Roper and Child Support Registrar (Child support)

[2022] AATA 229

Roper and Child Support Registrar (Child support) [2022] AATA 229 (13 January 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022250

APPLICANT:  Miss Roper

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member H Moreland

DECISION DATE:  13 January 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 12 May 2021, Miss Roper had 100% of [Child 1]’s care and [Mr A] had 0% care. For the reasons provided in paragraphs 10–14, the date of effect of the Tribunal’s decision is 8 September 2021, the date Miss Roper made her application for review with the Tribunal.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – date of effect of the tribunal’s decision – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines to make a determination under subsection 95N(2) – 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 DECISION

BACKGROUND

1. Miss Roper and [Mr A] are the parents of [Child 1], as well as [Child 2], [Child 3], [Child 4] and [Child 5]. The care of [Child 1] only is the subject of this review.

2. On 13 May 2021, Services Australia – Child Support (Child Support) determined that [Mr A] had a percentage of care for [Child 1] of 100% and that Miss Roper had a percentage of care of 0% from 12 May 2021.

3. Miss Roper lodged an objection to this decision on 3 June 2021. This objection was disallowed by an objections officer on 5 August 2021. On 8 September 2021, Miss Roper lodged an application to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. The hearing took place on 13 January 2022. Miss Roper spoke to the Tribunal via conference telephone and gave sworn evidence. [Mr A] informed the Tribunal registry that he did not want to participate in the proceedings and was consequently removed as a party. In making its decision, the Tribunal considered the documents provided by Child Support (51 pages), which were also sent to Miss Roper.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

What was the care of [Child 1] from 12 May 2021?

1. As shown in the Child Support papers, Child Support accepted a care determination made by the Family Assistance Office on 13 May 2021, that the care of [Child 1] had changed. The Child Support papers show that from the commencement of the Child Support case on 11 November 2019 (initially notified on 9 December 2019), Miss Roper was recorded as having a care percentage of 100% for [Child 1] and [Mr A] was recorded as having a care percentage of 0% for [Child 1].

2. Miss Roper told the Tribunal that [Mr A] had contacted her to inform her that he was moving to a new home and that [Child 1] would be living with him. Miss Roper told the Tribunal that she accepted this and decided to be proactive and inform the Family Assistance Office of the change in care because, she said, she did not want to incur a debt. It was on the basis of this phone call, that the Family Assistance Office decided to record the care of [Child 1] as being 100% in the care of [Mr A] and 0% in the care of Miss Roper from 12 May 2021.

3. Miss Roper told the Tribunal that despite the plan for [Mr A] to collect [Child 1], he never picked [Child 1] up and the care didn’t actually change. Miss Roper told the Tribunal that [Child 1] has remained in her home, attending the same school in [Town] and that [Mr A] lives four hours drive away, in the [City] area.

4. The Tribunal found no reason to not believe Miss Roper’s contention that there was never a care change, particularly as there is no evidence before the Tribunal that the care did change.

5. Accordingly, the Tribunal is not satisfied that there was a change in the care of [Child 1] from 12 May 2021 and the previous care determination should not have been revoked.

Date of effect of the Tribunal’s decision

10.Section 95N of the Registration Act 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 28 days, the Tribunal may allow for a longer application period.

11.In this case, the objection decision was made on 5 August 2021 and Miss Roper lodged her appeal of that decision on 8 September 2021 (a period of 34 days).

12.Miss Roper told the Tribunal that she had a lot of paperwork at the time, particularly in relation to her other son [Child 3] but there was no particular reason that she had not made an application for a review of the objections officer’s decision within 28 days.

13.The Tribunal is not satisfied that Miss Roper’s circumstances could be regarded as special circumstances such that she was prevented from lodging an application for review with the Tribunal within 28 days of the objection decision on 5 August 2021. The Tribunal has therefore determined that the discretion contained in section 95N should not be exercised in Miss Roper’s favour to give effect to this decision earlier than the date the application was lodged with the Tribunal.

14.Accordingly, the date of effect of the Tribunal’s decision in respect of Miss Roper having a percentage of care of 100% and [Mr A] having a percentage of care of 0% for [Child 1], will be 8 September 2021, the date Miss Roper made her application for review with the Tribunal.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that from 12 May 2021, Miss Roper had 100% of [Child 1]’s care and [Mr A] had 0% care. For the reasons provided in paragraphs 10–14, the date of effect of the Tribunal’s decision is 8 September 2021, the date Miss Roper made her application for review with the Tribunal.