Saba and Yarber (Child support)

[2020] AATA 5125

Saba and Yarber (Child support) [2020] AATA 5125 (9 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019625

APPLICANT:  Ms Saba

OTHER PARTIES:  Mr Yarber

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  9 October 2020

DECISION:

(a)The decision under review is varied so that Ms Saba is recorded as providing 50% care and Mr Yarber is recorded as providing 50% care to [Child 1] with effect from 11 January 2020; and

(b)a determination is not made pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, and consequently the Tribunal’s decision takes effect from 7 August 2020.

This means that, at a practical level, Ms Saba’s application for review is unsuccessful.

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 varied

CHILD SUPPORT – date of effect of the tribunal’s decision – whether there were special circumstances that prevented the application for review being lodged in time –  circumstances do not exist – tribunal refuses to make a determination – the date of effect of the tribunal’s decision is the date the application for review was lodged

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

1. Ms Saba and Mr Yarber are the parents of [Child 1] who was born in 2006. A child support case was most recently registered on 20 October 2019 with what is commonly called the Child Support Agency, or CSA.

2. On 20 December 2019 the CSA decided to record Mr Yarber as providing 100% care to [Child 1] with effect from 20 October 2019. I will return to that decision shortly, although it is not the decision under review.

3. On 6 January 2020, Ms Saba stated that a change in care occurred on 28 December 2019, and each parent started providing 50% care from that date. Mr Yarber disagreed with Ms Saba’s account of events, and on 4 February 2020 he effectively stated that a change in care did not occur until 29 January 2020, and each parent started providing 50% care from that date. The CSA decided to record each parent as providing 50% care with effect from 29 January 2020. Ms Saba promptly objected to that decision. On 29 May 2020 an objections officer disallowed her objection. On 7 August 2020, Ms Saba belatedly applied to the Tribunal for further review. I heard the matter on 9 October 2020. Ms Saba and Mr Yarber gave sworn evidence by conference phone.

4. Mr Yarber’s position is summarised in his written submissions dated 29 March 2020:

[Child 1] was in my sole parental care from 19 October 2019 to 29 January 2020. This due to [Child 1]’s choice to estrange himself from his mother. …

I encouraged [Child 1] to return to shared care with his mother as soon as he felt comfortable. [Child 1] and I agreed that would occur at [the] commencement of term 1 of the school year. We agreed that he should visit his mother for [a] period during the Christmas holidays to allow him to reconnect with his mother and be settled prior to returning to shared care on 29 January 2020. [Child 1] was still in my sole care and he and I had an understand that if he felt that he could not deal with the environment at his mother’s house then he could leave and come back to his home with me.

As an aside, [Child 1] was not under his mother’s care or supervision for 4 nights from 30 December 2019 to 3 January 2020 when [Child 1] was on holidays at [Town 1] with family friends (as evidenced by [train] tickets supplied by [Ms Saba] in her objection).

1. Regardless of the difficulties that had arisen in Ms Saba and [Child 1]’s relationship, she remained his mother and when he was with her, he was in her care, notwithstanding any agreement that Mr Yarber and [Child 1] might have reached to the contrary. As for the trip to [Town 1], there was no dispute that [Child 1] was with Ms Saba on the nights of 28 and 29 December 2019, and then she arranged for him to stay with a friend and the friend’s family for four nights commencing on 30 December 2019, and then [Child 1] returned to Ms Saba and stayed with her on the night of 3 January 2020. [Child 1] was in Ms Saba’s care at the start and the end of that period, and given that she arranged for him to stay with a friend and the friend’s family during the middle of that period, I find that he was in her care throughout that period.

2. Having made those findings of fact, there was otherwise no dispute that Ms Saba provided care on the following nights during December 2019 and January 2020:

   ·    12/12/19 - 16/12/19    (5 nights)

   ·    24/12/19                     (1 night)

   ·    28/12/19 - 03/01/20    (7 nights)

   ·    11/01/20 - 17/01/20    (7 nights)

   ·    25/01/20 - 31/01/20    (7 nights)

3. That simple chronology suggests that each parent started providing 50% care from 28 December 2019, but a complication arises from the facts upon which the earlier decision to record Mr Yarber as providing 100% care with effect from 20 October 2019 were based. It appears that a CSA employee reviewed the history of the case on 16 June 2020 and noted the following:

   A care decision was made from 20/10/2019 to reflect [Mr Yarber] had 100% care. Both parties confirmed as part of this new care arrangement [Ms Saba] would have care in Dec / Jan holiday periods. The notes in relation to this change in care reflect it was expected that [Ms Saba] would have care in the following periods:

   In the future he plans to stay with his mother on the following nights:

   Thursday 12 December to Sunday 22 December 2019 (4 nights)[1]

   Tuesday 24 December 2019 (1 night)

   Saturday 28 December 2019 to Friday 3 January 2020 (7 nights)

   As of writing this letter on 12 December 2019 there are no permanent arrangements for [Child 1] to be in any regular care arrangements with his mother going forward into 2020.

   [Mr Yarber]’s argument in the objection is that the care in December was part of the prior care decision and not a new event. [Mr Yarber] argues the event date is the commencement of school term 2020 which is the date used.

   Given the documentation, it suggests we should not have reflected 100% care to [Mr Yarber] from 20/10/2019 as this didn’t include the expected holiday care in December 2019. However there is no objection in relation to this decision.

   [1]I have corrected obvious typographical errors in the file note, but this inconsistency appears in the original file note and it is not clear what the writer had intended to write.

4. It appears that the occasional care that Ms Saba was expected to provide up until 3 January 2020 was taken into account when making the decision to record Mr Yarber as providing 100% care from 20 October 2019. Importantly, Ms Saba did not object to that decision. It follows that her provision of the care that she had been expected to provide, and upon which the earlier care decision had been based, did not constitute a change in care. However, her provision of seven nights of care every fortnight from 11 January 2020 did constitute a change in care. To put the matter more formally, it was from that point that Ms Saba was providing a pattern of care that equated to a cost percentage (namely 50%) that was different to her existing cost percentage (namely 0%): sections 50, 54F and 55C of the Child Support (Assessment) Act 1989. The preferable decision is therefore to record Ms Saba as providing 50% care and Mr Yarber as providing 50% care with effect from 11 January 2020.

5. There is one further complication. Section 95N of the Child Support (Registration and Collection) Act 1988 (“the Collection Act”) relevantly provides that if the Tribunal varies or substitutes a care decision, and if the application for review was made more than 28 days after the person was given a notice of the objections officer’s decision, then the Tribunal’s decision has effect on and from the day on which the application for review was made. An exception applies if “there are special circumstances that prevented” the application for review from being made within 28 days, in which case a determination can be made pursuant to subsection 95N(2) of the Collection Act to effectively extend the 28-day period.

6. The objections officer’s reasons for disallowing Ms Saba’s objection included the following: “[Ms Saba] has claimed the care of [Child 1] changed on 28 December 2019 but has provided no evidence in support of her claims.” That statement was incorrect. Ms Saba had provided evidence in support of her account of events.

7. The objections officer’s decision was posted to Ms Saba on 29 May 2020. Ms Saba contacted the CSA on 11 June 2020 and pointed out the error in the objections officer’s reasons. The CSA informed her that it would investigate the matter and then contact her. On 16 June 2020, Ms Saba contacted the CSA again. It appears that it then conducted the investigation that it had said it would conduct — see the file note above — but it is not clear that it informed her of the findings of that investigation. The file note concludes: “It is for this reason that we should advise [Ms Saba] to proceed to AAT if she disagrees with the outcome.” On 18 June 2020 the CSA noted:

   Phone attempt to [Ms Saba] regarding follow up on Objection.

   Phone rang out - unable to leave message.

8. On 7 August 2020, Ms Saba contacted the CSA again. It advised her to apply to the Tribunal for review, and Ms Saba did so immediately.

9. The difficulty that Ms Saba faces is that the objections officer’s letter dated 29 May 2020 included the following (with bold in the original):

   If you do not agree with this decision

   If you think this decision is wrong, you can asked the Administrative Appeals Tribunal (AAT) to review it. You must do with within 28 days from the date you receive this letter. You can contact the AAT by going to their website aat.gov.au or calling them on 1800 228 333.

10. At the hearing, I asked Ms Saba why she did not apply for review by the Tribunal sooner. She explained that she was confused about the process generally, and the decisions that the CSA had made. She noted that the objections officer had failed to take into consideration the evidence that she had provided. She explained that it is difficult to contact the CSA, and when she phoned the CSA she was placed on hold for exceedingly long periods of time. I accept her evidence on those issues, and if there was a general discretion to extend the 28‑day period, I would exercise it in her favour. However, there is no such general discretion. The 28-day period can only be extended if there were special circumstances that prevented Ms Saba from applying for review within the 28-day period. Applying for review by the Tribunal is a very simple process. The application can be lodged over the phone and registry staff are usually able to answer calls promptly. There were no circumstances preventing Ms Saba from promptly applying to the Tribunal for review. It follows that the decision to record each parent as providing 50% care to [Child 1] from 11 January 2020 can only have effect from the date that Ms Saba applied for review by the Tribunal, which was 7 August 2020. She is already recorded as providing 50% care with effect from 29 January 2020, so, at a practical level, her application for review is unsuccessful.

DECISION

(a)The decision under review is varied so that Ms Saba is recorded as providing 50% care and Mr Yarber is recorded as providing 50% care to [Child 1] with effect from 11 January 2020; and

(b)a determination is not made pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, and consequently the Tribunal’s decision takes effect from 7 August 2020.

This means that, at a practical level, Ms Saba’s application for review is unsuccessful.