Owens and Owens (Child support)

[2020] AATA 5844

Owens and Owens (Child support) [2020] AATA 5844 (9 December 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019696

2020/MC019707

APPLICANT:  Ms Owens

OTHER PARTIES:  Child Support Registrar

Mr Owens

TRIBUNAL:Member J Longo

DECISION DATE:  9 December 2020

DECISION:

The Tribunal affirms the decision under review.

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 – date of effect – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – decision under review affirmed

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 Owens and Mr Owens are the parents of [Child 1]. Mr Owens is the parent liable to pay child support. From 13 December 2016, the Department of Human Services – Child Support (the Department) had determined that Ms Owens had a percentage of care for [Child 1] of 100% and that Mr Owens had a percentage of care of 0% for [Child 1].

2. On 14 August 2018, the Department of Human Services – Centrelink notified the Department that there had been a change in the care for [Child 1], and that Ms Owens had a percentage of care of 50% for [Child 1] and Mr Owens had a percentage of care of 50% from 9 April 2018. On 14 August 2018, the Department made a decision to make a new determination of care for [Child 1] accordingly.

3. On 20 May 2020, Ms Owens lodged an objection to the above care decision of the Department, stating that while there had been a change in care, the care change was less than determined. On 6 August 2020, the Department partly allowed Ms Owens’ objection and made a decision that Ms Owens had a percentage of care for [Child 1] of 58% and that Mr Owens had a percentage of care of 42% for [Child 1] with effect from 28 May 2020.

4. On 21 August 2020, Ms Owens lodged an application to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. The hearing took place on 8 October 2020. Ms Owens and Mr Owens spoke to the Tribunal via conference telephone and gave sworn evidence. Mr Owens was invited to be added as a party to the proceedings but chose not to be added. In making its decision, the Tribunal took into consideration the documents provided by the Department (142 pages for each application), which were also sent to both parties. The Tribunal deferred its decision on 8 October 2020 to obtain further information. A copy of this information (C1 to C117) was provided to both parties. On 9 December 2020, the Tribunal made its decision.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [Child 1]?

1. It is not in dispute that the Department had recorded the care of [Child 1] as Ms Owens having 100% and Mr Owens having 0% of the care from 13 December 2016. It is also not in dispute that Centrelink notified the Department on 14 August 2018 and advised that the care of [Child 1] had changed to Ms Owens and Mr Owens each having a care percentage of 50% for [Child 1]. The Tribunal finds accordingly.

2. Ms Owens stated that she thought a parenting plan was agreed by the parties in early 2017 but that the parenting plan was never adhered to for [Child 1’s] care. A signed parenting plan, dated 9 April 2018, was provided to the Department.[1] Ms Owens stated that she thought the parenting plan was agreed to earlier and could not recall signing the parenting plan which was provided in the documents. Ms Owens stated that Mr Owens never had the children for consecutive weeks since the parenting plan was agreed to. At the time of the arrangements, Mr Owens was living with his girlfriend and [Child 1] was dreading going into his care. Ms Owens stated that the care never occurred as per the parenting plan. While it happened for a couple of weeks, it was not consistent. Ms Owens stated that she kept notes of the care when it commenced in 2018 and provided a calendar to Centrelink,[2] however the calendar provided was for October to December 2019. Ms Owens stated that as she wasn’t sure that the parenting plan would not be adhered to, she waited 12 months to see whether it was followed, but it didn’t occur. She stated that there was no consistency in Mr Owens’ care and that he did not have [Child 1] in his care as per the parenting plan. Ms Owens confirmed that she was notified of the decision by Centrelink both through ordinary mail and electronically through her myGov account. She thought she had advised Centrelink that the care was not correct.

   [1] Pages C50 to C53 Documents provided by Centrelink.

   [2] Page 68 to 70, Subsection 37(1) Statement and Documents provided by the Department.

3. The Tribunal notes that the calendar provided to the Department by Ms Owens shows Mr Owens had the care of [Child 1] for 6 nights in October 2019, 7 nights in November 2019 and 5 nights of care in December 2019. This calendar was also provided to Centrelink. The Centrelink information provided to the Tribunal shows Centrelink being advised in 2019 by Ms Owens of a care change in relation to the care of [Child 1]. While a statement was made to Centrelink in April 2019 regarding the care of [Child 1], this referred to the care in October 2018 and not earlier. The Centrelink documents also contain a calendar for July 2019, provided by Mr Owens, which shows that he had [Child 1] in his care for 14 nights but no other care information for earlier periods has been provided.

4. Mr Owens stated that there were no previous parenting plans for the care of [Child 1] and that the documents provided to the Department were signed by both of them. He stated that the parenting plan was mailed to them. Mr Owens stated that he signed the parenting plan and then took the signed copy to Ms Owens to be signed and then took the plan to Centrelink. He stated that the care occurred according to the parenting plan. He did not provide any information about the care arrangements from 2018 because he was not asked to provide information until 2019. Mr Owens stated that he recorded the care on a calendar but that in 2019 the care for [Child 1] reduced to 6 nights per fortnight because [Child 1] decided not to come over on a Thursday night.

5. The information provided to the Tribunal from Family Dispute Resolution[3] shows that the initial contact with Relationships Australia occurred on [a day in] November 2017 and the joint session [in] February 2018. This confirms that a parenting plan in 2017 could not have been agreed to by the parties as the joint sessions with Relationship Australia did not occur until February 2018. The information provided confirms what is expressed in the parenting plan, with each of Ms Owens and Mr Owens having equal shared care of [Child 1]. The Centrelink documents also contain a statutory declaration from Mr Owens’ partner[4] which states that he has 6 nights per fortnight of care of [Child 1] but does not specify from when this occurred. Ms Owens also provided a statement from a third party[5] to Centrelink. This statement indicates that [Child 1] is in Ms Owens’ care 75% of the time but also does not indicate from when this occurred. However, the statement confirms that Mr Owens had [Child 1] in his care for 3 and a half days in the last 25 days. The statement was signed 12 December 2019.

   [3] Pages C98 to C104.

   [4] Pages C55 to C57.

   [5] Page C15.

Should the existing care determinations in relation to [Child 1] be revoked?

11.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children. Centrelink notified the Department that the care taking place did not correspond with the existing care of [Child 1] on 13 December 2016. Mr Owens stated to Centrelink that the care changed from 9 April 2018.

12.In this case, the Tribunal has determined that a care determination was made under section 50 of the Act from 13 December 2016 and that Ms Owens had a percentage of care of [Child 1] of 100% and that Mr Owens had a percentage of care of 0% for [Child 1]. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

13.Both sections reflect the idea that the Department makes point-in-time care decisions on the basis of what has happened up until the care decision is made and what is likely to happen thereafter. If for some reason what is likely to happen does not eventuate, a parent can notify the Department and a new care determination can be made. However, the legislative test in the first instance and on review remains the same: what had happened until the date of the original decision, in this case until 8 April 2018, and what was likely to happen thereafter?

14.The care that was determined at this time was based on the parenting plan entered into by Ms Owens and Mr Owens on 9 April 2018. A copy of this parenting plan was provided to Centrelink, and this was also provided to the Department. Mr Owens stated that the care of [Child 1] altered to 6 nights per fortnight, consistent with other information provided to Centrelink and the Department, including the statutory declaration of Mr Owens’ partner. This information was not provided to the Department until July 2019. While Ms Owens has also provided evidence of a change in care, this information relates to a care calendar of the care in October–November 2019.

15.The Tribunal is required to consider what the actual care of [Child 1] was or is likely to be during the care period. The care period is such a period as the Child Support Registrar considers appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the Tribunal. The Tribunal considers that, in the circumstances of this case, an appropriate care period is the period from 9 April 2018, being the date from which Mr Owens notified Centrelink that a change to the care arrangements occurred and that the care period should be a 12-month period.

16.The Tribunal has accepted that the of care of [Child 1] changed from 9 April 2018 and that, according to Mr Owens’ evidence to Centrelink, he had [Child 1] in his care 6 nights per fortnight (42%) from this date. The Tribunal does not accept that the care has been greater, as while the parenting plan stated that the care was 50/50, both Mr Owens and Ms Owens’ evidence confirmed that the care altered from the agreed arrangement in the parenting plan. The evidence of the care provided by Ms Owens, apart from her objection in May 2020, was a statement to Centrelink and a care calendar for October–November 2019. This information seems to indicate that Mr Owens’ care has been lower but not from April 2018 and is inconsistent with the information held by Centrelink or the care determination of the Department.

17.The Tribunal has determined that the care should be changed from 9 April 2018 to reflect that [Child 1] was in Ms Owens’ care for 58% of the time and in Mr Owens’ care for 42% of the time. Accordingly, the previous determination of care is revoked.

Date of effect of the decision

18.As the objections officer partly allowed Ms Owens’ objection, the Department also considered the date of effect of the decision. As Ms Owens’ objection was more than 28 days after the decision to make a new determination on 14 August 2018, it is subject to section 87AA of the Child Support (Registration and Collection) Act 1988 (the Registration Act). Subsection 87AA(1) of the Registration Act provides that if a person objects to a care percentage decision more than 28 days after the person was served with a notice of the decision, the decision has effect from the date the person lodged the objection. The Department has stated that Ms Owens lodged the objection on 21 April 2020, which is outside of the 28-day timeframe by one day, as he was notified of the decision electronically.

19.Subsection 87AA(2) of the Registration Act allows the Tribunal to consider if there were any special circumstances which prevented Ms Owens from objecting to the decision within 28 days of the Department’s original decision on 14 August 2018.

20.Ms Owens’ oral evidence was that she was diagnosed with [a medical condition] in 2016 and was recovering from this condition at the time the Department made their determination. Ms Owens stated that she thought she had dealt with these issues with Centrelink. However, Ms Owens also stated that she took notes of the care but did not raise these issues until 2019, wanting to see whether the care would be adhered to according to the parenting plan. The Tribunal is not satisfied that there were special circumstances which prevented Ms Owens from objecting to the decision earlier. Accordingly, the Tribunal’s view is that there were no special circumstances which prevented her from objecting to the decision within 28 days of the Department’s original decision and that this contact on occurred on 28 May 2020. Therefore, the appropriate date of effect of the change in care which occurred on 9 April 2018 is 28 May 2020, which is the date Ms Owens objected to the decision.

DECISION

The Tribunal affirms the decision under review.