the 100% care of Mr Forsberg. This review is about care for the children following a reported change in care in March 2019. Ms Forsberg lodged a number of review applications concerning care for the children from late 2018 onwards and the tribunal will set out the background of each application to place into context the decision under review.

2. On 10 December 2018 Mr Forsberg notified the Child Support Agency (CSA) that he had been having 100% care of [Child 1] from 1 December 2018. On 19 February 2019 the CSA decided to change the recorded care for [Child 1] to 24% to Mr Forsberg and 76% to Ms Forsberg from 1 December 2018 (the first decision). Mr Forsberg objected to the first decision and his objection was allowed, with the objections officer deciding to record [Child 1] as in the 100% care of Mr Forsberg from 1 December 2018. Ms Forsberg applied to this tribunal for review of the objection decision and in a separate decision of the tribunal the objection decision was affirmed.

3. On 15 March 2019 Ms Forsberg notified the CSA of a further care change for [Child 1] and a change in care for [Child 2]. She stated that care was to be in accordance with a parenting agreement reached on 11 March 2019 and that she would be having 94% care of both children, with Mr Forsberg to have 6% care from 16 March 2019 when the agreement was to commence. She confirmed with the CSA on 21 March 2019 that the care change had occurred. On 15 May 2019 the CSA decided to refuse to record care for the children (the second decision). Ms Forsberg objected to that decision and her objection was disallowed. Ms Forsberg applied to the tribunal for review of that decision.

4. The tribunal notes that Mr Forsberg subsequently notified the CSA of a further care change such that [Child 2] had returned to his 100% care from 30 March 2019. The CSA decided to record [Child 2] as in the 0% care of both parents (the third decision). Mr Forsberg also objected to the third decision and his objection was allowed, with the CSA deciding that no change in care was to be recorded from 30 March 2019, on the basis that [Child 2] was already recorded in his 100% care as a result of an earlier decision, and without having regard to the change in care for [Child 2] reported by Ms Forsberg from 15 March 2019. Ms Forsberg applied to the tribunal for review of that objection decision.

5. Ms Forsberg also applied to the tribunal to review a decision recording [Child 2] as in her 100% care from 1 July 2019. However, with the consent of both parents, that application was dismissed by the tribunal on 25 February 2020. This review deals only with the application to review the objection decision with respect to the second decision. This review application therefore concerns the decision of the CSA to refuse to record a change in the recorded care for the children from March 2019.

6. At the hearing on 25 February 2020 the tribunal heard sworn evidence from Mr Forsberg and Ms Forsberg, who participated in the hearing by conference telephone. The tribunal accepted into evidence the subsection 37(1)[1] statements and documents provided by the CSA (Exhibit 1). The hearing took place at the same time as the hearings in the applications to review the first and third decisions and all the evidence available to the tribunal was considered in determining all three review applications.

   [1] Administrative Appeals Tribunal Act 1975

CONSIDERATION

1. The tribunal is to determine whether there has been a care change for [Child 1] and [Child 2]. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination should be revoked. Subsection 54F(1) provides that the determination must be revoked in circumstances where a different cost percentage would apply if the care percentage determination was changed.  

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the child. It is for the tribunal to determine whether there has been a care change which leads to a revocation of the existing determination and, if so, how and from when the revocation and a new care determination should apply.

3. The previously existing pattern of care for the children was that they had been in Mr Forsberg’s 100% care, [Child 1] from December 2018 and [Child 2] from October 2018. When Mr Forsberg was contacted by the CSA he disagreed with the care change in the terms proposed by Ms Forsberg but stated that he anticipated having about 52 nights of care of the children per year in accordance with a recent parenting arrangement. He stated that this care was to be two nights each month and school holiday care of about 28 nights across the year.

10.  Mr Forsberg’s evidence at the hearing was to the effect that a parenting agreement was reached on 11 March 2019 and the children both returned to the care of Ms Forsberg from 16 March 2019 in accordance with that plan. He stated that the plan involved the children living with Ms Forsberg and with Mr Forsberg having care in the school holidays. He stated that although the agreement proposed two nights of care each fortnight he planned to have blocks of care of the children during school holidays. Mr Forsberg stated that, about two weeks after the children returned to the home of Ms Forsberg circumstances led to [Child 2] returning to his 100% care.

11.  Ms Forsberg’s evidence at the hearing was to the effect that the second decision was incorrect and that she was to have 100% care of the children from 15 March 2019. However, when the care change was notified Ms Forsberg provided a copy of the parenting plan providing around 52 nights per year in care for Mr Forsberg. Ms Forsberg also stated, at one point in the hearing, that it would be correct to record her as having the children in her 50% care in early 2019. 

12.  The evidence given during the hearing by Mr Forsberg is consistent with the documents and information provided by Ms Forsberg at the time of notification of the change in care and the tribunal prefers that evidence to the somewhat changeable account of Ms Forsberg. The tribunal is therefore satisfied that there was a change in care for the children from 16 March 2019 which is when the parenting agreement was to take effect. The tribunal is further satisfied that, from 16 March 2019, the likely pattern of actual care for both children was that they would be in the 14% care of Mr Forsberg and the 86% care of  Ms Forsberg.

13.  The tribunal has reached a decision that differs to that under review. The tribunal therefore sets aside the decision under review and instead decides that, from 16 March 2019, the likely pattern of actual care for [Child 1] and for [Child 2] was that they would be in the 14% care of Mr Forsberg and the 86% care of  Ms Forsberg.

14. The tribunal’s findings will lead to a decision that differs from the objection decision under review. The CSA records show that the letter notifying of the objection decision was sent on 9 July 2019 by electronic means. Ms Forsberg could not recall with precision the first time she accessed that letter but she stated that she had not been able to access her myGov account as the account had been locked and the issue had been escalated within the CSA, but not in a timely way. As the notification was sent electronically, the assumption is that she received it on the day it was sent. Ms Forsberg therefore applied to the tribunal for review more than 28 days after receiving notice of the objection decision. As the tribunal is to substitute the decision under review, it is necessary to decide, under section 95N of the Child Support (Registration and Collection) Act 1988, whether Ms Forsberg had special circumstances which prevented her from applying to the tribunal for review within a 28-day period.

15.  During the hearing both parents described various challenges that were being met at around the time the objection decision was delivered. The CSA papers indicate that the Department of Child Safety had been consulted with respect to [Child 2] and her living arrangements, and both parents expressed concern to one another about negative influences of third parties with whom [Child 2] had been spending time. With Ms Forsberg’s access to myGov locked, an objection decision that did not seem to reflect the information given to the CSA at the time by either parents and the various concerns around [Child 2], who returned to the care of Ms Forsberg on 1 July 2019, the tribunal is satisfied that Ms Forsberg’s circumstances were sufficiently special such that she was prevented from seeking review within 28 days of being notified of the decision under review. 

16. Ms Forsberg applied to the tribunal for review of the objection decision more than 28 days after receiving notice of that decision, and as the tribunal is satisfied, under section 95N(2) of the Child Support (Registration and Collection) Act 1988, that she had special circumstances which prevented her from applying for review within a 28-day period, the decision of the tribunal will therefore take effect from 16 March 2019.

DECISION

The decision under review is set aside and a decision substituted that:

a.from 16 March 2019, [Child 1] and [Child 2] are to be recorded as in the 14% care of Mr Forsberg and the 86% care of  Ms Forsberg;

b.The tribunal makes a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the tribunal’s decision in (a) is 16 March 2019.