Reiner and Heaton (Child support)

Reiner and Heaton (Child support) [2022] AATA 3069 (2 August 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2022/BC023907 and 2022/BC023911
APPLICANT:  Mr Reiner
OTHER PARTIES:  Child Support Registrar
Miss Heaton

TRIBUNAL:Member P Jensen
DATE OF DECISION: 2 August 2022
DECISIONS:

The Tribunal sets aside the objections officer’s care decision and, in substitution, affirms the original care decision to record Mr Reiner as providing 100% care and Miss Heaton as providing 0% care for the children with effect from 7 June 2021.

The Tribunal sets aside the objections officer’s determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 and, in substitution, decides that section 87AA does not apply.

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 set aside and substituted

CHILD SUPPORT – percentage of care – date of effect provisions – date of effect provisions does not apply – 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 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 DECISIONS

Mr Reiner and Miss Heaton are the parents of [Child 1] and [Child 2]. A child support case was registered with the Child Support Agency (“the CSA”) in 2017. Court orders were made in February 2020 which, broadly speaking, provide for week-about care with each parent’s week of care commencing on a Monday. The CSA recorded each parent as providing 50% care for both children pursuant to those orders.
On 9 April 2021, Mr Reiner reported a change in care from 29 March 2021. Mr Reiner provided additional care while Miss Heaton received medical treatment. On 29 April 2021 the CSA decided to not record a change in care from 29 March 2021.
On 9 July 2021, Mr Reiner reported a change in care from 7 June 2021. Once again, Mr Reiner provided additional care while Miss Heaton received medical treatment.
On 12 August 2021, Mr Reiner belatedly objected to the decision to not record a change in care from 29 March 2021.
On 15 October 2021 an objections officer allowed Mr Reiner’s objection and decided to record him as providing 100% care and Miss Heaton as providing 0% care from 29 March 2021. The objections officer also concluded that special circumstances had prevented Mr Reiner from objecting within 28 days of being notified of the original care decision, and consequently the objections officer’s care decision had full retrospective effect: section 87AA of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”). On 15 October 2021 the CSA also made original care decisions to record each parent as providing 50% care from 26 April 2021; to record Mr Reiner as providing 100% care and Miss Heaton as providing 0% care from 7 June 2021; and to record each parent as providing 50% care 19 July 2021. In summary, as at 15 October 2021, Mr Reiner was recorded as providing 100% care and Miss Heaton was recorded as providing 0% care from 29 March 2021 to 25 April 2021 and from 7 June 2021 to 18 July 2021, and each parent was otherwise recorded as providing 50% parents from February 2020.
Miss Heaton promptly applied to the Tribunal for review of the objections officer’s decisions dated 15 October 2021. On 17 February 2022, Senior Member Ellis heard evidence from both parents concerning their provision of care from the start of Miss Heaton’s first period of ill health until the end of her second period of ill health. He decided to affirm the original decision to not record a change in care from 29 March 2021. In those circumstance, section 87AA of the Registration Act did not apply. His reasons for his decisions included the following:
34.The Tribunal is of the view the two occasions Miss Heaton missed her court-ordered care should be treated as separate events. After recovering from her first illness Miss Heaton then resumed her care of the children until her second period of illness which was unexpected and completely unrelated.
…
37.As the Tribunal considers the second period of missed care to be a separate and discrete event this could be the subject of a further change of care notification. The Tribunal notes, according to the Child Support Agency, that subsequent decisions regarding the care of the children have been made with 50-50 care from 26 April 2021 to 6 June 2021 and 100 per cent care for Mr Reiner from 7 June 2021 to 18 July 2021.
Upon receiving Senior Member Ellis’s decisions, Miss Heaton objected to the decision made on 15 October 2021 to record Mr Reiner as providing 100% care and herself as providing 0% care from 7 June 2021. An objections officer allowed her objection and decided to not record a change in care from 7 June 2021. The objections officer also concluded that special circumstances had prevented Miss Heaton from objecting to the original care decision within 28 days of being notified of it, and consequently the decision to not record a change in care from 7 June 2021 had full retrospective effect: section 87AA of the Registration Act.
Mr Reiner promptly applied to the Tribunal for review of the objections officer’s two decisions. The matter was listed for hearing on 2 August 2022. Prior to the hearing, Miss Heaton elected to not participate in the hearing. Nevertheless, out of an abundance of caution, I phoned her at the scheduled hearing time. The call went to voicemail. The hearing proceeded in her absence. Mr Reiner gave sworn evidence via MS Teams.
There is no dispute that Miss Heaton provided her usual week of care from Monday, 24 May 2021 and Mr Reiner provided his usual week of care from Monday, 31 May 2021. There is no dispute that Mr Reiner provided the majority of care from 7 June 2021 to 18 July 2021 and Miss Heaton resumed her usual week-about care on Monday, 19 July 2021. The parents do not agree on the nights of care that Miss Heaton provided during the period from 7 June 2021 to 18 July 2021.
At the hearing, Mr Reiner said that Miss Heaton provided two nights of care during the period in question. He said he recorded her provision of care on 19 June 2021 in his calendar. He said he recalled that she also provided one night of care in July 2021 (prior to 19 July 2021), but he could not recall the precise date and he had not marked it in his calendar.
There are some inconsistencies in Miss Heaton’s evidence. On 14 July 2021 she informed the CSA that she provided care on the nights of 25 to 27 June 2021 (and not the surrounding nights) but on 14 March 2022 she stated that she had provided care on the nights of 24 to 26 June 2021 (and not the surrounding nights). On 14 July 2021 she informed the CSA that she did not provide care on the night of 5 July 2021 but on 14 March 2022 she stated that she did provide care on that night. On Miss Heaton’s most recent account of events, she provided a total of 11 nights of care during the period in question.
At the hearing, Mr Reiner stated that Miss Heaton had been too ill in late June 2021 to provide more than a few hours of care at a time and she had certainly not provided three consecutive nights of care. I referred Mr Reiner to Miss Heaton’s other evidence concerning her nights of care. Mr Reiner maintained that she had only provided two nights of care. I noted that the CSA had recorded him as stating that she had provided care from 9 to 12 July 2021. He said that had not occurred, but she might have provided one night of care around that time.
Percentages of care are normally calculated on the basis of nights of care. It appears that care has sometimes been reported to the CSA on the basis of days of care, so that, for example, one night of care becomes two days of care. Also, it is possible that the CSA inadvertently made mistakes when recording the parents’ reported care. The documentary evidence provided by each parent has been of limited assistance. Hearings are normally opportunities to investigate matters more thoroughly via questions to both parents concerning their provision of care on particular nights. It is unfortunate that Miss Heaton did not participate in the hearing. Nevertheless, a decision must be made based on the evidence that has been provided. Having heard from Mr Reiner and having had the opportunity to question him about his evidence, and taking into account Miss Heaton’s election to not participate in the hearing and be questioned about her evidence, I consider Mr Reiner’s evidence to be the more reliable evidence on point. I find that Miss Heaton provided a couple of nights of care during the period in question. I find that she did not provide a pattern of care during that period.
Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Assessment Act”). Decision-makers are required to determine each parent’s pattern of care, if any, on the basis of the care they have had, or are likely to have, during the appropriate care period: sections 49 and 50 of the Assessment Act. At the hearing, Mr Reiner effectively submitted that the appropriate care period commenced at the start of Miss Heaton’s first period of ill health and concluded at the end of her second period of ill health. Senior Member Ellis found otherwise. Mr Reiner confirmed that none of the parties had applied for review of Senior Member Ellis’s decision. In the current proceedings, I consider the appropriate care period to be the period from 7 June 2021 to 18 July 2021. During that period, Miss Heaton did not provide any pattern of care. Mr Reiner will be recorded as providing 100% care and Miss Heaton will be recorded as providing 0% care from 7 June 2021. As noted earlier, each parent is recorded as providing 50% care from 19 July 2021.
The CSA’s original decision to record Mr Reiner as providing 100% care and Miss Heaton as providing 0% care from 7 June 2021 was the preferable decision. The objections officer’s decision to change that original decision will be set aside. Miss Heaton belatedly objected to the original care decision. Mr Reiner promptly applied to Tribunal for review of the objections officer’s decisions. In those circumstances, section 87AA of the Registration Act does not apply: see Senior Member Ellis’s reasons for his decision at paragraphs 39 to 42.

DECISIONS

[2022] AATA 3069

2 August 2022

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness