Marks and Bernard (Child support)

[2019] AATA 5134

Marks and Bernard (Child support) [2019] AATA 5134 (10 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016685

APPLICANT:  Ms Marks

OTHER PARTIES:  Child Support Registrar

Mr Bernard

TRIBUNAL:Member K Dordevic

DECISION DATE:  10 September 2019

DECISION:

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

• 30 May 2018 Ms Marks has 100% and Mr Bernard has 0% care of [Child 1];
• 12 July 2018 Mr Bernard has 100% care and Ms Marks has 0% care of [Child 1]; and
• 16 August 2018 Ms Marks has 100% and Mr Bernard has 0% care of [Child 1].

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decisions 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. Relevant to this application, Ms Marks and Mr Bernard are the parents of [Child 2], [Child 3] and [Child 1].  This application concerns the care arrangements of [Child 1] during the period 30 May to 12 December 2018.

2. On 30 May 2018 Ms Marks lodged an application with the Department of Human Services – Child Support (the Department) for an assessment in relation to [Child 2] and [Child 3].

3. On 4 June 2018 Mr Bernard advised the Department that [Child 1] was also a child relevant to the assessment of child support. On 5 June 2018 Mr Bernard advised that he had no overnight care of [Child 1].

4. On 21 December 2018 the Department accepted Ms Marks’ application and the assessment reflected that Mr Bernard had sole care of [Child 1] from 30 May 2018. The Department made a second care determination Ms Marks had sole care of [Child 1] from 21 July 2018.

5. On 6 March 2019 Mr Bernard objected to that decision. On 7 May 2019 an objections officer disallowed the objection.

6. Ms Marks sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 5 June 2019.

7. The matter was heard on 10 September 2019. Mr Bernard and Ms Marks appeared by conference telephone. In reaching its decision the tribunal considered the sworn evidence of Ms Marks and Mr Bernard as well as the documentation provided by the Department (folios 1–318). Following the hearing the tribunal took sworn evidence from Ms [A], psychologist.

ISSUES

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

2. The issue which arises in this case is [Child 1]’s care percentage that is applicable for each parent in the administrative assessment from 30 May 2018.

CONSIDERATION

1. Relevant to this application, section 50 of the Act provides for a care decision to be made if the parent has had, or is likely to have, a pattern of care during a period as the Registrar considered appropriate in the circumstances.

2. The tribunal finds that there are no parenting orders in place. The tribunal also finds that a terminating event occurred in relation to [Child 1] [in] December 2018, the date she turned 18 years of age. Thus, the tribunal must determine [Child 1]’s care arrangements during the period 30 May to [December] 2018.

3. It is beneficial to explicitly set out the decisions and notifications made to the Department from 30 May 2018 (the date of notification) to 21 December 2018 (the date of the original decision) as multiple care changes were reported. These reported care changes were all considered in both the original decision and the objection decision.  

4. The original decision, as affirmed by the objections officer, was that [Child 1] was in Mr Bernard’s 100% care from the start of the assessment (30 May 2018) to 20 July 2018, and then in Ms Marks’ 100% care from 21 July 2018 until  [December] 2018 (when [Child 1] turned 18).

5. On 30 May 2018 Ms Marks initially reported to the Registrar that [Child 1] was in her full time care. Later, she advised that [Child 1] moved to Mr Bernard’s full time care from 12 July 2018. The Registrar’s decision, affirmed on objection, was that [Child 1] was in Mr Bernard’s full time care from 30 May 2018. The Registrar refused to revoke that determination and make a new determination in respect of the 12 July 2018 care change reported by Ms Marks, because the Registrar had decided [Child 1] was already in Mr Bernard’s care prior to that date. Thus, the first and second decisions being reviewed by this tribunal are the first care determination made by the Registrar, and the Registrar’s refusal to make a second care determination in this period. The third decision under review is the Registrar’s second care determination, being that [Child 1] was in her mother’s 100% care from 21 July 2018. 

6. The parties have provided inconsistent evidence to the Department regarding the change to the children’s care arrangements. At hearing their testimony can be summarised as follows.

7. Ms Marks asserts that she had sole care of [Child 1] from 30 May 2018 until about 12 July 2018, when [Child 1] went to stay with her father. [Child 1] then returned to her home on 21 July 2018 to care for the parties’ younger children, as Ms Marks went on a cruise and returned on 2 August 2018. [Child 1] then stayed with her until 14 September 2018, when she returned to live with Mr Bernard. Following an argument, [Child 1] left Mr Bernard’s care and went to live with Ms Marks on a full time basis.

8. Mr Bernard states that during the period 30 May 2018 to 11 July 2018 he had no overnight care of [Child 1], but that the care should be considered as shared care as he was meeting the accommodation and food costs at Ms Marks’ home. He agreed that [Child 1] came into his full time care on 12 July 2018, as Ms Marks relocated to [Town 1] and [Child 1] wanted to remain in Sydney. He does not dispute that [Child 1] went to her mother’s home on 21 July 2018 to care for the parties’ younger children whilst Ms Marks was away. He stated that he went too, staying one night in Ms Marks’ home to assist in caring for the younger children and then locally for the duration of Ms Marks’ absence. He also does not dispute that [Child 1] stayed at her mother’s home until she returned to Sydney on 14 August 2018 and that following an argument she relocated to [Town 1] to live with her mother on 16 August 2018.

9. In support of his contentions Mr Bernard has provided two statutory declarations made by his parents, Mr Bernard and Ms Bernard, which state that he had sole care of [Child 1] from 14 May 2018 to 13 August 2018. Given their relationships and Mr Bernard’s contradictory testimony at hearing the tribunal gave little weight to their statements.

10. In support of her contentions, Ms Marks provided a letter from Ms [A], psychologist, dated 30 August 2018. Ms [A] states that she has been working with [Child 1] since February 2018, and that she understood that [Child 1] was residing with her mother and siblings in Sydney, and that there were periods when Mr Bernard lived at the home and other occasions when he was living in [Suburb 1]. She also understood that on 12 July 2018 Ms Marks relocated and [Child 1] remained in Sydney, living with her father. She also reported that [Child 1] advised her on 21 July 2018 that she relocated to her mother’s home. In her testimony to the tribunal Ms [A] confirmed that [Child 1] did live with her father when her mother moved to [Town 1] and that she went to [Town 1] for two weeks to care for her younger siblings whilst her mother was away. Her notes indicate that on 18 August 2018 [Child 1] advised that she had, or was intending to, relocate to [Town 1] and no longer live with her father.

11. After taking into account the parties’ testimony and having the benefit of Ms [A]’ testimony the tribunal is satisfied that Ms Marks had sole care of [Child 1] from 30 May 2018. The tribunal is not persuaded that Mr Bernard should be considered to have cared for [Child 1] from this date on the basis that he apparently contributed to her costs.

12. The tribunal is also satisfied that there was a change to the care arrangements on 12 July 2018, when [Child 1] then remained in Sydney in Mr Bernard’s sole care. The tribunal finds that there was a subsequent change to the care arrangements on 16 August 2018. Following a breakdown in their relationship, the decision was made that [Child 1] would relocate to [Town 1] and live with Ms Marks on a full time basis on this date. The tribunal is not persuaded that [Child 1] went into Ms Marks’ sole care prior to this date. That [Child 1] went to her mother’s home to care for her younger siblings in her mother’s absence does not in the tribunal’s view constitute a change to the care arrangements; in any event, as a matter of fact she was not in her mother’s care during the period 21 July to 2 August 2018. Furthermore, though [Child 1] may have stayed with her mother from 2 to 13 August 2018, the tribunal understands that it was always the intention that [Child 1] would return to Sydney to be in her father’s care. It was only on 16 August 2018, after [Child 1] and Mr Bernard’s relationship broke down, was there a change to [Child 1]’s pattern of care as she relocated to [Town 1] to live exclusively with her mother. 

13. Having reviewed the first care determination made by the Registrar, the tribunal finds that from 30 May 2018 Ms Marks has 100% care of [Child 1] pursuant to subparagraph 50(1)(a)(i) of the Act and Mr Bernard has 0% care of [Child 1] pursuant to subparagraph 49(1)(a)(i) of the Act.

14. Next, having considered the Registrar’s refusal to make a second care determination, the tribunal finds that the above determination must be revoked on 11 July 2018, and replaced with a determination that from 12 July 2018 Mr Bernard has 100% care of [Child 1] pursuant to subsection 50(2) of the Act and Ms Marks has 0% care of [Child 1]’s care pursuant to subsection 49(2) of the Act. The tribunal finds that Ms Marks notified of the change to this care arrangement on 7 August 2018; therefore, the date of effect of this care change is 12 July 2017 (pursuant to section 54H of the Act).

15. The tribunal then considered the third decision made by the Registrar and sets it aside, finding that [Child 1] entered Ms Marks’ 100% care on 16 August 2018 (and not 21 July 2018 as determined by the Registrar). Thus, the previous care determination is revoked on 15 August 2016 and replaced with a determination that from 16 August 2018 Ms Marks has 100% care of [Child 1] pursuant to subsection 50(2) of the Act and Mr Bernard has 0% care of [Child 1]’s care pursuant to subsection 49(2) of the Act. Ms Marks notified of the change to the care arrangements on 20 August 2018 (notwithstanding the fact that she stated that the care change occurred earlier than the tribunal has found). Thus, the date of effect of this care change is 16 August 2018 (pursuant to section 54H of the Act).

16. Subsection 87AA(1) of the Registration Act states that if a person lodges an objection to a decision more than 28 days after the original decision, date of effect of a favourable review is the date at which the objection application was lodged. However, subsection 87AA(2) of the Registration Act states that if there are special circumstances that prevented the person from lodging their claim, the Registrar, or in this case, the tribunal may extend that period. In this case Mr Bernard lodged an objection to the original decision made on 21 December 2018 on 6 March 2019.

17. As the tribunal understands it, Mr Bernard submits that his [surgery] in April 2018 impacted on his ability to negotiate with government agencies in a timely manner. He confirmed that he was advised of the decision, but did not receive a decision in writing. Furthermore, he submits that he was under the impression that he lodged an objection to the decision on 20 December 2018 and was waiting for a reply.  

18. Taking into account his evidence to the Department the tribunal is persuaded that Mr Bernard’s [surgery] and ongoing health difficulties constitutes a special circumstance that prevented him from lodging his claim at an earlier date than 6 March 2019. Thus, pursuant to subsection 87AA(2) of the Registration Act, the favourable determination takes effect on the date on which the care changes occurred (as outlined above).

DECISION

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

• 30 May 2018 Ms Marks has 100% and Mr Bernard has 0% care of [Child 1];
• 12 July 2018 Mr Bernard has 100% care and Ms Marks has 0% care of [Child 1]; and
• 16 August 2018 Ms Marks has 100% and Mr Bernard has 0% care of [Child 1].