Goadberry and Marabese (Child support)

[2024] AATA 3936

Goadberry and Marabese (Child support) [2024] AATA 3936 (5 September 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027969

APPLICANT:  Mr Goadberry

OTHER PARTIES:  Child Support Registrar

Ms Marabese

TRIBUNAL:Member A Ryding

DECISION DATE:  05 September 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that, in respect of [the children]:

a)Mr Goadberry’s care percentage is 50% from 12 October 2021.

b)Ms Marabese’s care percentage is 50% from 8 November 2020.

The date of effect of this decision is 20 May 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – date of change – later date reported by mother, earlier date claimed by father – child needing routine – mother’s information provided in Family Court proceedings – issues of credit – father’s concessions, and claims against mother unable to be tested – date of effect of decision – father’s late notification – divorce and criminal proceedings, health and communications difficult and time-consuming but not special circumstances – 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. This is an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision of Services Australia – Child Support (Child Support) regarding the percentage of care attributable to each of the parents in this matter.

2. The applicant, Mr Goadberry, and one of the other parties to this application, Ms Marabese, are the parents of two children, [Child 1] (born 13 April 2011) and [Child 2] (born 20 September 2013).

3. Mr Goadberry and Ms Marabese have had a registered child support case in relation to [the children] since 27 August 2019.

4. From 30 March 2020, care had been recorded as 14% to Mr Goadberry and 86% to Ms Marabese.

5. On 12 October 2021, Ms Marabese informed Child Support that care of [the children] changed to 50% to her and 50% to Mr Goadberry, effective from 11 October 2021 (folio 17). Mr Goadberry apparently agreed to that care change in a call with Child Support on 17 October 2021 (folio 19).

6. On 17 October 2021, Child Support made a determination to reflect the care for [the children] as 50% to Mr Goadberry and 50% to Ms Marabese from 11 October 2021 (folio 20).

7. On 14 May 2022, Child Support made a new care percentage determination, that care of [the child] was 100% with Mr Goadberry and 0% with Ms Marabese from 14 February 2022 (folio 76). Ms Marabese objected to this on 19 December 2022, but the objection was rejected by Child Support on 27 February 2023 (folio 297). From Child Support’s records, care has continued to be recorded as 100% to Mr Goadberry and 0% to Ms Marabese.

8. On 6 December 2022, Mr Goadberry objected to Child Support’s care determination dated 17 October 2021 (folio 282) on the grounds that Mr Goadberry said that the care change to 50/50 commenced on 9 November 2020.

9. On the same date Mr Goadberry lodged an objection to a decision of Child Support not to credit $3,070 he had paid as non-agency payments towards Mr Goadberry’s child support obligations. That objection was rejected on 14 March 2023 (folio 302). On 4 December 2022, Mr Goadberry lodged an objection to a decision of Child Support not to credit $780 he had paid as

   
   

   non-agency payments towards Mr Goadberry’s child support obligations. That objection was allowed on 17 March 2023 (folio 307).

10. On 20 March 2023, Child Support provided its decision on Mr Goadberry’s objection to the care change to 50/50 (Objection Decision) (folio 13). Child Support disallowed Mr Goadberry’s objection, and the date of care change remained 11 October 2021.

11. On 27 July 2023 Child Support accepted Mr Goadberry’s application for child support payable by Ms Marabese from 3 June 2023.

12. On 20 May 2024, Mr Goadberry applied to the Tribunal for review of the Objection Decision. His grounds of appeal were as follows:

    I request the AAT please provide leave for this application for review to be accepted out of time. Since October 2022 and to date I have had 100% care of my two children [redacted] Supporting my children and their wellbeing has required my attention and my pursuit for the custody percentage to be corrected was overlooked.

    I do not believe that my evidence was properly considered. History of this child support matter shows that the mother has constantly provided false information to child support on multiple occasions I have provided evidence that shows the false information provided by the mother. I provided text messages from the mother that supported the care percentage became 50/50 from 9 November 2020 (it was earlier but this is the earliest evidence I have). I do not believe my explanation of the call that occurred  between child support and me on 17 October 2021 was properly considered or understood. On 17 October 2021 I confirmed 50/50 care because I was of the belief that the mother had already recorded custody to be 50/50 with child support in late 2020 because she told me she would. When I was asked if custody was 50/50 I said that yes it was 50/50 I was not saying that 50/50 custody had commenced from the date of that call. I have new evidence. I have a copy of the mothers application for divorce sealed 26 April 2021 and the application states "child support on 50/50 custody". In family law proceedings the mother has filed 3 seperate [sic] affidavits dated 14/03/2023, 05/06/2023 and 02/04/2024 in which she states words to the effect “on or around October 2020 custody became 50/50” which is evidence that is more than sufficient to prove my case.

13. On 5 August 2024, the Tribunal conducted a hearing in this matter. Mr Goadberry attended the Tribunal and participated in person. Ms Marabese was expected to participate by MS Teams audio but it was not possible to contact her. The Tribunal was satisfied that Ms Marabese was given proper notice of the hearing and that reasonable attempts were made to contact her during the hearing. The Tribunal therefore determined to proceed with the hearing in Ms Marabese’s absence. Child Support did not participate and instead relied upon its documents.

14. Before the Tribunal were hearing papers supplied by Child Support, numbered 1 to 402 and documents provided by Mr Goadberry marked A1 to A52 (together, the hearing papers). Mr Goadberry provided evidence on oath at the hearing.

15. After the hearing Mr Goadberry provided further documents, which were marked A53 to A147. Ms Marabese was given the opportunity to respond to the further documents but did not.

16. The Tribunal has had regard to all of the documents provided to it and the evidence provided by Mr Goadberry. Reference below is made only to the documents and evidence relevant to this decision.

ISSUES

1. The child support scheme is intended to assist separated parents to take responsibility for the financial support of their children. It recognises that parents have a primary duty to maintain their children.[1]

   [1] Section 3 of the Assessment Act.

2. How child support is assessed by Child Support and provided by parents is governed by the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

3. Part 5 of the Assessment Act sets out the way in which the annual rate of child support payable by a parent for a child for each day in a child support period is to be calculated. A critical element of that calculation is each parent’s “percentage of care” for the child, which falls to be determined under sections 49 to 54E of Subdivision B of Division 4 of Part 5 of the Assessment Act.

4. Each time the care provided by one or other parent changes, a new care period arises and Child Support must consider if there has been a change in the percentage of care and what the new percentage of care should be.

5. The issues for consideration in this application are:

   ·      Has there been a change in care? If so, what are the new percentages of care?

   ·      From when should the existing percentages be revoked (if at all)?

   ·      From when do the new percentages apply?

CONSIDERATION

Issue 1: Has there been a change in care? If so, what are the new percentages of care?

1. A “care period”[2] is calculated from the day on which the actual care of a child changed and is stated in the Assessment Act to be “such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

   [2] Defined in subsection 5(1) of the Assessment Act to have the meaning given by paragraph 49(1)(a), subparagraph 49(1)(b)(ii), paragraph 50(1)(a) or subparagraph 50(1)(b)(ii).

23.  The Child Support Guide states that it will “generally be a 12-month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12-month periods, unless otherwise advised.”[3]

[3] The Child Support Guide is part of the Guides to Social Policy Law, a collection of publications issued by the Australian Government and designed to assist decision-makers administering social policy law. It is persuasive but has no legislative force. However, the Tribunal should take into account government policy as long as it is not inconsistent with the provisions and objects of the relevant legislation, Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

24.  The care period is used only for assessing whether there is a pattern of care and, if there is, what that pattern is. It does not set the period over which the care assessment applies.

1. Subsection 54A(1) of the Assessment Act allows the Child Support Registrar to determine actual care by reference to the number of nights the Registrar is satisfied the child was, or is likely to be, in the care of the person during the care period. This is the method Child Support used to determine the applicable care percentages in this matter, and the Tribunal finds that nights in care is the most appropriate method.

2. It is not in dispute between the parties that care changed such that Mr Goadberry had 50% care of [the children] and Ms Marabese had 50%. The issue is when that care changed, whether it was 11 October 2021 as Ms Marabese reported to Child Support, or whether it was earlier, on 9 November 2020, as Mr Goadberry asserts.

3. Mr Goadberry gave evidence to the Tribunal as follows. Mr Goadberry and Ms Marabese separated in or about September 2019 but continued to live under one roof. In January 2020, they stopped living under one roof and between January and March 2020, the children predominantly lived with their mother. From March to November 2020 there was an unstructured arrangement whereby care was shared roughly on a 50%/50% basis. In November 2020, Mr Goadberry and Ms Marabese discussed, by phone and in person, reaching a more structured care arrangement of a week on, week off. This was in particular due to the fact that [Child 2] has autism spectrum disorder and ADHD and needs routine. Mr Goadberry told the Tribunal that the arrangement to move to a structured week on, week off arrangement was never recorded in text messages.

4. Mr Goadberry dated that care change to 8 November 2020, being the Sunday night that he picked the children up from Ms Marabese’s house and they had structured 50/50 care from then.

5. Mr Goadberry was taken to the note of his call with Child Support on 17 October 2021, which records Mr Goadberry confirming care for the children at 50/50 from 11 October 2021 (folio 19). Mr Goadberry told the Tribunal that he did not appreciate that he was agreeing to care being from that date. He remained adamant that care changed in November 2020.

6. Mr Goadberry provided the Tribunal with extracts from affidavits sworn by Ms Marabese in Family Court proceedings between the parties. Mr Goadberry was asked to provide, after the hearing, evidence that the Family Court and Ms Marabese have consented to these affidavits being used in the present matter. The Family Court’s order, made on 23 July 2024 by consent (indicating Ms Marabese’s agreement), appears at folio A76. The Tribunal also asked Mr Goadberry to provide the affidavits in full, so that the Tribunal could satisfy itself that the extracts from Ms Marabese’s affidavits were not taken out of context. This is particularly important given Ms Marabese did not participate in the hearing.

7. The relevant parts of Ms Marabese’s affidavits are as follows:

   ·     An affidavit affirmed by Ms Marabese on 14 March 2023, beginning on folio A56, which relevantly states:

   57. About a week after the assault on 17 August 2019, I left Mr Goadberry and moved from Queensland to [Town] so the children could live close to Mr Goadberry's family, who I was very close with at the time. I also believed that by moving to [Town], Mr Goadberry and I would be able to have shared care of the children, and we would be able to provide them with more stability than if we stayed in Queensland without family support.

   58. Mr Goadberry moved to [Town] about a week after I did and moved in with me. Whilst we lived together we were living separated under one roof. I stayed living with Mr Goadberry because of the children and because I was studying at the time and was completely reliant on Mr Goadberry financially.

   59. We continued living at [Town] until January 2020 as the living arrangements were not working. Mr Goadberry then moved out and into the [Town] property, which is a separate property to the one we were staying in.

   60. Once Mr Goadberry moved out, the children were living solely with me. …

   …

   62. I continued to be the sole carer for the children during 2020 and during the first COVID-19 lockdown period. During this time, I was trying to home school both children whilst also studying full time. This involved organising their schooling day, as well as monitoring them to ensure that the [sic] were focusing on their school work. This was difficult as [the children] are in different years and had different requirements.

   63. In October 2020, after the first COVID-19 lockdown ended, I started working at [Employer]. During this time, Mr Goadberry and I were relatively amicable in our relationship, and we agreed to have an equal/shared-care arrangement for the children.

   ·     An affidavit affirmed by Ms Marabese on 5 June 2023, beginning on folio A135, which relevantly states, in paragraph 37:

   As to paragraph 9 of [Ms A]'s affidavit, I disagree that the children resided with [Ms A] and Mr Goadberry from about January 2020 and from 12 February 2021. Firstly, Goadberry and I stopped living together (whilst being separated) in January 2020 when he moved into the [Town] property. For a few months after we stopped living together, the children resided solely with me. Mr Goadberry and I then adopted a shared care arrangement in or around October 2020 which remained in place until approximately June 2022.

   ·     An affidavit sworn by Ms Marabese on 2 April 2024, beginning on folio A116. Paragraphs 41 onwards repeats the paragraphs in the affidavit affirmed by Ms Marabese on 14 March 2023 extracted above.

8. The evidence Mr Goadberry gave to the Tribunal and the documents he provided indicate that the custody battle between Mr Goadberry and Ms Marabese has been acrimonious and hard fought. Ms Marabese’s affidavits raised a number of issues that go to the credit of Mr Goadberry. The Tribunal however did not form the view that Mr Goadberry was not telling the truth in the hearing. He conceded a number of matters that could go to his credit and openly provided documents after the hearing relating to those matters. The Tribunal accepts Mr Goadberry’s evidence as regards the agreement reached as to a structured care arrangement of week on, week off from November 2020.

9. Mr Goadberry raised a number of issues with the Tribunal which he said went to Ms Marabese’s credit. As Ms Marabese did not participate in the hearing, the Tribunal was unable to put these matters to her and disregards them. Mr Goadberry raising issues with Ms Marabese’s credit also does not sit easily with Mr Goadberry seeking to rely on statements Ms Marabese made in her affidavits.

10. The Tribunal considers that it is entitled to assume that Ms Marabese affirmed the affidavits under advice from her solicitors regarding the need to tell the truth and that it is therefore appropriate to place weight on the statements made in those affidavits. They support that a change in care to 50/50 shared care took place in or about October 2020. Mr Goadberry said that it occurred on 8 November 2020, and explained why he considered it changed from that date.

11. Noting that the parties agree that care was shared from at least 8 November 2020, the Tribunal finds that, from 8 November 2020, care was shared between Mr Goadberry and Ms Marabese on a 50/50 basis. The Tribunal is unable to find that care was shared on that basis any earlier than 8 November 2020.

Issue 2: From when should the existing percentages be revoked (if at all)?

1. As there are new care percentages in place of the care percentages existing up to 8 November 2020 (which were recorded as 14% to Mr Goadberry and 86% to Ms Marabese), the Tribunal must consider whether to revoke the existing care percentage determination.[4] There are various alternative sections of the Assessment Act that address revocation, but in this case the applicable section is section 54F.

   [4] Section 50 of the Assessment Act.

2. Revocation under section 54F is only available where revocation under section 54G of the Assessment Act is not available. A requirement of section 54G is that one or other parent had, under the existing care determination, at least “regular care” of the child (14%), but has had no or less than regular care despite the other parent making the child available. That is not the case here and the Tribunal finds that revocation under section 54G is not available.

3. The other requirements of section 54F are:

   · The existing percentage of care was determined in accordance with sections 49 or 50 of the Assessment Act. In the present case, Child Support’s determination that Mr Goadberry had 14% care and Ms Marabese had 86% care, would have been made under section 50 of the Assessment Act.

   ·      Child Support is notified or becomes aware that the actual care does not correspond with the person’s percentage of care for the child under the existing determination. This occurred when Ms Marabese notified a care change on 12 October 2021.

   · If a new percentage were to be determined under either section 49 or 50 of the Assessment Act, it would change the person’s cost percentage. An increase in Mr Goadberry’s care percentage from 14% to 50% means that his cost percentage changes from 24% to 50%.[5]

   [5] Section 55C of the Assessment Act.

4. Once the requirements of section 54F are met, the Tribunal must revoke the existing determination. Therefore, the Tribunal finds that the existing care percentages for the care period commencing 30 March 2020, of 14% to Mr Goadberry and 86% to Ms Marabese, are revoked and replaced by the new care percentages of 50% to Mr Goadberry and 50% to Ms Marabese.

5. As regards the date of revocation, the Tribunal has found that the notification of a change to care was made by Ms Marabese on 12 October 2021. As this was more than 28 days of the change of care day (8 November 2020), pursuant to paragraph 54F(3)(b) of the Assessment Act there is a different date of revocation for the parties, which the Tribunal finds are as follows.

• For Mr Goadberry, as his care of the children has increased, the date of revocation is the day before Child Support was notified of the care change, 11 October 2021.

• For Ms Marabese, as her care of the children has decreased, the date of revocation is the day before the change of care day, that is, 7 November 2020.

1. The Tribunal therefore finds that the new care percentages of 50% to Mr Goadberry and 50% to Ms Marabese began:

• For Mr Goadberry, on 12 October 2021.

• For Ms Marabese, on 8 November 2020.

Issue 3: What is the date of effect of this decision?

1. There are issues with both the date Mr Goadberry objected to Child Support’s care decision made on 17 October 2021 and the date he applied to the Tribunal that potentially impact the date of effect of this decision.

Date of objection to Child Support’s care decision made on 17 October 2021

1. Under subsection 87AA(1) of the Registration and Collection Act, if an objection to a care percentage decision is lodged more than 28 days after notice of the care percentage decision is served, the date of effect of a decision allowing the objection is the date the objection was lodged.

2. However, as Child Support did not make a determination in Mr Goadberry’s favour in the Objection Decision, Child Support did not need to consider (and did not consider) whether there were special circumstances that enabled it to vary the date of effect of its decision. The Tribunal has made a care determination that increases Mr Goadberry’s care percentage. It therefore needs to consider the date of effect of its decision, including whether to exercise the discretion in subsection 87AA(2) discussed below.

3. In this case, the Tribunal finds that notice of the care percentage decision was given to each party on 17 October 2021 (by the letters at folios 23 and 25). Child Support decided that Mr Goadberry lodged his objection on 27 January 2023 (refer to the Objection Decision dated 20 March 2023). There is a file note of a call between Child Support and Mr Goadberry on 6 December 2022, that was specifically expressed by Child Support not to be Mr Goadberry lodging an application but discussing whether an objection is a suitable option (folio 282). That call was transferred within Child Support and became an objection discussion (folio 284).

4. The Tribunal finds that Mr Goadberry’s objection was lodged on 6 December 2022. This is more than 28 days after notice of the care percentage decision was served (and over a year later), making the date of effect of this decision the date Mr Goadberry’s objection was lodged, on 6 December 2022.

5. Subsection 87AA(2) gives Child Support (and therefore the Tribunal) the discretion to vary the date of effect where there are special circumstances that prevented the party from objecting earlier.  

6. The Child Support Guide states,[6] as regards what it will consider “special circumstances”:

   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 the date of the original decision. 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.

   [6] in section 4.1.8.

7. Mr Goadberry provided Child Support with a number of reasons for lodging his application late in an undated letter to Child Support sent at the time of lodging his objection (folios 282 and 286):

   The reason for not objecting the decision within the 28 days is that an agreement had been made and that Child Support would cease collecting and revert to a Private Agreement. I was reaching the final stages of my divorce application and supported by my previous correspondence. ... It was a combination of my foolish trust that I didn’t  think I needed to object to this date at the time because Ms Marabese said she would cancel Child Support collecting it and the situation I was in. Ms Marabese said she would do it, so I didn’t want to aggravate the situation by asking if she had, Ms Marabese was best left unchallenged... The reason I’m lodging an objection now is that I recently discovered an old broken phone that had the evidence I needed. I’m not in that [redacted] position anymore and I now know that I have a better understanding and support.

8. The Tribunal notes that the final divorce order was made on 17 November 2021 (folio A3). The Tribunal also notes that it was open to Mr Goadberry to lodge an objection without necessarily having all of the evidence available. The Tribunal appreciates however that Mr Goadberry may not have been aware of this.

9. Mr Goadberry told the Tribunal that he had issues in receiving letters electronically and was not at the time (that is, in 2021) registered with myGov. He did not believe he saw the letter from Child Support dated 17 October 2021 notifying him of the care decision (folio 23) at the time it was sent and was only aware that there had been a care decision when child support arrears of around $27,000 were taken out of his account. He thought that this was around the time of a decision from Child Support regarding non-agency payments (which appears to have been on or about November 2022, see the objection decision dated 27 February 2023 at folio 297).

10. Mr Goadberry told the Tribunal that he had nearly 11 months of fighting with Child Support and through the family law system. He had three little boys to care for, Mr Goadberry and his partner having had a baby in 2023. He gave evidence regarding significant mental health issues with Ms Marabese and the need for their children to see psychologists weekly, and as regards the impact of the ongoing family court proceedings, a hearing in respect of which has been set for early 2025.

11. The documents provided by Mr Goadberry after the hearing raised issues regarding the
    non-agency payments, difficulties he faced in dealing with Child Support, and that Ms Marabese told him many times that she was going to cancel child support collection and told him that it had been cancelled (folio A84). Mr Goadberry provided a chronology of events between November 2021 and December 2022 (folio A89), which included issues regarding the mental health of Ms Marabese, the physical health of Mr Goadberry, and issues regarding care of the children. As regards health, Mr Goadberry said that in 2019 he underwent major neck surgery due to prolapsed discs in his cervical spine and that he has ulcerative colitis (folio A84).

12. As Ms Marabese did not participate in the hearing, the Tribunal was not able to put any of the above matters to her. It did however send Mr Goadberry’s further documents to her and gave her seven days in which to comment, and no comment was forthcoming.

13. The Tribunal is not required to make any findings as to what exactly was happening in the lives of Mr Goadberry, Ms Marabese and their children between October 2021 and December 2022. It is clear to the Tribunal that there were a number of significant matters which took the attention of Mr Goadberry. The Tribunal finds that taken together these matters comprise special circumstances such that the date for objecting to the care decision dated 17 October 2021 should be extended to 6 December 2022 pursuant to subsection 87AA(1) of the Registration and Collection Act.

Application to the Tribunal for review

1. Under subsection 95N(1) of the Registration and Collection Act, if an application to the Tribunal for review of a care percentage objection decision is lodged more than 28 days after notice of the care percentage objection decision is served, the date of effect of a decision allowing the objection is the date the objection was lodged.

2. In this case, the Tribunal finds that Mr Goadberry received notice of the Objection Decision on 20 March 2023, by Child Support’s letter of that date (folio 11), noting that Child Support’s screens at folio 16 shows that it was sent to Mr Goadberry electronically.

3. The Tribunal finds that Mr Goadberry applied to the Tribunal on 20 May 2024. This is more than 28 days after notice of the Objection Decision was served, making the date of effect of this decision the date Mr Goadberry’s appeal to the Tribunal was lodged, 20 May 2024.

4. Subsection 95N(2) gives the Tribunal the discretion to vary the date of effect where there are special circumstances that prevented the party from objecting earlier.  

5. Child Support’s file note of a call with Mr Goadberry on 22 May 2023 (folio 315) states as follows (verbatim):

   PP advised he is not happy with our decision in regards to objection and will be contacting th Appeals tribunal. advised PP needs to do this ASAP as it has past the 28 days, this is in regards to 2 NAPS and 2 CIC

6. Mr Goadberry gave the Tribunal a number of reasons why he did not apply to the Tribunal within 28 days of receiving notice of the Objection Decision. He said that in March 2023, he was arrested on criminal charges and was on remand for five to six weeks. Dealing with the criminal proceedings and the ongoing family court proceedings has been in his words “full on” until a couple of weeks prior to the hearing. He said that he received weekly emails and accusations from Ms Marabese’s solicitor raising allegations of domestic violence against him and said that dealing with it feels like a full-time job. He said that Ms Marabese tried to sue him for the outstanding child support and that he has had to spend a significant amount of time going through his financial documents, spending months and months on thousands of transactions. He also raised the stress on him of dealing with all of these matters. When asked why it took over a year to apply to the Tribunal, Mr Goadberry said that all of the things he was dealing with took precedence over appealing, including the family law proceedings and the mental health of the children. He said that he wished that this was at the top of his list but it was not.

7. The documents provided by Mr Goadberry after the hearing included a chronology to explain the delay in appealing to the Tribunal (folio 90). This refers to the need to take care of his three children, the birth of one of those children in October 2023,  the criminal charges which, after he was released from remand, required him to report three days a week to the police station which could take between one to two hours each attendance, and the significant number of Court appearances in the criminal and Family Court proceedings. Mr Goadberry referred again to his health conditions and also referred to a hormone imbalance for which he had tests in May 2023. Mr Goadberry also referred to the time it took to obtain a court order allowing him to use affidavits in the family court proceedings in the present application. The Tribunal notes that the Court order granted leave to use the affidavits was made after the application to the Tribunal was made by Mr Goadberry.

8. Once again, the Tribunal was unable to put these matters to Ms Marabese as she did not participate in the hearing. Ms Marabese was given the opportunity to comment on the documents after the hearing but did not take up that opportunity.

9. The Tribunal has considered very carefully the evidence Mr Goadberry gave to the Tribunal and the further documents he provided. The Tribunal does not need to make a finding of fact as regards each of the matters Mr Goadberry raised. It is clear that Mr Goadberry had a number of very difficult and time-consuming matters to address in the period between March 2023 and May 2024.

10. However the Tribunal notes that the 28-day period for applying to the Tribunal and the need to act with urgency was specifically raised with Mr Goadberry by Child Support in the call on 22 May 2023. In all the circumstances and after careful consideration, the Tribunal finds that there are not special circumstances that prevented Mr Goadberry from applying to the Tribunal earlier than 20 May 2024. As a consequence, the Tribunal finds that the date of effect of this decision is the date Mr Goadberry applied to the Tribunal, on 20 May 2024.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that, in respect of [the children]:

a)Mr Goadberry’s care percentage is 50% from 12 October 2021.

b)Ms Marabese’s care percentage is 50% from 8 November 2020.

The date of effect of this decision is 20 May 2024.