Marson and Child Support Registrar (Child support)

[2018] AATA 4149

Marson and Child Support Registrar (Child support) [2018] AATA 4149 (6 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014175

APPLICANT:  Ms Marson

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member K Dordevic

DECISION DATE:  6 September 2018

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Ms Marson had 0% and Mr Marson had 100% care of [Child 1], [Child 2] and [Child 4] during the period 18 September to 30 October 2015. The date of effect of this decision is 24 May 2018.

CATCHWORDS
CHILD SUPPORT – percentage of care – whether the likely pattern of care changed – decision to revoke existing determination of percentage of care and make a new determination – decision under review set aside and substituted – application for review lodged late – whether there were special circumstances– decision not 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 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 Marson and Mr Marson are the parents of [Child 1] (born 2003), [Child 2] (born 2006), [Child 3] (born 2010) and [Child 4] (born 2012). The most recent child support assessment has been in place since 13 April 2015. The assessment was based on Ms Marson having sole care of the children.

2. On 25 October 2015 Mr Marson advised the Department of Human Services – Child Support (the Department) that there was a change to the care arrangements and that he had sole care of [Child 1], [Child 2] and [Child 4] (the children) from 5 September 2015 as [Child 3] had been admitted to hospital for unexpected [surgery] on 6 September 2015.

3. On 7 December 2015 the Department determined that Ms Marson had nil care and Mr Marson had 100% care of the children from 6 September to 30 October 2015 (with the date of effect being 25 October 2015) and that from 31 October 2015 Ms Marson had sole care of the children.

4. Ms Marson sought a review of this decision. On 12 February 2016 an objection officer disallowed her objection.

1. On 24 May 2018 Ms Marson lodged an application with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal).

2. The hearing took place on 6 September 2018. Ms Marson participated in the hearing by conference telephone. Mr Marson did not elect to be added as a party to the proceedings. Prior to the hearing, the tribunal was provided with documents from the Department marked folios 1-302.

ISSUES

1. The statutory provisions relevant to this review are the Child Support (Assessment) Act 1989 (the Act).

2. The issues which arise in this case are:

   ·Has there been a change to the care percentages? and

   ·What is the date of effect of the change?

CONSIDERATION

1. Relevant to this matter, section 50 of the Act requires the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances.  The primary decision-maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter.

10.  The tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same – what was the pattern of care up until the date of notification and what was likely to occur thereafter? If there is a divergence from what was considered likely to happen, a parent can notify the Department and a new care determination can be made from the date of divergence.

11.  It is not in contention that prior to Mr Marson’s notification, there are court orders in place dated 26 July 2015 which stated that Mr Marson would have three nights care of [Child 1], [Child 2], [Child 3] and [Child 4] each fortnight, though the Department was not advised of this change in care. Instead, the child support assessment was calculated on the basis that that Ms Marson had sole care of [Child 1], [Child 2], [Child 3] and [Child 4].

12.  The tribunal finds that Mr Marson and Ms Marson’s daughter [Child 3] was admitted into [Hospital 1] on 6 September 2016 to undergo emergency [surgery] and Ms Marson relocated to [City 1] to care for her. 

13.  Mr Marson reported to the Department on 25 October 2015 that he had sole care of the children from 5 September 2015 as a consequence of [Child 3’s] hospital admission.  

14.  There is in evidence an affidavit sworn by Mr Marson on 13 November 2015. It relevantly states:

10. As deposed in my affidavit sworn on 22 September 2015 and filed 23 September 2015 Ms Marson refused to allow the children [Child 1], [Child 2] and [Child 4] to remain in my full time care whilst she was with [Child 3] in [City 1].

11. Ms Marson was shifting the children around to different parents whose children are friends with our children. Ms Marson was also leaving the children with a babysitter or her [adult] daughter [named] or son [named], despite my availability to care for them. This was disruptive for the children but Ms Marson continued to refuse to allow me to care for them.

12. I often did not know where my children were sleeping and who was caring for them. This caused me anxiety and stress.

13. Pursuant to the interim court orders, the children were in my care for the weekend commencing Friday 18 September 2015…The children remained in my full-time care until Sunday 1^st November 2015.

15.  Based on the contents of the affidavit, which the tribunal prefers over Mr Marson’s unsworn statements to the Department, the tribunal finds that Mr Marson had no care of the children during the period 6 to 17 September 2015 and that he assumed full time care of the children from 18 September 2015.

16.  Ms Marson contends that she then had care of the children on the weekends beginning 3, 4, 9, 10 and 16 to 18 October 2015, with Mr Marson caring for [Child 3] on all but one of these nights.

17.  The emails between Ms Marson and Mr Marson in evidence suggest that on an ad hoc basis they would at least attempt to negotiate to swap care of the children and [Child 3]. It may well be the case that during the period 18 September to 30 October 2015 Mr Marson cared for [Child 3] and Ms Marson cared for [Child 1], [Child 2] and [Child 4]. There is no documentary evidence to support Ms Marson’s assertions on this point and therefore the tribunal is not persuaded that Ms Marson had care of the children on three weekends whilst [Child 3] was hospitalised. In any event, the case law in this area “urge a sensible and pragmatic approach, and allow for tolerable deviations”: Rowley and Rowley [2018] AATA 1472. Thus, even if care was as Ms Marson contends, the tribunal is not satisfied that there should be an adjustment for such minor variations.

18.  Section 54F of the Act provides that the Department must revoke a percentage of care determination if a parent’s care does not correspond with their existing care percentage and the cost percentage would change, as is the case in this situation. Section 54G does not apply. Thus, the previous care determination must be revoked.

19.  Subsection 54F(3) of the Act provides that such a revocation is to take effect from the day before the change of care was notified. In this case revocation takes place on 24 October 2015, the day before Mr Marson notified of the change to the care arrangements. Therefore, the new care determination applies from 25 October 2015.  

20. Section 95N of the Child Support (Registration and Collection) Act 1988 addresses the date of effect of a care percentage decision upon this tribunal substituting a decision made by an objections officer. Relevant to this application, subsection 95N(1) states that if an application to this tribunal was made more than 28 days of notice of the objections officer’s decision, then the date of effect of its decision is from the day the application for review was made to this tribunal. However, subsection 95N(2) states that if there are special circumstances that prevented the application being made within 28 days, the tribunal may determine a longer period to be appropriate.

21.  It is not in contention that the Department determined that due to administrative error, the objections officer decision was not sent to Ms Marson until 23 March 2017. She was verbally advised on this date to apply to this tribunal for a review of the decision. A further copy was sent to her again on 20 April 2017 as Ms Marson advised that she still had not received a copy. A copy was again sent to her on 1 May 2017, when she was again advised to contact this tribunal. The tribunal finds accordingly.

22.  Ms Marson lodged her application to this tribunal on 24 May 2018. At hearing Ms Marson submitted that there were special circumstances that prevented her from lodging her application sooner. Her evidence is summarised as follows. [Child 3’s] illness caused her considerable distress and anxiety. [Child 3] was hospitalised again in March and April 2016 as she had a [condition] and required [specified] treatment. She had further [related] surgeries in September and November 2016. She was released from hospital on 23 December 2016. During this time Ms Marson was again forced to relocate to [City 1] so that she could remain by [Child 3’s] bedside. [Child 3] continues to require attentive care, including [procedures] and careful monitoring by her treating doctors. She underwent surgery again earlier this year. During this period Ms Marson also cared for her other six children (including a grandchild who was removed from Ms Marson’s [child’s] care). She has required psychological support during this period.  She simply did not have the time or energy to tackle the child support decision until May 2018.

23.  Whilst the tribunal accepts that [Child 3] became gravely ill in September 2016 and required considerable care and numerous hospital admissions, the tribunal is not satisfied that there were special circumstances that prevented Ms Marson from lodging her application within 28 days of 1 May 2017, which is the latest date from which the tribunal can be satisfied that Ms Marson was served notice of the objections officer’s decision. Whilst Ms Marson’s undoubtedly is stretched given her caring responsibilities, the tribunal is not satisfied that her circumstances prevented her from making an application to the tribunal within the statutory 28 day period from 1 May 2017. Thus, the date of effect of this decision for child support purposes is 24 May 2018.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Ms Marson had 0% and Mr Marson had 100% care of [Child 1], [Child 2] and [Child 4] during the period 18 September to 30 October 2015. The date of effect of this decision is 24 May 2018.