Pelegrin and Poliver (Child support)

[2018] AATA 5031

Pelegrin and Poliver (Child support) [2018] AATA 5031 (20 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014509

APPLICANT:  Mr Pelegrin

OTHER PARTIES:  Child Support Registrar

Ms Poliver

TRIBUNAL:Member S Letch

DECISION DATE:  20 November 2018

DECISION:

The Tribunal decides to:

(a)  vary the care percentage decision under review and decide that the care for [Child 1] is to be as 61% to Ms Poliver and 39% to Mr Pelegrin from 15 September 2017;

(b) not make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, with the consequence that the date of effect of the Tribunal’s decision in (a) is 5 July 2018. 

CATCHWORDS

CHILD SUPPORT – percentage of care – pattern of care – fortnightly and school holiday care – decision under review varied

CHILD SUPPORT – date of effect determination – application for review made more than 28 days after objection decision – whether special circumstances prevented earlier application – decision not to make a determination

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. Mr Pelegrin and Ms Poliver are the parents of [Child 1], born August 2008. On 15 September 2017, Mr Pelegrin made an application for a child support assessment indicating he had 39% care of [Child 1] (three nights a fortnight during school term, and all of the school holidays).

2. On 3 October 2017, the Child Support Agency (“CSA”) somewhat curiously decided to record care as 60% to Mr Pelegrin and 40% to Ms Poliver. 

3. On 11 October 2017, Ms Poliver objected to the decision. She told the CSA that care was 70% to her and 30% to Mr Pelegrin.

4. On 8 December 2017, an objection officer decided to allow Ms Poliver’s objection, and record care as 70% to her and 30% to Mr Pelegrin from 22 September 2017.

5. On 5 July 2018 (notably, more than 28 days after the objection decision), Mr Pelegrin applied to the Tribunal for review. The Tribunal conducted a hearing on 17 October 2018; following the hearing, the Tribunal sought and obtained further written submissions from the parties, referred to later in these reasons.    

CONSIDERATION

1. Mr Pelegrin told the Tribunal that he believes he had [Child 1] for more than 30% of the time. Mr Pelegrin said he normally has three nights a fortnight; he said the current orders do not specify holiday period – it “depends on Ms Poliver”. He said he had [Child 1] for the whole of September 2017 and December 2017/January 2018 school holiday periods. Ms Poliver agreed that had been so; however, she indicated that going forward, Mr Pelegrin will not be having [Child 1] for more than half the school holidays.

2. Ms Poliver told the Tribunal she accepted the regular pattern was three nights a fortnight (which she indicated includes nights with Mr Pelegrin’s parents – a suggestion refuted by Mr Pelegrin who said he arrives in Sydney around 8:30 pm on Friday nights and spends the night with [Child 1] at his parents).

3. Both parties agreed that Mr Pelegrin had care of [Child 1] for one week each in the April 2018 holidays, and that Mr Pelegrin had care of [Child 1] for the full two weeks in July 2018. In the most recent holidays, they shared one week each.

4. In relation to Mr Pelegrin’s late application to the Tribunal, Mr Pelegrin’s written submission to the Tribunal was as follows:

   As per our telephone conversation on 17 October Ms Poliver agreed to me having [Child 1] for the periods stated. Including the school holidays. As I’m employed as a casual [Occupation 1] and carry out a school run during the school holiday periods I am not receiving any income. I had the child for these periods.

   I received a debt at a much later date than the 8th December 2017. When I received the debt in regards to this I looked further into the matter and went to the tribunal.

   There are no “special” circumstances as to why, but the phone conversation on the 17th October 2018 proves I had the child for all the school holidays from September 2017 to February 2018 and Ms Poliver also agreed to this.

5. In her response, amongst other things, Ms Poliver indicated that she did not consider there to be any special circumstances which prevented Mr Pelegrin bringing his application to the Tribunal within 28 days.

Application of the law

1. The Tribunal is confined to considering the pattern of care, or likely pattern of care, from 15 September 2017 (the date of the application for child support), and not any later time. The Tribunal must make a “point in time” determination. Later changes to the pattern of care are the subject of separate notifications and separate decisions which are not before the Tribunal.

2. The parties agreed Mr Pelegrin was having three nights each fortnight during school term, and that he had [Child 1] for the whole of the September 2017 and December 2017/January 2018 school holiday periods. In April 2018, the parents had one week each; however, Mr Pelegrin had [Child 1] for the full two weeks in July 2018.

3. The Tribunal considers the preferable view to be that the likely pattern of care for [Child 1] from 15 September 2017 should be recorded as Mr Pelegrin having 144 nights per annum (three nights a fortnight during school term, and all of the school holidays). This results in a care percentage of 39% (rounded down).

4. The Tribunal observes that Ms Poliver has made it clear school holidays will now be shared equally. This appears to be a change in the pattern, or likely pattern, of care. As the Tribunal observed during the hearing, any subsequent changes in care after 15 September 2017 require fresh notifications and fresh determinations to be made. Ms Poliver may now elect to discuss with the CSA a change to recorded care, and whether any prior interactions with CSA might properly be regarded as a report of a change in care.   

5. The Tribunal will therefore vary the objection officer decision and substitute decision that care for [Child 1] be recorded as 61% to Ms Poliver and 39% to Mr Pelegrin from 15 September 2017.

What is the date of effect of the decision? 

16.Section 95N of the Child Support (Registration and Collection) Act 1988 provides that a review decision will have effect from the date the application for review was made if the application was lodged more than 28 days after the objection decision. However, if there are special circumstances that prevented the person from lodging the application within the 28 days, the Tribunal may allow for a longer application period.

1. Mr Pelegrin did not advance any special circumstances preventing his application being made earlier. He was properly advised of his objection rights at the time of the original decision. There is no evidence before the Tribunal which would support a favourable application of section 95N, and the Tribunal will decline to make such a determination.

2. The effect will be that the determination giving Mr Pelegrin 39% care will not take effect until 5 July 2018, the date he applied to the Tribunal for review. The Tribunal again observes that it is open for Ms Poliver to approach the CSA about any later change in care and seek a fresh determination.

DECISION

The Tribunal decides to:

(a)  vary the care percentage decision under review and decide that the care for [Child 1] is to be as 61% to Ms Poliver and 39% to Mr Pelegrin from 15 September 2017;

(b) not make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, with the consequence that the date of effect of the Tribunal’s decision in (a) is 5 July 2018.