Garadine and Garadine (Child support)

[2024] AATA 2280

Garadine and Garadine (Child support) [2024] AATA 2280 (7 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027561

APPLICANT:  Ms Garadine

OTHER PARTIES:  Child Support Registrar

Mr Garadine

TRIBUNAL:  Member J Nalpantidis

DATE DECISION MADE:                7 June 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Ms Garadine had 100% care of the children and Mr Garadine had 0% care of the children from 13 January 2023; and

• the date of effect of the new care decision is 13 January 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – change in care arrangements – mother’s withholding of care and father’s reasonable action to have arrangements restored – interim care determination continued to reflect parenting plan despite actual care changing – interim determination cannot be made after child support assessment already made – objection made more than 28 days after decision – mother self-represented and unaware of requirements – Family Court proceedings, mental and physical health, worker’s compensation claim and full-time care of children with disabilities – objection lodged after engaging lawyer – 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 Garadine and Mr Garadine are the separated parents of [Children 1 and 2] (the children). A case has been registered with Services Australia – Child Support (Child Support) since 25 May 2022 and child support has been collectable by Child Support from that date. Mr Garadine is the payer of child support and Ms Garadine the payee.

2. Prior to the decision under review, the care of the children reflected the Parenting Plan dated 30 June 2022 which was care of 67% to Ms Garadine and 33% to Mr Garadine.

3. On 12 January 2023, Ms Garadine reported a change in care arrangements for the children. The new arrangements were reported as 100% to Ms Garadine and 0% to Mr Garadine from 25 December 2022.

4. On 17 January 2023, Mr Garadine advised Child Support that the care of the children was occurring in line with the Parenting Plan until 13 January 2023, when Ms Garadine started withholding care of the children. Mr Garadine also advised Child Support he was taking reasonable action to have his level of care per the Parenting Plan restored.

5. On 22 March 2023, Child Support made the decision to apply an interim care determination from 13 January 2023, continuing to reflect the care of the children, according to the Parenting Plan, as 67% to Ms Garadine and 33% to Mr Garadine despite the actual care having changed, until 20 April 2023. The actual care occurring of 100% to Ms Garadine and 0% to Mr Garadine applied from 21 April 2023.

6. On 16 May 2023, Ms Garadine objected to the interim care decision, seeking application of the actual care from the date of the change, being 13 January 2023, as she met all the costs of care at the time. Ms Garadine advised Child Support she was not able to object to the decision within 28 days due to being self-represented in Family Court proceedings and she was recovering from a workplace injury.

7. On 3 August 2023, an objections officer contacted Mr Garadine regarding Ms Garadine’s objection and Mr Garadine elected to provide a response at a later date. Mr Garadine did not provide a response by the due date.

8. On 6 February 2024, an objections officer allowed Ms Garadine’s objection. The objections officer found both parents confirmed there was a change in care of the children on 13 January 2023, with Ms Garadine having 100% care and Mr Garadine 0%, which was the actual care occurring at that date. Prior to the change in care, the pre-existing care arrangement of the children from 1 July 2022 was in line with the Parenting Plan, with Ms Garadine having 67% care and Mr Garadine 33% care. Accordingly, the existing care arrangements from 1 July 2022 were revoked from 13 January 2023. The objections officer determined that as there was an existing care arrangement in place that was revoked, an interim care determination cannot be made for the children. The objections officer made a care determination based on the actual care of the children, being 100% with Ms Garadine and 0% with Mr Garadine from 13 January 2023, notified on 13 January 2023. In line with the Parenting Plan, this is the date the children were to return to Mr Garadine’s care, but they did not.  Ms Garadine objected to the original decision on 16 May 2023, which is more than 28 days after the date of the original decision, stating she could not object earlier due to Family Court proceedings and the effects of a workplace injury. The objections officer attempted to contact Ms Garadine on 21 July 2023 and 3 August 2023 and sent a letter to Ms Garadine on 3 August 2023 requesting additional information. No response was received from Ms Garadine and further unsuccessful attempts were made by the objections officer to contact Ms Garadine on 10 January 2024 and 11 January 2024 to clarify details of her special circumstances.

9. As no further information was provided by Ms Garadine regarding special circumstances, on 6 February 2024, the objections officer determined that special circumstances were not established for the delay in the lodgement of Ms Garadine’s objection beyond 28 days. Therefore the date of effect of the new care arrangement was 16 May 2023, which is when Ms Garadine lodged the objection. As the actual care arrangements had been applied from 16 May 2023, there was no change to the child support assessment.

10. On 23 February 2024, Ms Garadine sought review by the Administrative Appeals Tribunal (the Tribunal) for an independent review of Child Support’s decision.

11. The Tribunal hearing was conducted on 7 June 2024. Ms Garadine and Mr Garadine participated in the hearing by MS Teams audio and gave evidence on affirmation.

12. At the hearing the Tribunal had before it documents provided by Child Support (1 to 327). These documents had been exchanged between the parties prior to the hearing and they confirmed receipt of the documents with the Tribunal.

ISSUES

1. The issues for determination in this case are whether:

   ·      there was a change in care on 13 January 2023? And

   ·      the date of effect of a change in care arrangement can be earlier than 16 May 2023?

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Assessment Act. Section 49 of the Assessment Act applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care. Under section 54A of the Assessment Act the default position is that a pattern of care is determined having regard to nights of care.

3. Before a determination under section 49 or 50 of the Assessment Act can be made in relation to a person, the care determination in place for that person must be revoked (or suspended). As far as is relevant, a revocation under section 54F of the Assessment Act can occur only if the Registrar were to determine (under section 49 or 50 of the Assessment Act) a different percentage of care and the person’s cost percentage would change as a result.[1]

   [1] Care determinations can also be revoked under sections 54G or 54H of the Assessment Act. However, these provisions have no present relevance.

4. Relevantly, paragraph 54F(3)(b) of the Assessment Act provides that, if Child Support is informed of a change of care more than 28 days after the change occurred, the revocation takes effect on the day before the change of care day for the parent with reduced care. It takes effect on the day before notification for the parent with increased care. Where advice is provided within 28 days, the revocation takes effect on the day before the change of care day under paragraph 54F(3)(a) of the Assessment Act.

5. In relation to a current change of care, the wording of subparagraphs 49(1)(b)(ii) and 50(1)(b)(ii) of the Assessment Act require a decision-maker to have regard to the care position at the time they make their determination. The decision-maker will need to determine if a change of care occurred and, if so, consider the care that has already occurred since the change of care and the care that is likely to occur in a period after the decision-maker considers the matter. Setting a care period from the change of care is required as part of this process.

Was there a change of care on 13 January 2023?

1. There is no dispute that the care arrangements of the children from 1 July 2022 were 67% to Ms Garadine and 33% to Mr Garadine, which was in line with a Parenting Plan dated 30 June 2022. There is also no dispute that the actual care of the children changed on 13 January 2023, when care became 100% to Ms Garadine and 0% to Mr Garadine. The Child Support material shows that Ms Garadine advised of the change in care on 12 January 2023, advising that the children had been in her 100% care since 25 December 2022. Mr Garadine responded that there was an existing shared care arrangement and Ms Garadine had care of the children according to the existing Parenting Plan from 25 December 2022, and there was no change in the arrangement as it was simply a continuation of the existing care. Mr Garadine told Child Support the children were due to return to his care on 13 January 2023, and Ms Garadine withheld the children from his care. He acknowledged that the children were in Ms Garadine’s 100% care from 13 January 2023, albeit without his consent. According to the Child Support records, Mr Garadine stated Ms Garadine withheld care of the children on 13 January 2023 and this was the first and only care event for him that had been missed, and there is no new care pattern in place. Mr Garadine stated he expects the existing care pattern to resume and states this missed care event is a one-off circumstance as far as he is concerned. He disagrees that the care has changed.

2. The Child Support material includes a Court Order dated 4 July 2023 which provides for the care of the children to be shared by Mr Garadine and Ms Garadine on a 50:50 basis. A record in the Child Support material dated 10 July 2023 states the parents agree that care of the children is being provided in line with the Court Order from 10 July 2023.

3. The parents’ evidence is consistent that the care arrangements for the children changed on 13 January 2023, albeit without Mr Garadine’s consent, and Ms Garadine provided 100% care from that date. The Tribunal has found that prior to 13 January 2023, the care of the children was in accordance with a Parenting Plan dated 30 June 2022, being 67% care to Ms Garadine and 33% care to Mr Garadine.

4. Where a person is prevented from having care of a child in line with an established care arrangement, such as a Parenting Plan, without their consent and the person takes reasonable steps to have the care arrangements complied with, care may be determined according to the existing care arrangements rather than the actual care for an interim period. However, an interim care determination may only be made where it is the first care percentage determination in relation to a responsible person’s care of a particular child. This is because an interim determination cannot be made where there was an existing care percentage determination that has been revoked.

5. This means that an interim determination cannot be made in relation to a child at any time after a child support assessment has already been made. In this case the pre-existing care percentage in place for the children was 67% with Ms Garadine and 33% with Mr Garadine from 1 July 2022. The Tribunal has found that the actual care of the children changed on 13 January 2023 such that Ms Garadine had 100% care of the children and Mr Garadine had 0% care. Accordingly, the existing care arrangement must be revoked from 13 January 2023. As there was an existing care percentage determination in place for the children, that was revoked, an interim care arrangement cannot be made in this case. Accordingly, an actual care determination applies from 13 January 2023, that Ms Garadine has 100% care and Mr Garadine has 0% care, notified on 13 January 2023.

Can the date of effect of a change in care arrangement be earlier than 16 May 2023?

1. As noted, the original decision by Child Support was made on 22 March 2023 to apply an interim care determination from 13 January 2023, continuing to reflect the care of the children, according to the Parenting Plan, as 67% to Ms Garadine and 33% to Mr Garadine despite the actual care changing, until 20 April 2023. The actual care occurring of 100% to Ms Garadine and 0% to Mr Garadine applied from 21 April 2023. Ms Garadine was notified of the decision of 22 March 2023 by letter of the same date.

2. To be within 28 days of being advised of a decision, Ms Garadine was required to lodge her objection to the original decision by 20 April 2023. The Tribunal has found that Ms Garadine lodged an objection to Child Support’s care decision of 22 March 2023 on 16 May 2023, some 26 days after the 28-day period ended. It is clear that Ms Garadine objected outside 28 days of being served notice of the decision.

3. In conducting a merits review, the Tribunal stands in the original decision-maker’s shoes by standing in the objections officer’s shoes – SDSS v Sevel and O’Connell [1992] FCA 559. As the Tribunal stands in the shoes of both the original decision-maker and the objections officer, it therefore must address the same questions/issues that both officers were required to address under the relevant statute(s) – Shi v Migration Agents Registration Authority [2008] HCA 31.

4. Subsection 87AA(1) of the Registration and Collection Act provides that, if a person lodges an objection outside 28 days of being served notice of a care percentage decision, the date of effect of a review decision changing that decision is the day the person lodged the objection. Under subsection 87AA(2) of the Registration and Collection Act, the time for lodging an objection can be extended at the objections officer’s discretion if there are special circumstances that prevented the person from lodging the objection within 28 days.

5. Ms Garadine acknowledged she objected to the 22 March 2023 decision on 16 May 2023, but she was a self-represented person and was not aware of the requirements and processes involved in the child support system. She contacted Child Support after lodging her application for review with the Tribunal to clarify the issues; she was not aware of the requirement to object within 28 days and thought it would be covered in her Family Court proceedings. Ms Garadine told the Tribunal she was not aware that the child support assessment was separate to her Family Court proceedings. As a self-represented person she found the Family Court proceedings consumed all her focus and she needed to provide a lot of material, including financial details, and detailed affidavits (included in the Child Support material). She thought that her priority should be with the Family Court proceedings as they would address the same issues as Child Support. Her ability to deal with the issues effectively was also impacted by her mental health; she has an ongoing workers’ compensation claim for mental health which incapacitated her for work. She told the Tribunal she found that process difficult particularly given Mr Garadine was represented in the proceedings and a lawyer was also engaged to represent the children.

6. Ms Garadine told the Tribunal during the process she often filed the wrong forms and made lots of mistakes. She simply did not understand how the system worked. This was compounded by having 100% care of two young children who have disabilities.

7. Ms Garadine gave evidence that she engaged a lawyer in May 2023 and this is when she lodged her objection.

8. Ms Garadine did not recall the Child Support letter or the telephone calls referred to by Child Support but her understanding was that the issue of child support payments would be part of the court process and she was pursuing those proceedings. It was clear she had 100% care of the children and she assumed the care arrangements and the financial aspects of child support would be dealt with by the court process. She misunderstood the process and has since researched the process and now understands there are deadlines which had to be met.

9. Ms Garadine gave evidence she worked remotely as a global executive and was bullied and harassed at work, and this impacted on her mental health. She suffers from anxiety, which is triggered by the use of computers and online forums. She therefore avoids computers and online contact and instead handwrites things she needs to follow up. As well as mental health symptoms she suffers from ongoing physical symptoms. Her ongoing treatment includes anti-anxiety medication and regular attendance to her GP, psychologist and psychiatrist.

10. Ms Garadine told the Tribunal she was paid some $3,000 in child support in 2022 but was over $100,000 in debt and met the costs of the children’s schooling, medical and other costs as outlined in her affidavit. She was of the understanding that all the issues would be addressed via the Family Court and was not aware that child support was addressed separately.

11. While Ms Garadine acknowledged the Child Support material shows a number of unsuccessful attempts to contact her she does not recall messages or letters from Child Support.

12. Mr Garadine disagreed that Ms Garadine did not understand the requirements from Child Support. He submitted that he was also self-represented and received lengthy and complex emails which he dealt with. He told the Tribunal that initially Ms Garadine withheld the children from him from March 2022 to June 2022 and then a Parenting Plan was put in place providing for care to be shared on the basis that Ms Garadine had 67% care and he had 33% care. This shared care continued until January 2023 and then Ms Garadine again withheld the children from his care until June 2023. They had ongoing weekly or fortnightly contact via emails about financial matters. He did his best to provide information to Child Support for the assessment of child support.

13. Mr Garadine submitted the children’s disabilities are ongoing and can be managed. He paid medical expenses for the children and submitted that Ms Garadine’s claim she has costs of over $100,000 was ludicrous. He challenged Ms Garadine’s evidence that caring for the children impacted her ability to lodge an objection, as this was an ongoing issue. He accepted the children may have some anxiety but this did not prevent them from living their lives. He submitted that Ms Garadine did not appear to have a problem in communicating with him or the court.

14. Subsection 87AA(2) of the Registration and Collection Act provides a discretion that if special circumstances prevented the person from lodging an objection to a Child Support care percentage decision within 28 days, the period of time can be extended. In this case the Tribunal has found that Child Support notified Ms Garadine of the care percentage decision on 22 March 2023 therefore the 28-day period to lodge an objection ended on 20 April 2023. Ms Garadine lodged her objection on 16 May 2023, some 26 days after the 28-day period ended. Ms Garadine gave detailed evidence to the Tribunal about her state of mind, which was impacted by her understanding of the child support system, her mental health workplace injury, engagement in complex legal proceedings as a self-represented person, and her focus on 100% care of her children who have a disability.

1. The Tribunal accepts that many parents struggle to understand how the law applies to care percentage and related decisions. The Tribunal also accepts there were other factors in Ms Garadine’s case impacting on her ability to understand and follow up what can be complex requirements, including her mental health, engagement in concurrent Family Court proceedings as a self-represented person, which in part included care arrangements for the children. It was her evidence, accepted by the Tribunal, that she was under the understanding the court proceedings would deal with all matters. She acknowledged that she subsequently accepts this was a misunderstanding. Overall the Tribunal accepts that special circumstances apply in Ms Garadine’s case such that the discretion in subsection 87AA(2) should be exercised to allow the date of effect of the change in care decision to apply from 13 January 2023.

2. In respect of the new care decision a determination is therefore made pursuant to subsection 87AA(2) of the Registration and Collection Act and therefore the new care decision has effect from 13 January 2023 pursuant to subsection 87AA(1) of the Registration and Collection Act.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

·      Ms Garadine had 100% care of the children and Mr Garadine had 0% care of the children from 13 January 2023; and

·      the date of effect of the new care decision is 13 January 2023.