Janssen and Toole (Child support)

[2019] AATA 5103

Janssen and Toole (Child support) [2019] AATA 5103 (23 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/MC017116 and 2019/MC017174

APPLICANT:  Mr Janssen

OTHER PARTIES:  Child Support Registrar

Ms Toole

TRIBUNAL:Member A Schiwy

DECISION DATE:  23 October 2019

DECISION:

The tribunal affirms the decision that there was no change in care on 22 July 2013 and sets aside the decision about date of effect.  The tribunal decided that the date of effect of the care decision is 26 March 2019. 

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care for the carer parent – no change to the likely pattern of care - decision under review affirmed

CHILD SUPPORT – date of effect of objection decision – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist - 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 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. Mr Janssen and Ms Toole are the separated parents of [Child 1] who is currently nine years old.  This application for review is about the respective percentages of care that each parent has for the child.

2. The child support case was registered in September 2011 and the assessment was based on Ms Toole having 100% care of the child.  On 20 July 2013 the Department of Human Services (Centrelink) determined that Ms Toole and Mr Janssen had nil care of the child; she was being cared for by Ms Toole’s mother.  This decision was not notified to the Department of Human Services (Child Support) until 3 March 2016.  On that day Child Support decided to terminate the child support case and raised an overpayment of child support ($4,564.68) for payments made to Ms Toole from 20 July 2013 to 3 March 2016. 

3. On 14 November 2018 Ms Toole applied for a new case to be registered and this was granted on 4 February 2019 with effect from 14 November 2018. 

4. On 26 March 2019 Ms Toole lodged an objection to the care percentage decision and she also requested that special circumstances be considered when determining the date of effect of the objection decision.

5. On 24 May 2019, the objection was allowed.  The objections officer decided that there had been no change in care; that is, Ms Toole had 100% care of the child; and that special circumstances existed that prevented Ms Toole from lodging her objection within 28 days of the original decision and therefore the date of effect was from 20 July 2013.  The decision was not notified to the parents until 14 August 2019.

6. Mr Janssen applied to this tribunal for an independent review of the objections officer’s decisions.

7. A hearing into the application for review was held by the tribunal on 23 October 2019 in Hobart.  Mr Janssen and Ms Toole both participated in the hearing by conference telephone and both gave evidence under affirmation during the hearing.  They were assisted by an interpreter in Dinka.   

8. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975.  Mr Janssen also provided a written submission (A1 to A2).  The documents were exchanged with the parties prior to the hearing.

ISSUES

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula, which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked. If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones. The dates of effect of the revocations and therefore also of the new determinations depend on the date of the change and sometimes on whether the parent notified the Registrar within a reasonable time.

3. The issues to be considered by the tribunal are:

   ·       Should the existing determination of percentage of care be revoked? If so, from when should it be revoked?

   ·       Should a new determination of a percentage of care be made? If so, what is the percentage of care under the new determination? From when should it apply?

EVIDENCE

1. Ms Toole stated the following at the hearing:

   ·She has been fully responsible for the child since she was born; she has always been the carer of the child.  She noted that her mother has been very ill and was in hospital for some time.

   ·When she was pregnant she was living in [City 1] with her mother and Mr Janssen was living in [City 2].

   ·When the child was born Ms Toole was still on a bridging visa and Mr Janssen was an Australian citizen.

   ·Mr Janssen recommended to her that they apply for various Centrelink benefits (such as the baby bonus) on the basis that they were living together (as he was a citizen and she would not be entitled to benefits).  She did not think this was right and told the truth.

   ·She was able to get a special benefit payable to the child (Ms Toole’s evidence was not clear on this point).

   ·When the child turned three, Ms Toole was unable to access child care at an early learning centre as she was still on a bridging visa.

   ·A Centrelink employee advised her that, because she was living with her mother (who is a citizen), she should claim that the mother was caring for the child and then she would be able to access various benefits including the subsidised child care and family tax benefit.

   ·Her mother then claimed family tax benefit for the child.

   ·Ms Toole was made a permanent resident in August 2013.  She did not change the care arrangement with Centrelink then because she was still subject to an assurance period.

   ·In September 2016 she moved to [City 3] and left the child with her mother for about a month to enable her to settle into a new residence and obtain employment.

   ·She was made a citizen in 2017.

   ·When asked why she did not object to the Child Support decision made back in 2016, Ms Toole said she did not have a good understanding of English and she had not been able to obtain legal advice.  She was not aware she could get help from Legal Aid.

   ·She first went to Legal Aid in [City 3] in around March 2018.

   ·Her mother refused to claim child support from Mr Janssen.

2. Mr Janssen disputed that Ms Toole did not have sufficient English language skills in 2016 noting that she had been living in English speaking countries since 2002.

3. The following was taken from Child Support records including file notes of conversations with Ms Toole:

   ·On 3 March 2016 Child Support recorded that they contacted Ms Toole to say that they had been advised that [Child 1] left her care on 20 July 2013.  The file note states “Ms Toole confirmed she was on a bridging visa and could not send her daughter to school so she put her daughter in her mother’s care.  I explained to [sic] this is a considered a terminating event and has resulted in an OVP.  I advised Ms Toole Mr Janssen will have the option to gift, leave OVP for future liability or ask Rp to repay the CS.  I advised Ms Toole if [Child 1] returns to her care she will need to re-apply for child support as her case is now closed.”

   ·On 3 March 2016 a letter issued to Ms Toole stating that Mr Janssen was no longer required to pay her child support because the amount of time she cared for the child was not sufficient.  The letter contained details of how to object to the decision and that this needed to be done within 28 days.

   ·On 3 March 2016 a letter issued to Ms Toole stating that she had been overpaid $4,564.68 in child support and details about Child Support’s recovery options were provided.

   ·On 1 August 2016 Child Support have recorded that Ms Toole contacted them to advise [Child 1] was in her mother’s care and the mother would like to claim child support.  She said she lived with her mother too but ‘insists’ that her mother has 100% care of [Child 1] due to visa issues and the mother is getting child care and school benefits.  She was advised that she could apply to have the care changed given she lives in the same house.  Ms Toole stated that this was not the best option as she was moving out in about a month and the child would be staying with her mother.  She was advised that her mother could apply for child support as a third party.  She was to be transferred to someone to assist with Ms Toole’s mother applying for child support.

   ·On 2 May 2018 Ms Toole contacted Child Support again saying she wanted to claim child support.  She said that [Child 1] was recorded as being in her mother’s care however she has always lived with Ms Toole and Ms Toole incurred expenses for the child.  She said the reason the child was recorded as being with her mother was due to bridging visa issues.  She said it was just a formality that her mother was recorded as the carer.  She was advised that if the overpayment is correct they will need to collect that from her to repay the parent (Mr Janssen).

   ·On 7 May 2018 Ms Toole rang Child Support again and said she was unsure if she wanted to change the care “because her mother as a third party was getting a high payment for the children as she was on disability”.  She was again advised that if her mother was caring for [Child 1] then her mother could apply for child support.  Ms Toole said her mother did not want to do this.  She was advised that she needed to pay back the overpayment of $4,565.68.  Ms Toole said she would change the care so she could get child support.  She was advised that her overpayment would be reduced by payments owing to her by Mr Janssen.   This advice was given to her twice during the call.

   ·On 14 November 2018 Ms Toole rang Child Support again with a query about the overpayment and saying the child had always been in her care.  She was advised that the case had been terminated and she would need to reapply.  She was also advised that the overpayment would need to be paid to Mr Janssen.

   ·The new child support case application was made on 14 November 2018 and Ms Toole advised she wanted the debt offset against Mr Janssen’s liability.

   ·Child Support rang Mr Janssen on 23 November 2018 and he submitted that the child was being cared for by the grandmother; that Ms Toole had two jobs and so the grandmother had to care for the child.

   ·On 7 December 2018 Ms Toole’s legal representative from Legal Aid contacted Child Support and was advised that Ms Toole could object to the care change but she would be questioned as to why she waited three years.  The representative was sent various details about the case.

   ·On 28 February 2019 the representative contacted Child Support to see if Ms Toole had lodged her objection.

   ·On 26 March 2019 the objection was lodged on the basis that the child was being primarily cared for by Ms Toole’s mother but as Ms Toole had notified Centrelink of this change in care she assumed Child Support had been notified.  She said that had she known Centrelink had not informed Child Support; she would have arranged for her mother to apply for child support.  She said she found the system difficult to navigate and she had poor English at the time.  She thought it was unfair that she has to repay the child support as it was spent on the child.

   ·Child Support noted that there were no objection rights to the actual overpayment being raised.  Ms Toole was advised of this on 3 April 2019 and Ms Toole said [Child 1] was always cared for by Ms Toole.  Ms Toole was advised that changing the care would have family tax benefit debt issues for her mother.  She was advised a special circumstance application needed to be made (for late objection).  She said that she had poor English and even though she called Child Support several times to discuss the debt she could not find the words to explain her circumstances.  She stated that legal advice was too costly and she did not obtain advice until she was informed of Legal Aid.  Her lawyer assisted her in lodging the objection.

   ·On 30 March 2019 Ms [A] (the grandmother) signed a statutory declaration saying she was the carer of [Child 1] from 20 July 2013 to 8 November 2018 and she took up this care to enrol [Child 1] for early learning support.  She refused to apply for child support as Mr Janssen showed no respect to her family.

   ·Ms Toole’s taxable income has been around $40,000 to $50,000 over the years under review.

CONSIDERATION

1. The tribunal was satisfied that Ms Toole has always had [Child 1] in her care.  It is clear from the evidence that Ms Toole arranged for her mother to apply for care with Centrelink to enable Ms Toole to access family tax benefits and subsidised child care for [Child 1].  The fact is that apart from one month when Ms Toole was organising accommodation and employment in [City 3], Ms Toole has been living with her daughter, providing for her financially, and been responsible for parenting decisions.  The grandmother may have provided child minding at times (Ms Toole had two jobs) but this does not make her the carer.

2. The tribunal therefore decided that there had been no change in care; that is Ms Toole has always had 100% care of [Child 1].

3. The tribunal then considered what the date of effect of this decision should be.

4. Ms Toole lodged her objection to the original decision more than 28 days after the decision was made (three years after the decision was made). Subsection 87AA(1) of the Child Support (Registration and Collection) Act1988 (Registration and Collection Act) states that in such a case the date of effect is the date the person lodged the objection.  Ms Toole applied under subsection 87AA(2) of the Registration and Collection Act to extend the 28-day period due to special circumstances preventing her from lodging the objection on time.

5. In the Child Support Guide, at chapter 4.1.8, the Registrar sets out the policy for determining if special circumstances exist and states:

   In considering special circumstances the Registrar will look at the particular circumstances of the applicant. 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 an earlier date. 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. The tribunal accepts that English is Ms Toole’s second language and she was not fluent in English when the decision was made.  However it is clear that she made a deliberate decision to get her mother to lodge forms with Centrelink to say she was the carer of [Child 1] to enable Ms Toole to obtain financial benefits (family tax benefit and child care).  At the hearing Ms Toole was asked why she didn’t change the care back when she became a citizen and she said this was because she was still subject to an assurance period.  And on 7 May 2018 she told Child Support she still didn’t want to change the care because her mother received higher benefits as she was on disability support pension (Ms Toole is working). 

7. The tribunal decided that Ms Toole’s language issues did not prevent her from lodging an objection to the care change percentage.  It is clear from the evidence, particularly her conversation with Child Support on 1 August 2016, that she preferred to receive the financial benefits of having her mother registered as the carer than receive child support.   She decided to object when, on reapplying for child support, she was informed that she still owed the arrears and they would have to be repaid.  When she eventually lodged her objection she was still saying the child was in the care of the mother but she should not have to pay the child support arrears as she notified Centrelink of the change in care.  Her mother signed a statutory declaration to support the objection.

8. The tribunal decided that special circumstances did not prevent Ms Toole from lodging her objection earlier.  The date of effect of the tribunal’s decision is therefore from 26 March 2019.

DECISION

The tribunal affirms the decision that there was no change in care on 22 July 2013 and sets aside the decision about date of effect.  The tribunal decided that the date of effect of the care decision is 26 March 2019.