Gerberry and Child Support Registrar (Child Support)

[2021] AATA 2751

Gerberry and Child Support Registrar (Child Support) [2021] AATA 2751 (28 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020859

APPLICANT:  Mr Gerberry

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  28 May 2021

DECISION:

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

a)Ms Gerberry had a care percentage of 80% and Mr Gerberry had a care percentage of 20% in respect of the children from 18 April 2018; and

b)The Tribunal refuses to make a determination under subsection 95N(2) of the Registration and Collection Act and therefore its decision in a) has effect from 23 February 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decision – late application for review – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines to make a determination under subsection 95N(2)

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. This review concerns the care percentages used in a child support assessment. Ms Gerberry and Mr Gerberry are the parents of three children.

2. On 16 November 2017 Ms Gerberry notified Centrelink that she had 100% care of the three children from 16 September 2017. Centrelink made a care decision to reflect this.

3. A child support case was registered on 18 April 2018.  On 11 May 2018 a decision was made to base the assessment on a care percentage of 100% to Ms Gerberry and 0% to Mr Gerberry for the three children. This reflected the care decision made by Centrelink.

4. On 1 August 2019 Mr Gerberry advised Child Support he had had care of the three children for two nights a fortnight and five weeks per year during school holidays for the past two years. Child Support was unsuccessful in its attempts to discuss the care with Ms Gerberry. The care application was accepted on 6 September 2019 and the record was amended to reflect that Ms Gerberry had 80% care of the children from 1 July 2017 and Mr Gerberry had 20% care (75 nights per year) of the children from 1 July 2017. This decision had no effect on the child support administrative assessment as Centrelink had advised Child Support that Ms Gerberry had 100% care of the children from 16 September 2017.

5. On 18 August 2020 Mr Gerberry contacted Child Support and advised he had had care of the children for three nights per fortnight and half of the school holidays since separation (102 nights per year). He was advised to object to the decision of 11 May 2018 and did so the same day.

6. On 22 September 2020 Mr Gerberry’s objection was disallowed as no evidence was provided to confirm the care of the children.

7. Mr Gerberry applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) on 9 November 2020 for a review of the objection decision; however, his application was dismissed on 10 February 2021 when he failed to attend the hearing. His application for reinstatement was refused.

8. Mr Gerberry lodged a new application with the Tribunal on 23 February 2021. The application for review was heard on 13 May 2021. Mr Gerberry sought to rely on the evidence he had provided with his initial application which is numbered A1 to A17.

9. The Tribunal spoke to Mr Gerberry by telephone conference. Ms Gerberry did not respond to an invitation to be added as a party to the review. Mr Gerberry asked for time to provide further evidence and provided documents which were numbered A18 to A49.

ISSUES

1. The issues the Tribunal must decide are:

• what care percentages should be used in the child support assessment; and

• what is the date from which they have effect?

CONSIDERATION

What care percentages should be used in the child support assessment?

1. Child Support makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Child Support (Assessment) Act 1989 (the Assessment Act). These provisions require Child Support to make determinations of each parent’s percentage of care when first making a child support assessment and if there is a change to the care pattern which means that an earlier determination should be revoked.

2. Sections 49 and 50 of the Assessment Act require the Tribunal to determine the likely pattern of care for a child during a period that is considered appropriate (a care period).

3. There are no written care agreements in respect of the children.

4. Child Support attempted unsuccessfully to speak to Mr Gerberry when it received Ms Gerberry’s application for an administrative assessment in April 2018. On 11 May 2018 Mr Gerberry was notified of the decision to reflect that he had no care of the children.

5. Mr Gerberry stated he separated from Ms Gerberry in 2017 and has been living with his mother since then. It wasn’t until he looked on the Centrelink website that he realised the care percentages were incorrect. He then contacted Child Support. Based on the available evidence, a period of 15 months elapsed before Mr Gerberry contacted Child Support regarding the care percentages used in the assessment. Child Support was unsuccessful in its attempts to discuss the care arrangements with Ms Gerberry.

6. Mr Gerberry had been assessed to pay the minimum annual rate of $450 per annum from April 2018. His contact of 1 August 2019 followed the lodgement of his 2018/19 income tax return which resulted in adjusted taxable income of $40,321 being used in the assessment from 1 September 2019.

7. The decision made on 6 September 2019 had no effect on the administrative assessment due to the Centrelink decision that Ms Gerberry had 100% care from 16 September 2017.

8. Mr Gerberry next contacted Child Support regarding the care percentages used in the assessment on 18 August 2020. He advised he had care of the children for three nights per fortnight and half of all school holidays (102 nights). At hearing Mr Gerberry stated he has had care for two nights per fortnight and six weeks per year during school holidays since separation. He advised that if he was working during the school holidays, his partner cared for the children while he was at work. Ms Gerberry did not respond to the opportunity to provide details of the care arrangements for the children.

9. The evidence provided by Mr Gerberry includes a statement from his mother Mrs Julie Gerberry dated 22 December 2020  which states that Mr Gerberry has care of the three children for half of the school holidays and every second weekend. She states she knows this because Mr Gerberry lives with her. The remaining documents are photographs presumably of Mr Gerberry and his children, some of which are date stamped.

10. Mr Gerberry has been consistent in his oral evidence that he has a pattern of care of the children and Ms Gerberry has not accepted the invitations to counter Mr Gerberry’s claims.

11. The contact between Mr Gerberry and Child Support on 1 August 2019 records in part:

    for past 2 years Mr Gerberry advised that he has all 3 children [2] nights per fortnight and half of school holidays.

    I asked why he didn't advise sooner? Mr Gerberry advised he was unaware that he should have.

    He stated that he usually has 1 week in the 2-week holidays but last holidays he had them for the full 2 weeks.

    He only has them 2 weeks at xmas [sic] holidays also

12. While the  photographic evidence does not assist the Tribunal to determine a pattern of care of the children, the Tribunal accepts that Mr Gerberry has care of the three children and met the usual costs of the children during the periods they are in his care. The Tribunal has placed weight on the contemporaneous file note of 1 August 2019 and Mrs Julie Gerberry’s written statement.

13. The Tribunal finds that at that time the application for an administrative assessment was made, the care pattern was expected to continue and that it was likely that Mr Gerberry would have care of the children for at least 75 nights in the following year (the care period). The Tribunal finds that this equates to a care percentage of 20%.

14. The Tribunal finds that care percentages of 80% for Ms Gerberry and 20% for Mr Gerberry should apply from 18 April 2018 when Ms Gerberry applied for a child support assessment for the children. This means that Mr Gerberry’s objection should have been successful.

What is the date of effect of the Tribunal’s decision?

1. The objections officer made a decision on 22 September 2020. Mr Geeing applied to the Tribunal for a review of that decision on 23 February 2021. As the application to this Tribunal was made more than 28 days after the decision was served, the date of effect of the Tribunal’s decision is the date on which the application was made unless there were special circumstances which prevented an application for review within 28 days: section 95N of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. Mr Gerberry applied for a review of the objection decision on 9 November 2020 which was dismissed by the Tribunal after Mr Gerberry failed to attend his hearing. Even so, that application was made more than 28 days after receiving the objection decision.

3. The Tribunal finds that Mr Gerberry was not prevented from applying to the Tribunal within 28 days of receiving the objections officer’s decision. This means the date of effect of the Tribunal’s decision is the day the application was lodged: 23 February 2021.

DECISION

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

a)Ms Gerberry had a care percentage of 80% and Mr Gerberry had a care percentage of 20% in respect of the children from 18 April 2018; and

b)The Tribunal refuses to make a determination under subsection 95N(2) of the Registration and Collection Act and therefore its decision in a) has effect from 23 February 2021.