Mcbean and Blaisdell (Child support)

[2020] AATA 2029

Mcbean and Blaisdell (Child support) [2020] AATA 2029 (8 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC018589

APPLICANT:  Ms Mcbean

OTHER PARTIES:  Child Support Registrar

Mr Blaisdell

TRIBUNAL:Member S Brakespeare

DECISION DATE:  8 April 2020

DECISION:

(a) The decision under review is varied so that from 27 August 2019 Ms Mcbean’s percentage of care is 100% and Mr Blaisdell’s percentage of care is 0%.

(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 10 March 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made - decision under review varied

CHILD SUPPORT – date of effect of the tribunal’s decision – whether there were special circumstances that prevented the application for review being lodged in time - special circumstances do not exist - tribunal refuses to make a determination - the date of effect of the tribunal’s decision is the date the application for review was lodged

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 Mcbean is the parent who was liable to pay child support to Mr Blaisdell in respect of their child [Child 1], who is 16. The care percentage determinations that were in place (the existing percentage of care determinations) recorded Mr Blaisdell as having 100% care of the child and Ms Mcbean as having 0% care of the child.

2. On 28 August 2019 Ms Mcbean advised the Child Support Agency that there had been a change of care and the child was now in her 100% care.

3. On 28 August 2019 an officer of the Child Support Agency revoked the existing percentage of care determinations and replaced them with percentage of care determinations reflecting that Ms Mcbean had 100% care of the child and Mr Blaisdell had 0% care of the child with effect from 27 August 2019 (the original decision).

4. Mr Blaisdell objected to the original decision.

5. On 8 January 2020 an objections officer allowed the objection and made percentage of care determinations reflecting that Ms Mcbean had 86% care of the child and Mr Blaisdell had 14% care of the child with effect from 27 August 2019 (the objection decision).

6. Ms Mcbean lodged an application for review of the objection decision with the tribunal on 10 March 2020.

7. A hearing was held on 8 April 2020. Ms Mcbean and Mr Blaisdell gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the parties and the tribunal with documents relevant to the review (104 pages).

8. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

1. The statutory provisions relevant to this review are the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act). The issues which arise in this case are:

   ·      Whether the percentage of care determinations in respect of the child should be revoked and replaced;

   ·      What is the date of effect of the tribunal’s decision?

CONSIDERATION

Issue 1 - Is there reason to revoke and replace the existing percentage of care determinations?

1. Section 54F of the Act provides that an existing care percentage decision must be revoked and replaced under section 49 or section 50 of the Act if the Child Support Agency is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. Section 54F applies if section 54G of the Act does not apply.

2. Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children.

3. Section 54G provides that if a person was to have at least regular care of a child (that is, at least 14%) and the person had either no care or less than regular care, and the other responsible person notifies the Child Support Agency or the Family Assistance Office of the changing care within a period that the Child Support Agency considers is reasonable in the circumstances, the percentage of care determinations must be revoked and replaced under section 49 or section 50 of the Act.

4. On 28 August 2019 Ms Mcbean advised the Child Support Agency that the child had decided to return to her sole care from  27 August 2019 following the resolution of family stressors in the last 12 months, and a period of shared care to accommodate the re-introduction of the child back to Ms Mcbean’s care.

5. After Mr Blaisdell objected to the original decision Ms Mcbean advised the Child Support Agency on 8 January 2020 that whilst the pattern of of care was sporadic that on average Mr Blaisdell would have overnight care of the child at least once a week.

6. Ms Mcbean told the tribunal that when the child made the decision to return to live with her there was no plan in place regarding Mr Blaisdell having any care. It was up to the child to decide when he would have contact with Mr Blaisdell. The child makes his own arrangements and takes the train down to visit his father and his friends that live in the same area. He generally informs Ms Mcbean when he is intending to go and Ms Mcbean does not ever stand in his way. However, since the child returned to live with Ms Mcbean he has only stayed overnight at Mr Blaisdell’s place for five nights. Three of those nights were consecutive.

7. Mr Blaisdell agreed with Ms Mcbean’s evidence at hearing. He said that it was the child who decided when he would visit and how long he would stay. His visits were not pre-arranged; the child would just text him to say that he was on the way.

8. The tribunal is satisfied that there was a care change on 27 August 2019 and that from that date Ms Mcbean’s percentage of care was 100% and Ms Mcbean’s percentage of care was 0%. This means that the existing percentage of care determinations are to be revoked and replaced.  

9. The tribunal varies the decision under review so that from 27 August 2019 Ms Mcbean’s percentage of care is 100% and Mr Blaisdell’s percentage of care is 0%.

Issue 2 – What is the date of effect of the tribunal’s decision?

1. Subsection 43(6) of the Administrative Appeals Tribunal Act 1975 provides that if the tribunal on review varies or substitutes a decision, the varied or substituted decision has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

2. However, section 95N of the R&C Act applies where the tribunal varies or substitutes a decision on an objection to a care percentage decision. If the application for review was made to the tribunal more than 28 days after notice was given, and the tribunal makes a decision which varies or substitutes a decision on the basis of an objection to a care percentage decision, the decision as substituted by the tribunal is taken to have been made on the day the application for review was made to the tribunal (subsection 95N(1) of the R&C Act).

3. If the tribunal is satisfied that there are special circumstances that prevented the application for review being made within the 28 day period after the notice was given, that period may be extended (subsection 95N(2) of the R&C Act).

4. The Child Support Agency has informed the tribunal that Ms Mcbean was given notice of the objection decision by electronic notice on 8 January 2020. Ms Mcbean lodged her application for review with the tribunal on 10 March 2020. The tribunal therefore finds that Ms Mcbean has made her application for review more than 28 days after the notice was given.

5. Ms Mcbean told the tribunal that she failed to lodge her application for review  within the 28 day period because when she received notice of  the objection decision she was “over it”. Ms Mcbean said that she has been in dispute with Mr Blaisdell regarding child support issues for many years and she considers the ongoing stress caused by this to be a special circumstance. She took action to lodge the review application when she was advised that the objection decision had given rise to her having a child support overpayment.

6. The tribunal takes the view that conflict arising between parents with regards to child support is not unusual and is therefore not special.  The tribunal does not find that Ms Mcbean’s circumstances are special circumstances that prevented her from lodging her review application in time. The tribunal therefore refuses to make a determination to extend the period for lodging the review application.

7. This means the date of effect of the tribunal’s decision is 10 March 2020.

DECISION

(a) The decision under review is varied so that from 27 August 2019 Ms Mcbean’s percentage of care is 100% and Mr Blaisdell’s percentage of care is 0%.

(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 10 March 2020.