Malley and Fordham (Child support)

[2018] AATA 1716

Malley and Fordham (Child support) [2018] AATA 1716 (27 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013470

APPLICANT:  Mr Malley

OTHER PARTIES:  Child Support Registrar

Ms Fordham

TRIBUNAL:Member J Longo

DECISION DATE:  27 April 2018

DECISION:

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

• To refuse to revoke the determination of care. This means that Mr Malley percentage of care of 100% for [Child 1] and Ms Fordham’s percentage of care of 0% for [Child 1] remain in place.

• To make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the tribunal’s decision is 16 March 2017 (when Ms Fordham notified of a change in care).

CATCHWORDS
Child support - Percentages of care - No change in the likely pattern of care - Decision under review set aside and substituted - Late lodgement of the application for review - Special circumstances prevented the late lodgement - Determination made 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. Mr Malley and Ms Fordham are the parents of [Child 1]. Ms Fordham is the parent liable to pay child support.

2. The Department of Human Services – Child Support (the Department) had previously recorded that [Child 1] was in Mr Malley’s 100% care from 1 December 2016 with effect from 3 January 2017.

3. Ms Fordham contacted the Department on 16 March 2017 and stated that there had been a change in the care and that the care had changed to 42% (156 nights) for Ms Fordham and 58% (209 nights) for Mr Malley for [Child 1].

4. On 26 June 2017 the Department amended the percentage of care for [Child 1] to indicate that Ms Fordham had 42% care and Mr Malley had 58% care. On 12 July 2017 Mr Malley lodged an objection to the decision of the Department. On 13 October 2017, an objections officer decided to disallow Mr Malley’s objection.

5. On 9 February 2018 Mr Malley lodged an application to this tribunal for a review of the decision. The hearing took place on 27 April 2018. Mr Malley and Ms Fordham participated in the hearing via conference telephone and gave sworn evidence to the tribunal. In making its decision the tribunal took into consideration the documents (numbered 1 to 240) provided by the Department, which were also sent to Ms Fordham and Mr Malley. Ms Fordham provided additional documents (B1 to B6) prior to the hearing, which have been provided to Mr Malley.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [Child 1]?

1. Mr Malley stated that he had the care of [Child 1] for 100% during the period from 1 December 2016. From 1 March 2017, he calculated that [Child 1] spent around 19 nights in Ms Fordham’s care over this period. He had stated to the Department that [Child 1] was in Ms Fordham’s care three nights per week, but this was prior to the period, and then ultimately [Child 1] stopped going to Ms Fordham’s home. He had completed a calendar of the care arrangements in July 2017, which was a record of the dates he had kept on his phone. Mr Malley stated that [Child 1] was in Ms Fordham’s care on the following dates:

   ·     1, 2, 3 March

   ·     14, 15, 16, 17, 20, 21, 28, 29, 30 April

   ·     5, 6, 12, 17 May

   ·     1, 2, 3, 4, 5 June

2. The tribunal notes that the dates provided total 21 nights of care. Mr Malley did not dispute this amount, but stated that this was the extent of Ms Fordham’s care during this period. Mr Malley stated that he provided information about [Child 1’s] Myki card which shows where she would get off the train, and this also supports his statement as to the level of care he provided. He also referred to the third-party statements, which also support his level of care.

3. Ms Fordham’s evidence was that [Child 1] was in her care three nights per week from Wednesday to Saturday during this period. She stated that she did not keep a calendar or record of when [Child 1] was in her care. Ms Fordham referred to third party statements which support her evidence of the level of care during this period.

4. Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to [Child 1] be revoked?

1. Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children.

2. In this case, the tribunal has determined that a care determination was made under section 49 of the Act from 1 December 2016 that Ms Fordham had a percentage of care for [Child 1] of 0%, and that under section 50 of the Act Mr Malley had a percentage of care of 100%. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care, the tribunal must determine the care during the care period. “Actual care” may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

3. The tribunal is required to consider what the actual care of [Child 1] was or is likely to be during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal, but the tribunal has determined that it is appropriate to consider the policy in the circumstances of this matter. 

4. Ms Fordham’s submission to the tribunal was that [Child 1] was in her care 42% of the time from 1 March 2017. Mr Malley stated that [Child 1] had spent some time with Ms Fordham during this period but remained in his care. The tribunal has considered the evidence provided by both Mr Malley and Ms Fordham and prefers, on balance, Mr Malley’s evidence of [Child 1’s] care during this period.

5. The tribunal has determined that the care for [Child 1] accords with the determination of care already used by the Department, and that Mr Malley percentage of care was 100% for [Child 1] and Ms Fordham’s was 0%. As the tribunal has concluded that the care percentages were the same as Mr Malley and Ms Fordham’s determined care percentages from 1 December 2016, with effect from 3 January 2017, paragraph 54F(1)(d) of the Act is not satisfied. In the circumstances the tribunal cannot revoke the existing determinations of percentages of care as there has been no change in the care percentages as determined by the Department.

Date of effect of the tribunal’s decision

16.Section 95N of the Child Support (Registration and Collection) Act 1988 provides that a review decision will have effect from the date the application for review was made if the application was lodged more than 28 days after the objection decision was given. However, if there are special circumstances that prevented the person from lodging the application within the 28 days, the tribunal may allow for a longer application period.

1. The tribunal notes that there was an application before the tribunal regarding another care change made in July 2017. It would seem from the information provided in the Department records, Mr Malley thought that the proceedings already before the tribunal related to the earlier decision of care, which is the subject of these proceedings, and subsequently did not lodge a request for review. The tribunal is therefore satisfied that there are special circumstances which prevented the lodgement, and the discretion contained in section 95N should be exercised. Accordingly, the date of effect of the tribunal’s decision in respect of care will be 16 March 2017, the date Ms Fordham notified the Department of a change in care.

DECISION

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

• To refuse to revoke the determination of care. This means that Mr Malley’s percentage of care of 100% for [Child 1] and Ms Fordham’s percentage of care of 0% for [Child 1] remain in place.

• To make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the tribunal’s decision is 16 March 2017 (when Ms Fordham notified of a change in care).