Gardner and Child Support Registrar (Child support)

[2019] AATA 2539

Gardner and Child Support Registrar (Child support) [2019] AATA 2539 (5 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016266

APPLICANT:  Mr Gardner

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  5 July 2019

DECISION:

The decision under review is affirmed.

The Child Support Registrar is referred, in particular, to paragraph 12 of the Tribunal’s Reasons for Decision.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of effect – neither parent notified of the change in care within 28 days of the change - 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

1. Mr Gardner and [Ms A] are the parents of [Child 1] who was born in 2008. A child support case was registered with the Department of Human Services – Child Support (“the CSA”), as it is now called, in 2009. From March 2017, Mr Gardner was recorded as providing 28% care to [Child 1]. [Ms A] has always been recorded as providing the balance of care and, for convenience, I will predominantly refer to Mr Gardner’s care.

2. There appears to be no dispute that Court orders were made in 2012, and if the orders were followed, Mr Gardner would provide five nights of care per fortnight during school terms and he would provide care during half of the school holidays. Neither party provided the Tribunal with a copy of the orders.

3. According to the CSA’s records, Mr Gardner informed it on 11 January 2018 that a change in care had occurred on 28 November 2017. On 23 April 2018 the CSA decided to record Mr Gardner as providing 37% care with effect from 11 January 2018.

4. On 16 November 2018, Mr Gardner effectively objected to that decision; he informed the CSA that he disagreed with the decision. A CSA employee incorrectly informed him that he would have to apply for an extension of time in which to object, and he declined to do so. In fact, he did not have to apply for an extension of time in which to object. Section 87AA of the Child Support (Registration and Collection) Act 1988 governs the effect of a late objection. Mr Gardner contacted the CSA again on 17 December 2018 and it recorded him as objecting on that date. An objections officer disallowed his objection. The objections officer also made the following file note (at page 81 of the hearing papers):

   I will pend a new care change from the date of notification 16/11/2018 as 42% to dad and 52% [sic] to mum once I have confirmed the date of event from the customer.

5. Mr Gardner applied to the Tribunal for further review. [Ms A] was invited to apply to be made a party to the proceedings, but did not do so. I heard the matter on 5 July 2019. Mr Gardner participated in the hearing by conference phone.

6. At the hearing, Mr Gardner stated that he informed the CSA in November 2017 of the change in care. He could not recall the date of the phone call and he said he did not obtain a receipt number from the CSA in respect of the phone call. The CSA’s general practice is to make file notes of its phone calls, and it does not have a file note of Mr Gardner informing it in November 2017 of a change in care. On balance, I find that Mr Gardner first informed the CSA on 11 January 2018 of the change in care. He informed it that he had been providing 38% care since 28 November 2017. On 27 January 2018, [Ms A] confirmed that Mr Gardner was generally providing his Court-ordered care, but also stated that he may cease to provide care for a seven-week period commencing in February 2018. On 20 February 2018, Mr Gardner informed the CSA that his original information was incorrect and he was providing 42% care. On 7 March 2018, [Ms A] informed the CSA that Mr Gardner had ceased providing care from 10 February 2018. She provided a calendar on which she marked the care that Mr Gardner had provided, and was likely to provide, during the one-year period commencing on 28 November 2017. Her calendar appears to reflect Mr Gardner’s Court-ordered care apart from a cessation in his care from 10 February 2018 to 22 March 2018. She calculated that he would provide 137 nights of care during the one-year period commencing on 28 November 2017. 137 / 365 = 37.5%.

7. At the hearing, Mr Gardner accepted the accuracy of the information contained in [Ms A]’s calendar, but he noted that she had not recorded any care for December 2018. That month is blank because she was recording the care that he had provided, and was likely to provide, during the one-year period commencing on 28 November 2017.

8. The relevant law is contained in the Child Support (Assessment) Act 1989 (“the Act”) prior to amendments that took effect on 1 July 2018. Relevantly, section 54F of the Act provided for the revocation of the existing care determinations and section 50 of the Act provided for the making of new care determinations, based on the care each parent “has had, or is likely to have, … during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

9. The original decision-maker made her decision on 23 April 2018. At that point in time, it was reasonably open to her to proceed on one of two bases:

   (a)     the period from 28 November 2017 to 9 February 2018 constituted a separate care period during which Mr Gardner provided his Court-ordered care; the period from 10 February 2018 to 22 March 2018 constituted a separate care period during which Mr Gardner did not provide any care; and a period from 23 March 2018 — probably a 12‑month period —constituted a separate care period during which Mr Gardner had provided, and was likely to continue to provide, his ongoing Court-ordered care; or

   (b)     the period from 28 November 2017 to 27 November 2018 constituted the appropriate care period, during which Mr Gardner had provided, and was likely to continue to provide, his Court-ordered care and a one-off period of no care.

10. The original decision-maker proceeded on the second basis. Because neither parent had notified the CSA of the change in care within 28 days of it occurring, the new care determinations took effect from the date of notification: section 54B of the Act. Mr Gardner’s 37.5% care was rounded down to 37%: section 54D of the Act. For those reasons, Mr Gardner was recorded as providing 37% care with effect from 11 January 2018.

11. The CSA notified the parents of the care decision via letters dated 23 April 2018. It also informed them that they could object to the decision, in which case they should object within 28 days. At the hearing I noted that, according to the CSA’s records, Mr Gardner did not object until 16 November 2018. He replied that he had objected earlier, but his answer suggested that he was referring to his contact with the CSA prior to 23 April 2018. I find that he did not object until 16 November 2018, by which time the appropriate care period, as determined by the original decision-maker, had almost concluded. In light of those matters, I also consider the period from 28 November 2017 to 27 November 2018 to be the appropriate care period. For those reasons, the decision under review will be affirmed. 

12. As noted earlier, the objections officer noted that Mr Gardner informed the CSA on 16 November 2018 of a possible change in care. Mr Gardner provided similar information to the CSA on 17 December 2018. It is at least arguable that if there was a change in care, it occurred on 28 November 2018, on the basis that Mr Gardner’s previous pattern of care during the period from 28 November 2017 to 27 November 2018 consisted of his Court-ordered care and a one-off period during which he did not provide any care, and his new pattern of care from 28 November 2018 consisted of his Court-ordered care. On that view, Mr Gardner notified the CSA of the change in care within 28 days of its occurrence, and the CSA has not yet made a care decision in respect of that notification. However, that issue does not fall for determination by the Tribunal in the current proceedings. It is an issue that Mr Gardner can take up with the CSA directly.

DECISION

The decision under review is affirmed.

The Child Support Registrar is referred, in particular, to paragraph 12 of the Tribunal’s Reasons for Decision.