Mallinson and Mallinson (Child support)

[2018] AATA 1717

Mallinson and Mallinson (Child support) [2018] AATA 1717 (10 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC013455

APPLICANT:  Mr Mallinson

OTHER PARTIES:  Child Support Registrar

Miss Mallinson

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  10 April 2018

DECISION:

(a)The Tribunal sets aside the decision under review and, in substitution, decides that from 19 August 2017 Mr Mallinson had 75 per cent care and Miss Mallinson had 25 per cent care of [Child 1] and [Child 2]; and

(b)The Tribunal declines to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the decision in (a) above is 7 February 2018.

CATCHWORDS
Child support - Percentages of care - Change in the likely pattern of care - Decision under review set aside and substituted - Late lodgement of the application for review - Special circumstances did not prevent the late lodgement - Refusal to make a determination under subsection 95N(2) - Date of effect of the Tribunal’s decision is the date application for review was lodged

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 Mallinson and Miss Mallinson are the parents of [Child 1] (born October 2009) and [Child 2] (born April 2012). Child support was registered for assessment on 16 March 2015 and Mr Mallinson is the liable parent.

2. From 16 March 2015 the child support assessment reflected Miss Mallinson as having 100 per cent care and Mr Mallinson as having 0 per cent care of the children.

3. On 19 August 2017 Mr Mallinson notified the Department of Human Services, Child Support (the Child Support Agency) there had been a change of care for the children with Mr Mallinson providing 75 per cent care and Miss Mallinson 25 per cent care for the past six to nine months.

4. On 21 September 2017 the Child Support Agency made the decision to accept the change of care as advised by Mr Mallinson from 19 February 2017 but with effect from 19 August 2017 (the date of notification).

5. On 5 October 2017 Miss Mallinson objected to this decision and on 7 December 2017 the Child Support Agency allowed the objection and made the decision to record that Miss Mallinson had 78 per cent care of the children and Mr Mallinson 22 per cent care from 19 February 2017 (the objection decision).

6. On 7 February 2018 Mr Mallinson applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection decision.

7. The Tribunal conducted a hearing into the application on 10 April 2018. Mr Mallinson and Miss Mallinson gave evidence on affirmation by conference telephone. The Child Support Agency provided the Tribunal and the parents with papers relevant to the matter (166 pages). Miss Mallinson provided additional documents prior to the hearing and this was distributed to the parties (B1-B23).

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.

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 a new care determination 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 existing percentages of care to be revoked and new care determinations to be made; and

   ·       if so, from what date should the new percentage of care determination take effect?

CONSIDERATION

1. Mr Mallinson told the Tribunal that following separation in 2015 he had supervised visits with [Child 1] and [Child 2] until the court made an order allowing him access every second weekend. Mr Mallinson said the court order had never really been adhered to and no longer applied.

2. Mr Mallinson said Miss Mallinson only had the children when it suited her and there was no stability in her life. He said he would often pick up the children on a Friday and then could not contact Miss Mallinson when it came time to return them to her care on a Sunday. He said this situation just became worse and worse until the point where he not only had the children every weekend but his sister and mother were also caring for the children the majority of the time. Mr Mallinson said he was providing clothing, food, entertainment and schooling for the children and he also paid his sister to look after them when he could not.

3. The Tribunal notes in evidence provided by the Child Support Agency a copy of consent orders provided by [a law firm], on 23 November 2015. The orders state Mr Mallinson is to spend time with the children “each alternate weekend from 5.00PM Friday to 5.00PM Sunday” and “Such further time as the parties shall agree”.

4. Mr Mallinson said quite often when Miss Mallinson did have the children they would not attend school. As proof of this Mr Mallinson pointed to evidence provided by Miss Mallinson in the form of several text messages from the school which ask why either [Child 1] or [Child 2] is absent from school.

5. The Tribunal asked Mr Mallinson how he had calculated the level of care of 75 per cent to him and 25 per cent to Miss Mallinson. Mr Mallinson said that was his calculation of the amount of care he had of the children along with his sister and his mother. He said the children would stay with his sister for two to three nights a week and if he was not working the children would stay with him. He said his sister’s daughter and his daughter were in the same class at primary school so this arrangement worked well. He reiterated the court order had never been complied with. He said he was trying to be fair to Miss Mallinson but the children did not stay with her regularly because of her drug habit and her lifestyle. He said sometimes [Child 1] and [Child 2] would stay with Miss Mallinson for a couple of nights but not regularly, and even when they did stay with her, his sister would always have to pick them up and take them to school.

6. The Tribunal notes in evidence provided by the Child Support Agency copies of third party statements from Mr Mallinson’s sister [Ms A] and Mr Mallinson’s mother [Ms B].

7. In her unsigned statement, dated 21 September 2017, [Ms A] advises she takes the children to school and picks them up on behalf of Mr Mallinson and has done so for at least the last 12 months. She also states the children stay with her “during the week at least 2-3 nights” and she prepares them for school each day even if they are in the care of their mother. [Ms A] says Mr Mallinson transfers money to her as needed as she can’t afford to do this.

8. In her unsigned statement, dated 21 September 2017, [Ms B] advises she looks after the children where possible and sometimes the children will stay with her to ease the pressure on her daughter [Ms A]. She states Mr Mallinson comes over most afternoons to care for the children and spends time with them and also takes the children as much as he can, being most weekends.

9. Miss Mallinson disagreed with Mr Mallinson and told the Tribunal the court order was very clear in relation to care of the children. She said Mr Mallinson had care of [Child 1] and [Child 2] every second weekend and by agreement with her for half the school holidays. She said this arrangement had been in place since the court order took effect. Miss Mallinson said on the weekends when Mr Mallinson was to have care of the children his sister or mother would usually pick them up on a Friday and drop them back on a Sunday around 5:00 pm.

10. The Tribunal discussed with Miss Mallinson the two third party statements she provided to the Child Support Agency in support of her level of care for the children.

11. The first statement, dated 28 September 2017, is from [Ms C] whom Miss Mallinson described as a godmother or aunty to the children. [Ms C] advises in her statement that she has seen and stayed regularly with Miss Mallinson and that Miss Mallinson “has always had full time care of both her children, since fleeing [Town 1] in 2015”.

12. The second statement, dated 29 November 2017, is from [Ms D]. [Ms D] advises in her statement that she has known Miss Mallinson since 2005 and Miss Mallinson has had “full custody of both her children” since leaving her husband due to domestic violence in February 2015. [Ms D] states she has been in contact with Miss Mallinson at least two to three times a month by phone and can hear the children quite clearly in the background.

13. Miss Mallinson told the Tribunal that [Ms D] was [a particular occupation] in [Town 1] and she would speak to her more often than [Ms C] and so [Ms D] would know more about her situation and the care of the children.

14. The Tribunal also asked Miss Mallinson about the evidence she provided to the Child Support Agency in the form of receipts for 18 Uber trips dated between February and November 2017. Miss Mallinson explained that as she did not have a car during this time, Mr Mallinson’s sister would often pick up the children for school but sometimes she would take them in an Uber. Miss Mallinson said the [school] was “just around the corner” from where she lived but she would take them in an Uber if it was raining. The Tribunal notes that the Uber receipts are for amounts varying from $7.00 to $34.00 and none appear to be during school drop off or pick up times.

15. Based on the evidence provided the Tribunal is satisfied there has been a change in the pattern of care for [Child 1] and [Child 2]. Both parents agree that care is no longer 100 per cent to Miss Mallinson.

16. 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 determination must be revoked and replaced by a new percentage of care determination.

17. Mr Mallinson states he had at least 75 per cent care for the six to nine months before he notified the Child Support Agency of the change of care on 19 August 2017. Miss Mallinson states that care has consistently remained in line with the court order with Mr Mallinson having care every second weekend and an additional week during the school holidays.

18. Both parents have provided statements from third parties supporting their claimed level of care. Miss Mallinson asked the Tribunal to give more weight to the statement from [Ms D], however, [Ms D] has only heard the children in the background and has no first-hand knowledge of the care arrangements. The Uber receipts provided by Miss Mallinson as evidence she takes the children to school on occasion do not support this claim.

19. Although the Tribunal finds it difficult to make a decision based on the contradictory views of both parents, the Tribunal prefers the evidence given at hearing by Mr Mallinson. The Tribunal finds the evidence provided by Miss Mallinson to be less convincing. The Tribunal therefore finds Mr Mallinson has 75 per cent care and Miss Mallinson has 25 per cent care of [Child 1] and [Child 2].

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

21. Subsection 54F(2) of the Act sets out when the revocation of the determination takes effect. The date of effect depends on whether or not the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal finds that Mr Mallinson notified the Child Support Agency of the change in care on 19 August 2017 which is more than 28 days after the change occurred six to nine months before that date.

22. Therefore, revocation of the existing determination takes effect in accordance with paragraph 54F(2)(c) of the Act on 18 August 2017.

New care percentage decision

1. Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Mr Mallinson and Miss Mallinson under section 50 of the Act.

2. For the reasons outlined above the Tribunal finds that Mr Mallinson provides 75 per cent care and Miss Mallinson provides 25 per cent care of [Child 1] and [Child 2] from 19 August 2017.

Date of effect of new care percentage decision

1. Section 95N of the R&C Act determines the date of effect of a Tribunal decision to set aside a care percentage decision. Mr Mallinson applied to the Tribunal on 7 February 2018 for a review of the 7 December 2017 objection decision by the Child Support Agency. As his application was not within 28 days of receiving notice of the objection decision, the date of effect of any new decision by the Tribunal is the date he applied for review.

2. The Tribunal may extend the 28 days if there are special circumstances that prevented Mr Mallinson from applying for review within this period. While the R&C Act does not define “special circumstances”, in relation to a similar provision in subsection 87AA(2) of the R&C Act, the Child Support Guide at 4.1.8 provides some guidance and states the circumstances must be “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”. Examples include the parent being seriously ill, suffering a personal trauma, a natural disaster causing damage to the parent’s property or communication difficulties.

3. In discussing this matter at hearing, Mr Mallinson told the Tribunal as soon as he was aware he could apply to the Tribunal for a review he did, although it took him time to prepare his evidence.

4. The Tribunal notes in correspondence from the Child Support Agency dated 7 December 2017 Mr Mallinson was advised of the requirement to seek a review within 28 days of receiving that correspondence. Furthermore, Mr Mallinson was reminded verbally of his appeal rights in conversation with the Child Support Agency on 7 December 2017 and 19 January 2018.

5. The Tribunal finds there were no special circumstances preventing Mr Mallinson from applying for review within the time frame prescribed. Accordingly the Tribunal will not extend the 28 day period and its decision is effective from the date of Mr Mallinson’s application, being 7 February 2018.

DECISION

(a)The Tribunal sets aside the decision under review and, in substitution, decides that from 19 August 2017 Mr Mallinson had 75 per cent care and Miss Mallinson had 25 per cent care of [Child 1] and [Child 2]; and

(b)The Tribunal declines to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the decision in (a) above is 7 February 2018.