Rimmer and Marrow (Child support)

[2016] AATA 2004

Rimmer and Marrow (Child support) [2016] AATA 2004 (27 May 2016)

DIVISION:  Social Services & Child Support Division

APPLICANT:  Ms Rimmer

OTHER PARTIES:  Mr Marrow

Child Support Registrar

DECISION DATE:  27 May 2016

DECISION

The tribunal:

(a)sets aside the decision under review and in substitution decides that from 1 November 2014 no change of care be recorded for [Child 1]; and

(b)decides not to 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 4 March 2016.

CATCHWORDS

Child Support – Percentage of care – Determination of primary care – No change in pattern of care – Decision under review set aside and substituted – Late application for review – Date of effect of Tribunal’s decision – No special circumstances – Refusal to make 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. Ms Rimmer and Mr Marrow are the parents of [their eldest child] (born 1994) and [Child1] (born 1997). The case was registered with the Department of Human Services – Child Support Department (the Department) for assessment of child support on 29 February 2002.

2. The care of [Child 1] was recorded as 86% to Ms Rimmer and 14% to Mr Marrow. However, on 10 November 2014, Mr Marrow contacted the Department and advised that [Child 1] had left Ms Rimmer’s care. Ms Rimmer confirmed this was the case on 12 November 2014. On the same date a decision was made to record the care of [Child 1] as 0% to Ms Rimmer and 0% to Mr Marrow from 1 November 2014 and the child support case was ended.

3. On 11 December 2014, Ms Rimmer lodged an objection to the decision made by the Department. An objections officer reconsidered the matter on 19 February 2015 and disallowed the objection.

4. On 4 March 2016, Ms Rimmer lodged an application for review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) seeking an independent review of the objections officer’s decision. 

5. The hearing took place on 27 May 2016, when Ms Rimmer and Mr Marrow spoke to the tribunal by conference phone.

6. In making its decision, the tribunal took into consideration the evidence of the parties at the hearing and the documents (numbered 1 to 114) provided by the Department. These documents were provided to Ms Rimmer and Mr Marrow prior to the hearing.

CONSIDERATION OF THE TRIBUNAL

The relevant law

1. The law relevant to a care decision is contained in the Child Support (Assessment) Act 1989 (the Act). The Act sets out the statutory formula for the calculation of child support. Pursuant to section 35 of the Act, to assess the annual rate of child support payable by a liable parent it is necessary to work out each parent’s percentage of care. In order to revoke a care determination and make a new care determination, the decision maker must be satisfied that the care recorded is no longer an accurate reflection of actual care.

2. Section 54G of the Act provides that an existing determination as to a percentage of care must be revoked if a responsible person was to have at least regular care (14% or more) of a child during a care period under the determination; and the person has had no care or has had less than regular care of the child, despite the other responsible person making the child available to the first responsible person; and if the other responsible person notifies the Registrar of the lack of care within a reasonable time period. If a care determination is revoked under section 54G, the revocation takes effect from either the date of effect of the existing care determination if no care was ever established, or if an established pattern of care ceased, from the date of the cessation of that pattern of care.

3. Section 54F of the Act provides that an existing determination as to a percentage of care must be revoked, if the Registrar is notified or otherwise becomes aware that the care taking place does not correspond with the person’s existing percentage of care for the child and the decision maker is satisfied that the responsible person’s cost percentage would change if a new care determination were made. Section 54F can only apply if section 54G does not apply.

10.  If the Registrar revokes the determination, the Registrar must make a new determination under section 49 or 50 to replace the revoked determination. In this case section 49 is relevant.

11.  Section 49 of the Act provides that if the Registrar revokes a determination and is satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during the care period, the Registrar must determine the responsible person's percentage of care for the child during the care period and that percentage must be 0%, unless section 51 or 52 applies in relation to the responsible person.

12.  Section 51 only applies if  a care arrangement applies in relation to the child; and  the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and the person who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with. Section 52 applies in similar circumstances, but where the person who has reduced care of the child has taken reasonable action to make a new care arrangement.

13.  The term “care” is considered in the Department’s Child Support Guide (the Guide) as follows (at 2.2.1):

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

Example: M and F have one child, A, who is 16 and working part time after leaving school early. M helps A find a suitable flat and pays the bond so that A can move closer to work. M helps A to pay for rent and utilities, and assists with other expenses such as buying work clothes and arranging and paying for medical appointments. M also helps A with decisions about things like finding alternative study options for further education. Every weekend M does A's laundry and provides cooked meals for the week. The Registrar would determine that M continues to care for A for child support purposes despite A living separately from M.

Example: M and F have one child, A, who is 17 and working as an apprentice. A decides to rent a room in a share house. F helps A move in and pays the cost of petrol on the occasions A comes back for a visit. F also makes deposits into A's bank account every now and then if A needs some extra cash to make ends meet. A pays for rent, utilities and any other expenses, and shares in household chores including meal preparation and cleaning. Unless there were other relevant factors, the Registrar would determine that A is living independently and F does not care for A for child support purposes.

14.  Pursuant to subsection 12(2AA) of the Act, a child support terminating event occurs in relation to a child if the child leaves the care of all parties to the child support assessment. Both parents cease to be eligible carers of a child if the parents no longer have at least 35% care and there is no non-parent carer who is entitled to child support because of a child support assessment.

15.  The Registrar is required to amend or end an assessment to take into account the terminating event pursuant to section 74 of the Act. The assessment ends from the date of the terminating event, regardless of the date on which the Registrar was notified of that event.

Are there grounds for revoking the existing care determination and making a new care determination?

The evidence

16.  In this case it is agreed that, for the purposes of study, [Child 1] went to live in rental accommodation in [City 1] in October 2014, and no longer resided with her mother. However, Ms Rimmer told the tribunal that she continued to provide significant financial support for her daughter, paying for her private rent, food, tuition fees at [a performing arts company], school expenses, utilities, and repairs to the rental property. [Child 1] had a part time job at [employer] for only a few short months but was unable to continue due to her work load. She was not eligible for youth allowance from Centrelink, so [Child 1] was entirely reliant on Ms Rimmer’s support. Ms Rimmer also saw [Child 1] almost daily, took her shopping, and drove her daughter between [name] College and the [performing arts company] when she could. [Child 1] also spent time at Ms Rimmer’s home on weekends on a regular basis.

17.  Ms Rimmer provided a number of documents to substantiate the financial support she provided for [Child 1] from October 2014, including a lease in Ms Rimmer’s name and evidence of payments for rental, school fees for [name] College, tuition fees for [the performing arts company], electricity bills, and glass repairs.

18.  Mr Marrow said that he did not dispute the level of support Ms Rimmer provided for [Child 1]. When he advised the department of a change in care, he did not realise how much Ms Rimmer was paying for [Child 1]. He has contributed $50 per week since January 2015, which he pays directly to [Child 1]. He does not see [Child 1] regularly but contacts her by phone or text. [Child 1] spends one week or so with him in holiday and Christmas periods.

The conclusions of the tribunal

19.  The tribunal finds from the available evidence set out above that [Child 1] remained primarily in Ms Rimmer’s care, taking into account the relevant policy set out in the Guide because Ms Rimmer provided significant financial and emotional support for her daughter. Mr Marrow provided more limited financial support and has had occasional holiday care. Ms Rimmer told the tribunal that she did not disagree with the previously recorded care of 86% to her and 14% to Mr Marrow. The tribunal finds that the level of care provided by the parents from 1 November 2014 was consistent with the previously recorded care. The tribunal was therefore satisfied that there was no basis on which to record a change in care from 1 November 2014. Accordingly the Department’s decision to record a change in care of 0% for both parents must be set aside.

Date of effect of the tribunal’s decision

20.  The Child Support (Registration and Collection) Act 1988 sets out time limits on an application for review. Generally speaking an application must be made within a 28 day period after the person is notified of the decision. However, this time limit does not apply to a care percentage decision (section 90). Nevertheless, if the application for review is not lodged within 28 days of receiving the decision of the objections officer relating to care, the law limits the date of effect of the tribunal’s decision. Subsection 95N(1) states that if the tribunal varies or substitutes a decision on an objection to a care percentage decision; and the application for review was made more than 28 days after notice of the decision was given; then the decision as varied or substituted by the tribunal has or is taken to have had effect on and from the day the application for review was made. However, subsection 95N(2) provides that if the tribunal is satisfied that there are special circumstances that prevented the application for review being made within that period, the tribunal may determine that subsection (1) applies as if the reference to 28 days in that paragraph were a reference to such longer period as the tribunal determines to be appropriate.

21.  In the present case, Ms Rimmer told the Department that although she was advised she needed to lodge a review application after she received the objection decision letter, she did not have the resources to seek a solicitor nor to go through the expense of a tribunal process. As she was not getting any financial support, spending money not to receive any was pointless. It was not explained to her that the decision would affect her entitlement to family tax benefit.

22.  Ms Rimmer told the tribunal that she separated from her husband around the time [Child 1] moved to [City 1]. Her sister-in-law was also [seriously ill]. These events were traumatic and she did not cope well. It was not until the divorce was finalised that she felt able to deal with matters. Further, Ms Rimmer worked part time in an environment where she did not have access to the internet or a phone. She said that in any event, she was not concerned about child support but she did not realise that entitlement to family tax benefit might be affected by the Department’s decision. It was only when her claim for a lump sum payment of family tax benefit for 2014/15 was refused that she became aware of the effect of the child support decision as to care on her family tax benefit entitlement.

23.  The tribunal finds from this evidence that Ms Rimmer was aware of her right to seek a review of the decision made by the Department as to care in early 2015 but chose not to do so. In part this was due to a number of significant personal stressors she was experiencing at that time, but it is also the case that she was not concerned about non-receipt of child support and that is why she did not take the matter further. The tribunal was therefore not satisfied that there were special circumstances that prevented her from lodging an application for review with this tribunal within 28 days of receiving the letter dated 28 February 2015 advising her of the objection decision.

24.  This means that for child support purposes, the decision made by this tribunal can only take effect from the date of application, namely 4 March 2016.[1]

[1] The tribunal notes that Ms Rimmer’s main concern relates to her entitlement to family tax benefit, and there are different rules regarding the date of effect of care decisions under the legislation governing that payment. However, there is no decision relating to family tax benefit before the tribunal so those provisions have not been examined or discussed in these reasons.

DECISION

The tribunal:

(a)sets aside the decision under review and in substitution decides that from 1 November 2014 no change of care be recorded for [Child 1]; and

(b)decides not to 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 4 March 2016.

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