Herbert and Child Support Registrar (Child support)

[2020] AATA 1039

Herbert and Child Support Registrar (Child support) [2020] AATA 1039 (21 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017693

APPLICANT:  Miss Herbert

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member K Dordevic

DECISION DATE:  21 February 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, determines that:

·     [Mr A’s] application to amend the care register on 2 January 2019 is refused; and

·     the reference to 28 days in paragraph 95N(2)(b) of the Child Support (Registration and Collection) Act 1988 is extended to 24 October 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review set aside and substituted
CHILD SUPPORT – date of effect of the tribunal’s decision – whether there were special circumstances that prevented the application for review being lodged in time - special circumstances exist - tribunal makes 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 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. Relevant to this application, [Mr A] and Miss Herbert are the parents of [Child 1] and [Child 2]. There has been a child support assessment in place since 7 August 2007.

2. On 13 December 2018 the Department determined that both parents had 0% care of the children, as they were residing with their paternal grandfather.

3. On 2 January 2019 [Mr A] notified the Department that he had sole care of both children. His request for a new care determination was accepted on 12 March 2019, with the care register reflecting that he had 100% care of the children from 2 January 2019.

4. Miss Herbert objected to that decision on 19 March 2019. On 13 May 2019 an objections officer disallowed her objection.

5. Miss Herbert sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 24 October 2019.

6. The matter was heard on 13 February 2020. Miss Herbert appeared by conference telephone. [Mr A] elected not to be added as a party.  Prior to the hearing the Department provided documentation (folios 1–235) as did Miss Herbert (folios A1–A6).

7. The matter was deferred so as to allow further evidence to be provided by Miss Herbert and for the tribunal to gain further relevant information from Centrelink. On 17 February 2020 the tribunal issued an order to the Department, pursuant to subsection 95J(1) of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), asking that the Child Support Registrar exercise its power to obtain from Centrelink records for:

   ·[Child 1] (DOB [in] 2004) and [Child 2] (DOB [in] 2002) and provide current and historical information regarding their address/es and income support payments; and

   ·[Mr A] (DOB [given]) and provide current and historical information regarding his address/es.

8. On 21 February 2020 the tribunal received additional documents from Miss Herbert (A7–A8) and the Department (C1–C6). The tribunal reached its decision on the same day.

CONSIDERATION

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

2. Relevant to this matter, section 50 of the Act requires the primary decision-maker to determine the pattern of care based on actual care at the time of notification and the likely care thereafter. The tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same – what was the pattern of care up until the date of notification and what was likely to occur thereafter?

3. The tribunal finds that [in] November 2016 the Family Court ordered that [Child 2] live with her paternal grandfather and [Child 1] with her paternal aunt, and that each caregiver would have sole parental responsibility for the child in their care. The orders go on to state that both Miss Herbert and [Mr A] spend no time  with the children and are restrained by injunction from approaching and/or having contact with them at any place or by any means.

4. [Mr A] lodged his application for a child support assessment on 2 January 2019, some 20 days after a decision was made by the Department that the children resided with their paternal grandfather. In reaching that decision, the objections officer had spoken to [Mr A’s] father, who stated that the children were living in his home, that [Mr A] also resided there and was undertaking some day to day care of the children. He also stated that [Mr A] takes the children to the doctor and provided inconsistent financial support to them. During this contact the paternal grandfather reiterated that it was he that fed, clothed and housed the children and that he was the contact person should an issue arise at the children’s schools. The paternal grandfather also stated that [Mr A] had increasing care and control of the children in the preceding months and he anticipated that the children would be placed solely in their father’s care in the next months.

5. In support of his application [Mr A] provided statements authored by:

   ·[Name], deputy principal, [School 1] dated 21 March 2019 which states “It is the school’s understanding that [Child 1] DOB [given] is currently living with her father, [Mr A]”; and

   ·[Dr A], general practitioner, dated 3 April 2019 which states that both children have resided with [Mr A] since 2 January 2019, as they self-placed with him.

6. The tribunal also notes in evidence receipts of a payment made to [School 1] indicating that [Mr A] paid $140 towards [Child 1’s] school fees on 20 March 2019.

7. Miss Herbert’s evidence can be summarised as follows. The children remain living with their paternal grandparents; there has been no change to the care arrangements. The paternal grandfather lives in [Suburb 1], and also has another property in [Suburb 2], where [Mr A] lives inconsistently. Generally, the paternal grandfather will say anything to keep the peace with [Mr A]. [Child 1] is attending a behavioural school in [Suburb 3] and was enrolled there by the paternal grandfather. Furthermore, [Dr A] is not aware of the actual family arrangements, and will simply state whatever he is told by [Mr A]. She also pointed out that the deputy principal only went so far as to state the school’s “understanding” of the care arrangements and that the payment of the school fees by [Mr A] was a “gimmick” only done so he could provide some documentary evidence that he cared for the children. Miss Herbert concluded by stating that she and [Child 1] went to [another state] from 16 to 23 December 2019 and that [Child 1] reported that she was still living with her grandparents.

8. The tribunal next considered the address record in evidence, provided by Centrelink regarding [Mr A] and [Child 2]; they advised the tribunal that the details for [Child 1] are not available as hers is a “child record”. [Mr A] is recorded as living with his parents at the [Suburb 1] address from 14 March 2018 to 15 August 2019, when he then moved to the [Suburb 2] property. [Child 2] is recorded as living at her grandparents’ home from 6 June 2018 to 10 May 2019, whereby she moved to the [Suburb 2] property from 11 May to 30 May 2019, and then resided again at her grandparents’ home from 31 May 2019 to 30 January 2020. From 31 January 2020 she is recorded as again living at the [Suburb 2] property. It is also noted that [Child 2] was granted youth allowance on 7 June 2019 and is paid at the living at home rate.

9. Overall, the tribunal is not persuaded that at the date of notification by [Mr A] there was a change to the children’s pattern of care. The tribunal gave little weight to [Dr A’s] statement as it appears that his statement is based on information provided to him by [Mr A]. The evidence from Centrelink is that [Mr A] continued to reside with his parents, with whom the children lived. That the children apparently “self-placed” with their father, when their accommodation arrangements did not change, supports this conclusion. Furthermore, the evidence suggests that the statement from the deputy principal, [named], is correct. Certainly, the Centrelink record indicates that as a matter of fact [Child 1] was living with her father; however, she was also living with her paternal grandparents. Thus, the tribunal gave little weight to this statement.

10. This is not to say that, though residing in the same home as the children, [Mr A] provided no care.  The matter of Polec & Staker (SSAT Appeal) [2011] FMCAfam 959 is instructive on what constitutes care. Hughes FM outlined various factors to take into account, including where the child resides and who makes the decision about where the child resides, who is responsible for the daily physical, social and other activities and who bears the financial costs associated with the child. The only evidence regarding meeting the children’s costs provided is a receipt for $140 some three months after [Mr A] lodged his application. The court orders dictate that the paternal grandfather and aunt have legal responsibility for the children; there is nothing to suggest that [Mr A] now solely meets the needs of the children by meeting their accommodation, clothing, food, supervision, education, health care and emotional support, among other factors, and the paternal grandfather is the contact person at the children’s school.

11. As stated above, there is a temporal element when determining care. The tribunal is not persuaded that, at the time [Mr A] notified the Department of the purported care change, there was an actual pattern of care whereby he had exclusive care of the children. The tribunal concludes that [Mr A’s] application to amend the care register on 2 January 2019 must be refused.

12. The tribunal next considered the date of effect of the tribunal’s decision. Generally, in situations where an application to this tribunal is not lodged within 28 days of the objection officer’s decision, the effective date of the new decision by this tribunal is the date on which the application for review was made (subsection 95N(1) of the Registration and Collection Act). As a matter of fact Miss Herbert did not lodge her objection to the objection officer’s decision within 28 days of being notified of the decision.

13. However, the tribunal may, if there are special circumstances that prevented her application being made within the relevant period, make a determination under subsection 95N(2) that paragraph 95N(1)(b) of the Registration and Collection Act applies as if the reference to 28 days were a reference to a longer period as the tribunal determines to be appropriate.

14. At hearing Miss Herbert stated that she was living in a situation of domestic violence; her partner was extremely controlling and she left him in April 2019. She was required to find alternative accommodation for herself and her young children, as well as deal with her own mental health issues arising from the ongoing violence. In support of her assertions she provided a statement from [Ms A], Manager, [Welfare Service 1], dated 17 February 2020. [Ms A] states that in April 2019 five referrals were received regarding the violence that was perpetrated upon Miss Herbert and from which she was fleeing. Despite relocating, she frequently saw her violent ex-partner in her local area and on one of these occasions she was verbally abused by him. She was referred to the [Welfare Service 1] in October 2019 after she was identified by the local police as being at serious threat and deemed as being in need of protection. There remain ongoing domestic violence matters before the court, which continue to impact on Miss Herbert’s emotional health and wellbeing. [Ms A] also stated that Miss Herbert was unable to lodge her application in a timely manner given her need to relocate away from her support network, as well as ongoing issues regarding her safety.

15. Taking into account her long history of exposure to domestic violence, that she and her infant children fled from her violent ex-partner immediately before the objections officer’s decision was made and that she had ongoing incidents of exposure to violence after relocating, the tribunal is of the view that Miss Herbert’s personal trauma prevented her from lodging her application for review within the required timeframe. In reaching this conclusion, the tribunal was cognisant of the fact that this decision will not cause a significant overpayment (if at all) and is not persuaded that Miss Herbert rested on her rights. For these reasons, the tribunal has decided to exercise the discretion in subsection 95N(2) of the Registration and Collection Act and so extend Miss Herbert’s permissible date of lodgement to 24 October 2019.

DECISION

The tribunal sets aside the decision under review and, in substitution, determines that:

·     [Mr A’s] application to amend the care register on 2 January 2019 is refused; and

·     the reference to 28 days in paragraph 95N(2)(b) of the Child Support (Registration and Collection) Act 1988 is extended to 24 October 2019.