Mandeville and Herdman (Child support)

[2024] AATA 879

Mandeville and Herdman (Child support) [2024] AATA 879 (1 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC027091

APPLICANT:  Ms Mandeville

OTHER PARTIES:  Child Support Registrar

Mr Herdman

TRIBUNAL:Member J Bakas

DECISION DATE:  1 March 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – no change to existing percentage of care determinations – decision under review affirmed

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. Ms Mandeville and Mr Herdman are the separated parents of [Child 1], in respect of whom a child support assessment is in place.

2. Ms Mandeville and Mr Herdman have had a registered child support assessment for [Child 1] since 1 October 2020.

3. On 20 April 2023 Services Australia (Child Support) made a decision to align its care records with Services Australia’s (Centrelink) and reflect the care of [Child 1] as 72% to Ms Mandeville and 28% to Mr Herdman.

4. On 11 July 2023 Mr Herdman lodged an objection to this decision as his position was that when Child Support registered their case on 1 October 2020, care of 58% to him and 42% to Ms Mandeville was agreed by both of them.

5. On 23 October 2023 Child Support allowed Mr Herdman’s objection and made the decision to reflect the care of [Child 1] as 58% to Mr Herdman and 42% to Ms Mandeville from 1 October 2020 to 30 June 2021 applied from 11 July 23 as Mr Herdman did not seek review within 28 days of the 20 April 2023 decision and no special circumstances were found preventing Mr Herdman from objecting within the required timeframe, pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988.

6. Ms Mandeville sought a review in the Tribunal on 21 November 2023.

7. The matter was heard on 13 February 2024. Ms Mandeville attended the hearing in person and Mr Herdman attended by MS Teams and both gave affirmed evidence.  At the hearing both parties confirmed receipt of documents provided by Child Support.

8. The Tribunal deferred its decision to provide Ms Mandeville an opportunity to submit further documents as well as to seek further information from Child Support.

9. The additional Child Support information was received on 28 February 2023.

10.Ms Mandeville provided further documents and submissions by 27 February 2024 and a copy was sent to Mr Herdman with an opportunity for him to provide written submissions in response. These were received by the Tribunal on 29 February 2023 and the Tribunal proceeded to make a decision.

11.A copy of all the additional material received was exchanged with the parties.

ISSUE

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

13.The issue which arises in this case is what care percentages reflect the likely pattern of care for [Child 1] from 1 October 2020?

CONSIDERATION

1. Child Support generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula includes a care percentage and an associated cost percentage for each parent in relation to each child.

2. Child Support decides each parent’s care percentage in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide each parent’s care percentage when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

3. Sections 49 and 50 of the Assessment Act require Child Support, or here the Tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support is otherwise advised.

4. The term “pattern of care” is not defined in the legislation.  It involves an examination of a person’s future likely care.  The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). The government policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the 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 and the Tribunal can determine a different care period.

What care percentages reflect the likely pattern of care for [Child 1] from 1 October 2020?

1. I note that the hearing papers and the evidence of the parties at the hearing indicate there has been a change of care on 26 December 2022 and again on 29 January 2023 which is now 100% to Ms Mandeville. However, these subsequent care events are not before the Tribunal. The Tribunal needs to consider what the correct or preferable decision is in regard to the likely pattern of care at the start of the assessment on 1 October 2020, which would stay in place until there is a further care change.

2. As detailed above, Child Support made a decision on 20 April 2023 to align the care with Centrelink.  However, the hearing papers contained very little detail as to the evidence or material on which the findings leading to this decision were based on. 

3. On 13 February 2023, the Tribunal ordered Child Support to provide an additional statement regarding the following:

   1. Pursuant to subsection 38 of the Administrative Appeals Tribunal Act 1975, I order the Child Support Registrar to lodge an additional statement with the Tribunal containing further and better particulars in relation to the decision made on 20 April 2023 (to align Child Support care records with Centrelink) including a reference to the evidence or other material on which the findings leading to the decision were based and the particulars of the reasons for the decision.

   2.     The Registrar is reminded of the obligation under section 37 of the Act to provide a copy of every document that is in the Registrar’s possession or under the Registrar’s control that is relevant to the review of the decision, and notes that no documents appear to have been provided in relation to the decision of 20 April 2023. The Registrar is invited to rectify that oversight or point the Tribunal to the relevant pages in the hearing papers.

4. Unfortunately, the material provided by Child Support related to the later care decisions referred to above. As such, there was very little explanation before the Tribunal to explain the 20 April 2023 decision.

5. Ms Mandeville’s evidence and submissions included the following:

   ·She was very stressed about her situation and thought Centrelink would sort things out for her.

   ·She was not sure about the type of evidence she would need to dispute this matter until she saw the evidence provided by Mr Herdman in the hearing papers.  As such, she sought additional time to provide further material to support her position.

   ·She did not keep a care calendar.

   ·She was subject to domestic violence which has been recognised by Centrelink.

   ·She would like all of the evidence for the whole care period to be examined again. In particular, she feels Child Support neglected to consider her position.

6. Mr Herdman’s evidence and submissions included the following:

   ·He was not aware that Centrelink had a different care percentage recorded as he does not receive any letters from Centrelink. As far as he was concerned, Centrelink changed the care percentages without any evidence.

   ·When they first registered their child support case they had agreed that the care of [Child 1] was 58% to Mr Herdman and 42% to Ms Mandeville

7. I note that the hearing papers show that both Ms Mandeville and Mr Herdman were sent letter from Child Support at the beginning of the child support assessment with child support payments calculated on the care of [Child 1] being 58% to Mr Herdman and 42% to Ms Mandeville, such as at page 38 of the hearing papers.  I sought from Ms Mandeville an explanation as to why she did not dispute this at the time or at any of the subsequent times that Child Support sent notices detailing that care continues as 58% to Mr Herdman and 42% to Ms Mandeville, and she stated that she was stressed at that time.

8. I also note that both parties provided letters of support from friends and colleagues regarding their respective care arrangements.

9. I considered all of the evidence before me and I find that much of the additional material provided by the parties is not directly relevant to the likely care at the commencement of the child support assessment.

10. Further, the material received from Child Support did not shed any light onto the decision by Centrelink to record care of [Child 1] as 72% to Ms Mandeville and 28% to Mr Herdman.

11. I considered all of the evidence before me and I find there is insufficient evidence before me to alter the care percentages that were in place from 1 October 2020.

12. I am satisfied that the likely pattern of care from the start of the child support assessment dated 1 October 2020 reflects a care percentage of being 58% to Mr Herdman and 42% to Ms Mandeville, which is the percentage of care found by the objections officer, to be applied from 11 July 2023 which was the date that Mr Herdman objected to the 20 April 2023 decision.

13. For the sake of completeness, I note that as I have affirmed the decision of the objections officer, I do not need to consider 95N of the Registration and Collection Act in relation to Ms Mandeville’s application to the Tribunal not being lodged until 21 November 2023.

DECISION

The decision under review is affirmed.