Messon and Kregan (Child support)

[2018] AATA 3213

Messon and Kregan (Child support) [2018] AATA 3213 (19 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2018/BC014104 & 2018/BC014184

APPLICANT:  Mr Messon

OTHER PARTIES:  Miss Kregan

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  19 July 2018

DECISIONS:

The care decision is varied so that Mr Messon is recorded as providing 12% care and Miss Kregan is recorded as providing 88% care to [Child 1] from 27 October 2017.

The decision to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act is set aside and, in substitution, the Tribunal decides not to make a determination pursuant to subsection 87AA(2) of that Act. The care decision referred to above therefore has effect from the date Miss Kregan lodged her objection, which was 22 January 2018.

CATCHWORDS

Child support – Percentage of care – Pattern of care – Less than regular care – Change of care not notified within a reasonable period – Decision under review varied

Child support – Percentage of care - Date of effect of objection decision – Whether special circumstances prevented lodgement of the objection within time – 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

1. This case concerns Mr Messon’s and Miss Kregan’s recorded care of their son, [Child 1], who was born in 2001. The Department of Human Services – Child Support (“the CSA”) recorded Mr Messon as providing 21% care from March 2014. Miss Kregan has always been recorded as providing the balance of care and, for convenience, I will predominantly refer to Mr Messon’s care.

2. On 27 October 2017, Miss Kregan informed the CSA of a change in care. The CSA decided not to record a change in care. Miss Kregan belatedly objected to that decision. An objections officer allowed her objection and made two decisions:

   ·       a care decision to record Mr Messon as providing 10% care and Miss Kregan as providing 90% care from 27 October 2017; and

   · a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”) which was based on a finding that there were special circumstances that prevented Miss Kregan from objecting to the CSA’s original care decision within 28 days of being notified of the decision, and which resulted in the objections officer’s care decision having effect from the date that Miss Kregan informed the CSA of the change in care and not the date that Miss Kregan objected to the original decision.

3. Mr Messon promptly applied to the Tribunal for further review of both decisions. I conducted a hearing on 19 July 2018. I spoke to Mr Messon by conference phone. Miss Kregan elected not to participate in the hearing. (She submitted that she was unable to participate in the hearing but I do not accept that submission.)

4. The Child Support (Assessment) Act 1989 (“the Assessment Act”) provides for the making of care decisions. Relevantly, section 50 of the Assessment Act requires a decision-maker to determine the pattern of care a parent “has had, or is likely to have,” during the relevant care period.

5. On 27 October 2017, Miss Kregan informed the CSA that Mr Messon was providing, on average, 2 nights of care per month. She said that in estimating his likely provision of care per year, she also estimated that he would provide an additional 23 nights of care during holidays, etc. Miss Kregan estimated that Mr Messon would provide 45 nights of care per year. 45 / 365 = 12.3%, which is rounded down to 12%: section 54D of the Assessment Act.

6. On 28 November 2017, Mr Messon acknowledged that he had provided less care over the preceding 4 months. He estimated that he had provided 12 to 15 nights of care during those 4 months. That evidence suggested that he had been providing, and was likely to continue to provide, approximately 36 to 45 nights of care per year.

7. Mr Messon also stated that he expected to provide more care in the future. However, on 4 December 2017 he wrote to the Department of Communities, Child Safety and Disability Services and informed it that “[m]y son no longer wants to talk to me or spend time with me and it is entirely as a result of his mother engaging in parental alienation.” I am not persuaded that it was likely, at the time, that Mr Messon would provide more than 45 nights per year in the future.

8. At the hearing, Mr Messon did not dispute Miss Kregan’s records of his provision of care during the months of July to November 2017. He provided 2 nights of care during each of those 5 months. Mr Messon added that he provided 9 nights of care (in total) during December 2017 and January 2018. Miss Kregan had recorded him as providing 10 nights of care during that period. There is no dispute that he provided 20 or so nights of care from 1 July 2017 to mid-January 2018, which equates to fewer than 45 nights per year.

9. If a parent is recorded as providing less than 14% care, the parent’s actual percentage of care does not affect the rate of child support payable pursuant to the administrative assessment formula. When Miss Kregan contacted the CSA in October 2017, Mr Messon had been providing, and was likely to continue to provide, fewer than 52 nights of care per year, and he was therefore providing, and was likely to continue to provide, less than 14% care. In light of Miss Kregan’s concession that it had been likely that he would provide an additional 23 nights of care during holidays, etc., I find that, as at October 2017, Mr Messon had been providing, and was likely to continue to provide, a pattern of care that equated to 45 nights of care per year, i.e. 12% care.

10. On 27 October 2017, Miss Kregan informed the CSA that the change in care occurred around 21 July 2017. She subsequently informed the CSA that she had been keeping records of the parents’ care of [Child 1] since 1 July 2017. She subsequently noted that Mr Messon had provided care on 25 June 2017 but she did not purport to have kept records of the parents’ care in June 2017, so it is not known what other care Mr Messon provided in June 2017. Doing the best I can in the circumstances, I find that the change in care occurred on 1 July 2017.

11. Miss Kregan did not inform the CSA of the change in care within 28 days of it occurring. Ordinarily, the care decision would therefore have effect from when Miss Kregan informed the CSA of the change in care, i.e. 27 October 2017: sections 54B and 54F of the Assessment Act. Mr Messon said the parents’ care of [Child 1] was largely left to [Child 1], but his written submissions also implied, in effect, that Miss Kregan had withheld care. If that were correct, the issue would then become whether Miss Kregan notified the CSA of the change in care within a reasonable period. If she did not notify the CSA of the change in care within a reasonable period, the care decision would have effect from when Miss Kregan informed the CSA of the change in care, i.e. 27 October 2017: sections 54B and 54G of the Assessment Act. Notifying the CSA of a change in care approximately four months after it occurred would not constitute notification within a reasonable period. On any view, the change in care takes effect from 27 October 2017, subject to the application of section 87AA of the Registration Act.

12. If a person is notified of a care decision and they object to the care decision more than 28 days later, any change to the original decision has effect from the date the person objected, unless there were special circumstances that prevented the person from objecting within 28 days of being notified of the care decision and it is appropriate to extend the 28‑day period: section 87AA of the Registration Act. Miss Kregan was notified of the original care decision by letter dated 9 December 2017. She contacted the CSA on 22 January 2018 and advised it that Mr Messon was continuing to provide 45 nights of care per year. She said she originally informed the CSA of the change in care in October 2017. The CSA did not record the conversation as an objection. Miss Kregan contacted the CSA again on 7 February 2018 and it noted:

    I discussed the above care with Ms Kregan. Ms Kregan confirmed that a new care event has not occurred; Mr Messon has been having below regular care of [Child 1] (45 nights per year) since 21 July 2017. Ms Kregan advised that she contacted CSA on 22/01/2018 to discuss the rejected care, and was advised that she cannot lodge an objection as it has been more than 28 days since care decision was made.

    I explained that this is incorrect, and we cannot consider a new care change when a new care event has not occurred.

    I explained that she will need to lodge a care objection, and request an extension of time, if she was unable to object within 28 days.

13. The information that the CSA gave to Miss Kregan on 7 February 2018 was also incorrect. An objection to a care decision can be lodged by phone: see generally 4.1.4 and 4.1.8 of the Child Support Guide. If an objection to a care decision is lodged more than 28 days after the person was notified of the care decision, the person does not need to apply for an extension of time in which to object, but the person’s delay may affect when any new decision takes effect.

14. Based on the evidence set out above, I find that when Miss Kregan contacted the CSA on 22 January 2018, the substance of the conversation constituted an objection to the original care decision. There was no legal requirement to use the word “objection”.

15. There is no direct evidence of the actual date that Miss Kregan received the CSA letter dated 9 December 2017 but the chronology of events strongly suggests that Miss Kregan did not object to the original care decision within 28 days of being notified of the decision, and she has not suggested otherwise.

16. Miss Kregan stated that [Child 1] broke his collar bone on 11 November 2017. She stated that her youngest son underwent surgery on 28 November 2017. Her submissions included the following:

    ... [T]he two events that took place for me in November were stressful. [Child 1] injuring his collar bone was stressful, he obviously was required to attend a fracture clinic to check the progress of the heal, which is hours in hospital, plus a Drs appointment to receive a medical certificate as he missed a week of school. [Child 1] was not able to attend school for a week due to the pain. He was not able to do things for himself, get food, dress or even initially go to the toilet. I took time off work to do these things and attend these appointments.

    Our youngest son was booked in to have surgery at the end of November also had Drs appointments prior to having his surgery. All this took place in November and anytime you have kids requiring medical attention, it is stressful. This all took place while I was still trying to make an income and look after the entire family.

17. I accept that those circumstances made it more difficult for Miss Kregan to object to the original care decision. However, the issue is whether those circumstances prevented her from objecting to the care decision within 28 days of being notified of the decision. I do not accept that those circumstances prevented her from attending to the simple task of phoning the CSA and lodging an objection. The decision to record Mr Messon as having 12% care and Miss Kregan as having 88% care therefore takes effect from the date on which Miss Kregan lodged her objection, which was 22 January 2018.

DECISION

The care decision is varied so that Mr Messon is recorded as providing 12% care and Miss Kregan is recorded as providing 88% care to [Child 1] from 27 October 2017.

The decision to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act is set aside and, in substitution, the Tribunal decides not to make a determination pursuant to subsection 87AA(2) of that Act. The care decision referred to above therefore has effect from the date Miss Kregan lodged her objection, which was 22 January 2018.