McGlothlin and Ingersoll (Child support)

[2023] AATA 4659

McGlothlin and Ingersoll (Child support) [2023] AATA 4659 (12 December 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC026613

APPLICANT:  Mr McGlothlin

OTHER PARTIES:  Child Support Registrar

Ms Ingersoll

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  12 December 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care for [Child 1] and [Child 2] from 6 February 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change in care – decision 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. This review is about a change to the percentage of care determinations for Mr McGlothlin and Ms Ingersoll in respect of their children [Child 1] (born June 2012) and [Child 2] (born October 2013).  There has been a child support assessment in place since 20 November 2015.

2. From 21 November 2015 the child support assessment reflected Mr McGlothlin as having 57 per cent care and Ms Ingersoll as having 43 per cent care of [Child 1] and [Child 2].

3. On 16 February 2023 Ms Ingersoll notified Centrelink of a change to the care arrangements stating that she was providing 80 per cent care and Mr McGlothlin was providing 20 per cent care of [Child 1] and [Child 2] from 6 February 2023.

4. On 17 March 2023 Services Australia – Child Support (Child Support) made the decision to reflect that Mr McGlothlin provides 20 per cent care of [Child 1] and [Child 2] and Ms Ingersoll provides 80 per cent care from 6 February 2023.

5. On 29 May 2023 Mr McGlothlin objected to this decision and on 17 August 2023 Child Support disallowed the objection (the objection decision).

6. On 18 August 2023 Mr McGlothlin applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 12 December 2023.  Mr McGlothlin gave evidence on affirmation by Microsoft Teams audio.  The Tribunal wrote to Ms Ingersoll on 20 November 2023 advising her the application for review would be heard on 12 December 2023 at 1:30 pm.  On 11 December 2023 the Tribunal sent Ms Ingersoll an SMS text message reminding her of the details of the hearing.  The Tribunal attempted to contact Ms Ingersoll on the day of the hearing but was unsuccessful.  Ms Ingersoll did not participate in the hearing.

8. Child Support provided the Tribunal and the parties with papers relevant to the matter (140 pages).  The Tribunal received additional information from Mr McGlothlin prior to the hearing and a copy was distributed to the parties (A1).

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. Child Support 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, Child Support determines care percentages that correspond with the actual care of a child the parent has had, or is likely to have, during a care period (section 50 of the Act). The task of the Tribunal on review is the same.

4. Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations 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 the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr McGlothlin told the Tribunal that care of [Child 1] and [Child 2] did not change from 6 February 2023 as Ms Ingersoll had informed Centrelink.  Mr McGlothlin said he could think of no reason why Ms Ingersoll might believe there was a change of care because it was untrue.

2. Mr McGlothlin said the children remained in his care and, in fact, Ms Ingersoll barely saw them during the year.  Mr McGlothlin explained the only time [Child 1] and [Child 2] did not live with him was when he was working at sea.  Mr McGlothlin said on such occasions he arranged for them to stay with their maternal grandmother who had little contact with Ms Ingersoll.

3. The Tribunal notes in evidence from Child Support a text message from [Ms A] (the grandmother) dated 19 June 2023.  It states, relevantly, “You have to do whats best for your girls” and “[Ms Ingersoll] is not welcome in my house anymore”.  It goes on to state, “Tell them its not true”.

4. Mr McGlothlin said he had provided third-party statements in support of his existing care of the children but these had been ignored by Child Support.  Mr McGlothlin added that he had also tried to pursue a separate change of care with Child Support because, as he had pointed out, Ms Ingersoll did not have any care of the children.

5. The Tribunal notes in evidence from Mr McGown a statement from the Deputy Principal of [School 1] dated 26 May 2023, an undated statement from [Ms B] and an undated statement from [Mr C].  Mr McGlothlin said [Ms B] was his partner and [Mr C] was his father.  While these statements are not directly relevant to care of the children from around 6 February 2023 they do indicate that Mr McGlothlin has been the primary carer for some time.

6. Ms Ingersoll did not participate in the hearing.  The Tribunal notes that Child Support was unable to contact her in relation to the objection lodged by Mr McGlothlin.  There is no evidence from Ms Ingersoll to support that care of [Child 1] and [Child 2] changed from 6 February 2023.

7. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. Care is generally assessed over a 12-month care period commencing from the day on which the actual care of the child changed.

8. In this case, based on the evidence provided, the Tribunal cannot be satisfied there was a change of care for [Child 1] and [Child 2] on or around 6 February 2023.  The Tribunal finds there is no basis, therefore, for the existing care percentage determinations to be revoked.

9. The Tribunal notes that Mr McGlothlin submitted his objection on 29 May 2023 to the original care decision made by Child Support on 17 March 2023.

10. An objection to a care percentage decision does not have to be lodged within 28 days, however, if it is lodged outside the 28-day period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged in accordance with subsection 87AA(1) of the R&C Act. In this case, Child Support disallowed the objection and so subsection 87AA(1) does not apply.

11. The Tribunal has found differently and instead determined there was no change of care from 6 February 2023. As the decision made by the Tribunal will apply in substitution of the objection decision made by Child Support, the date of effect of the Tribunal’s decision is in accordance with subsection 87AA(1) of the R&C Act.

12. Child Support may, under certain circumstances, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days was a reference to such longer period as determined to be appropriate. To do so requires Child Support to make an original decision which the Tribunal is unable to make in the current proceedings. It is clear that a care decision and a section 87AA decision (if one is made) are separate decisions with separate review rights (sections 80 and 80A and items 2 and 3 of section 89 of the R&C Act).

13. Mr McGlothlin may apply to Child Support for a decision under subsection 87AA(2) of the R&C Act to be made if he wishes.

14. Given the late objection made by Mr McGlothlin, the decision of the Tribunal will apply from 29 May 2023, unless a determination under section 87AA(2) is made by Child Support.

Other care matters

1. Mr McGlothlin has told the Tribunal he is trying to progress a separate change of care for an earlier period with Child Support.  The Tribunal notes in evidence that Mr McGlothlin submitted a change of care on 9 September 2023.  This is the appropriate course of action for him to pursue.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care for [Child 1] and [Child 2] from 6 February 2023.