Kershaw and Fehrman (Child support)

[2022] AATA 3962

Kershaw and Fehrman (Child support) [2022] AATA 3962 (11 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024159

APPLICANT:  Mr Kershaw

OTHER PARTIES:  Child Support Registrar

Ms Fehrman

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  11 October 2022

DECISION:

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Kershaw provides 97 per cent care and Ms Fehrman provides 3 per cent care of [Child 1] and [Child 2] from 29 July 2021.

(b) The Tribunal determines, pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, that subsection 95N(1) of that Act applies as if the reference to 28 days in that subsection was a reference to a longer period such that Mr Kershaw’s application for review in this matter was lodged within that period.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review set aside and substituted

CHILD SUPPORT – date of effect provisions – sent back with directions about date of effect – date of effect of the tribunal’s decision – late application for review – whether there were special circumstances that prevented the application for review being lodged in time – special circumstances exist – tribunal decides 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 is about a change to the percentage of care determinations for Mr Kershaw and Ms Fehrman in respect of their children [Child 1] (born November 2014) and [Child 2] (born December 2017). There has been a child support assessment in place since 16 November 2020.

2. From 1 October 2019 the child support assessment reflected Mr Kershaw as having 50 per cent care and Ms Fehrman as having 50 per cent care of [Child 1] and [Child 2].

3. On 29 July 2021 Ms Fehrman notified the Child Support Agency of a change to the care arrangements stating that she provides 21 per cent care and Mr Kershaw provides 79 per cent care of the children from 29 July 2021.

4. On 29 July 2021 the Child Support Agency made the decision to reflect that Ms Fehrman provides 21 per cent care and Mr Kershaw provides 79 per cent care of [Child 1] and [Child 2] from 29 July 2021.

5. On 25 January 2022 Mr Kershaw objected to this decision and on 21 March 2022 the Child Support Agency disallowed the objection (the objection decision).

6. On 24 June 2022 Mr Kershaw applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 8 September 2022.  Mr Kershaw gave evidence on affirmation by Microsoft Teams audio.  The Tribunal wrote to Ms Fehrman on 9 August 2022 advising her the application for review would be heard on 8 September 2022 at 3:30 pm.  On 5 September 2022 and on 7 September 2022 the Tribunal sent Ms Fehrman a SMS text message reminding her of the details of the hearing.  The Tribunal attempted to contact Ms Fehrman on the day of the hearing but was unsuccessful.  Ms Fehrman did not participate in the hearing. 

8. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (95 pages).  Prior to the hearing the Tribunal also received additional information from Mr Kershaw and copies were distributed to the parties (A1–A8).

9. At hearing the Tribunal agreed Mr Kershaw could provide additional information that was relevant to the matter under review.  This was received on 14 September 2022 (A9–A12).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] and [Child 2] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Kershaw told the Tribunal that care of the children was arranged informally based on verbal agreement between the parents.  Mr Kershaw said after the parents separated in August 2018 care of [Child 1] and [Child 2] was initially shared equally but this diminished over time to the point where Ms Fehrman was having almost no care of the children at all.

2. Mr Kershaw said around 29 July 2021 the parents agreed to a new care arrangement where Ms Fehrman was supposed to have care of three nights a fortnight.  Mr Kershaw said under this new pattern Ms Fehrman was to have the children every second week from Friday after work until Monday morning after she took [Child 1] to speech therapy.  He said this pattern of care never occurred and Ms Fehrman had care of no more than one night per month.

3. Mr Kershaw explained that he would make arrangements with Ms Fehrman in relation to care of the children which she did not keep and he described her care as sporadic at best.  Mr Kershaw said he tried to facilitate the children spending time with their mother but without success.  Mr Kershaw pointed out that he was not working at the time and so effectively had 100 per cent care.  Mr Kershaw added that he had provided statements from third parties to the Tribunal which supported the level of care he was having of [Child 1] and [Child 2].

4. The Tribunal notes in evidence provided by Mr Kershaw third-party statements from [Mr A], [Ms B], [Mr C], [Ms D], [Mr E], [Ms F] and [Ms G] in relation to the care of the children.

5. The statement from [Mr A] is dated 27 January 2022 and states that Mr Kershaw, his brother, has been the sole carer of the children for the “last 18 months”.  The statement from [Mr C], a family friend, is dated 2 February 2022 and states that Mr Kershaw has 95 per cent care of the children but does not provide a date from when this care commenced.  The statement from [Mr E], Principal at [State School], is dated 24 June 2022 and states that school records indicate [Child 1] lives with Mr Kershaw and is dropped off and collected by Mr Kershaw.  The statement from [Ms F], a clinical psychologist treating [Child 1], is dated 27 June 2022.  [Ms F] states that [Child 1] has attended 13 sessions since August 2021 and Mr Kershaw has brought [Child 1] to all sessions.  [Ms F] also points out that until [Child 2] started kindergarten he was also attending appointments as there was no alternative care available.  The statement from [Ms G], a speech therapist treating [Child 1], is dated 8 August 2022.  [Ms G] states that [Child 1] currently attends fortnightly speech therapy with his father.  The statement from [Ms B] relates to [Child 2]’s attendance at kindergarten from the commencement of 2022 and is not relevant to the care period under consideration.  The statement from [Ms D], who cares for the children, is undated and states Mr Kershaw has had 95 per cent care since the parents separated.

6. Ms Fehrman did not participate in the hearing and so the Tribunal was unable to discuss care of the children with her.  The Tribunal notes Ms Fehrman did not participate in the objection process and did not provide any evidence to the Child Support Agency.

7. Mr Kershaw has told the Tribunal the care Ms Fehrman was having of the children decreased over time following separation in 2018.  Mr Kershaw has explained that when Ms Fehrman notified the Child Support Agency of a change to the care arrangements he agreed because he thought she would adhere to having care of three nights a fortnight.  Mr Kershaw has argued this never happened and he has effectively had 100 per cent care of the children with Ms Fehrman providing care of no more than one night a month.

8. The third-party statements provided by Mr Kershaw do not confirm exactly when care of [Child 1] and [Child 2] changed.  The statements do, however, indicate that Mr Kershaw has been providing the majority of care for the children since at least 29 July 2021.  Mr Kershaw has acknowledged that Ms Fehrman provides limited care of one night per month.

9. The Tribunal is satisfied that, on balance, Mr Kershaw provides 97 per cent care and Ms Fehrman provides 3 per cent care of [Child 1] and [Child 2] from 29 July 2021.

10. The existing percentages of care reflected in the assessment for [Child 1] and [Child 2] 50 per cent care to Mr Kershaw and 50 per cent care to Ms Fehrman. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

11. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

12. The Tribunal finds that Ms Fehrman notified the Child Support Agency of the change in care on 29 July 2021 which is less than 28 days after the change occurred on 29 July 2021. According to paragraph 54F(3)(a) of the Act, the existing care determinations are therefore revoked on the day before the change of care day.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Kershaw and Ms Fehrman under section 50 of the Act.

2. The Tribunal finds that Mr Kershaw provides 97 per cent care of [Child 1] and [Child 2] and Ms Fehrman provides 3 per cent care from 29 July 2021.

Date of effect of new care percentage determinations

1. Section 95N of the R&C Act determines the date of effect of a Tribunal decision to set aside a care percentage decision.

2. Mr Kershaw applied to the Tribunal on 24 June 2022 for a review of the objection decision made by the Child Support Agency on 21 March 2022.  The Tribunal is satisfied Mr Kershaw was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 21 March 2022.  Given his application to the Tribunal was not within 28 days of receiving notice of this objection decision, the date of effect of any new decision by the Tribunal is the date he applied for review.

3. The Tribunal may extend the 28 days if there are special circumstances that prevented Mr Kershaw from applying for review within this period. While the R&C Act does not define special circumstances, the ‘Child Support Guide’ at 4.1.8 provides some clarification. It states the circumstances must be “sufficiently special for the applicant to receive the benefit of an extension”.

4. Although not bound by policy as set out in the ‘Child Support Guide’, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

5. Mr Kershaw told the Tribunal he was unwell and had ongoing health issues.  Mr Kershaw explained that he had a long-term condition which contributed to his inability to deal with his own health as well as the health of his children and other matters including child support. Mr Kershaw said he struggled with anxiety and was under medication.

6. Following the hearing Mr Kershaw provided the Tribunal with a medical certificate dated 10 May 2022 stating he has fibromyalgia.  Mr Kershaw also provided consultation notes dated 2 September 2022 from his current GP stating “Mr Kershaw is a new patient presenting today for a new patient evaluation.  He has a history of depression, anxiety, fibromyalgia, PTSD who is looking for long term continuity of care”.

7. The Tribunal notes the government website Healthdirect Australia, a public health information service, describes fibromyalgia as, “…a chronic condition that causes generalised pain and muscle stiffness in many parts of the body. Other common symptoms are extreme tiredness and sleeping poorly.  Some people also feel vague and confused at times.”[1]

   [1] >

   The Tribunal accepts the medical condition Mr Kershaw struggles with could cause a delay in responding to child support matters. 

8. The Tribunal finds there were special circumstances preventing Mr Kershaw from applying for review within the timeframe prescribed.  Accordingly, the Tribunal will extend the 28-day period such that his application for review was received within the prescribed period.

9. On 25 January 2022 Mr Kershaw objected to the original care decision made by the Child Support Agency. His objection was disallowed. It appears, according to the evidence provided, that Mr Kershaw submitted his objection outside the required timeframe. As this decision made by the Tribunal will apply in substitution of the objection decision made by the Child Support Agency the date of effect of the Tribunal decision is in accordance with subsection 87AA(1) of the R&C Act. The Child Support Agency may, under certain circumstances, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days was a reference to such longer period as determined to be appropriate. To do so requires the Child Support Agency to make an original decision which the Tribunal is unable to make in the current proceedings.

DECISION

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Kershaw provides 97 per cent care and Ms Fehrman provides 3 per cent care of [Child 1] and [Child 2] from 29 July 2021.

(b) The Tribunal determines, pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, that subsection 95N(1) of that Act applies as if the reference to 28 days in that subsection was a reference to a longer period such that Mr Kershaw’s application for review in this matter was lodged within that period.