Sheahan and Le Beau (Child support)

Sheahan and Le Beau (Child support) [2024] AATA 3816 (13 September 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/SC027473
APPLICANT:  Mr Sheahan
OTHER PARTIES:  Child Support Registrar
Ms Le Beau

TRIBUNAL:Member J Thomson
DECISION DATE: 13 September 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentage determinations to be applied for the children [Child 1] and [Child 2] are 50% to Mr Sheahan and 50% to Ms Le Beau notified on 7 March 2022.

The Tribunal declines to make a subsection 87AA(2) determination pursuant to the Child Support (Registration and Collection) Act 1988 and the date of effect of the Tribunal’s new care percentage determinations can only be the date of Mr Sheahan’s objection on 4 October 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – existing percentage of care determinations revoked – new determinations made – 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

Mr Sheahan and Ms Le Beau are the parents of [Child 1], born in 2011 and [Child 2], born in 2013, (the children).
Mr Sheahan seeks review of an objection decision made by Services Australia (Child Support) on 13 January 2024. This decision disallowed his objection to an earlier decision of Child Support on 20 May 2022 to refuse to reflect the care of the children as 50% to Mr Sheahan and 50% to Ms Le Beau from 26 June 2021. The objection decision refused to reflect the care of the children as 50% to each parent from 26 June 2021.
The matter was listed for hearing by the Tribunal on 18 June 2024 but was rescheduled for hearing on 22 August 2024 to allow the parents time to receive their copies of the hearing papers and prepare for the rescheduled hearing.
The Tribunal heard the matter on 22 August 2024. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 275), admitted into evidence and marked Exhibit 1. Mr Sheahan provided documentation (folios A1 to A9), admitted into evidence and marked Exhibit A. Ms Le Beau provided documentation (folios B1 and B2), admitted into evidence and marked Exhibit B.
Mr Sheahan had copies of the Exhibit 1 and his Exhibit A documents with him at the hearing but had not received copies of Ms Le Beau’s Exhibit B documents. However, he was content to continue with the hearing without those documents. The Tribunal is satisfied Ms Le Beau’s Exhibit B documents contained nothing of relevance to the issues in the decision under review that was not adequately addressed in the evidence given at the hearing. However, copies will be sent to Mr Sheahan with the Tribunal’s decision in the matter.
Ms Le Beau did not have her copies of Child Support’s Exhibit 1 documents with her at the hearing nor did she have copies of Mr Sheahan’s Exhibit A documents or her Exhibit B documents with her at the hearing. However, she, also, was content for the hearing to proceed, notwithstanding she did not have these documents with her.
At the conclusion of the hearing, the Tribunal issued a request pursuant to section 33 of the Administrative Appeals Tribunal Act 1975 for the provision of an unredacted copy of Child Support’s letter dated 20 May 2022 notifying Mr Sheahan of its decision dated 20 May 2022 referred to above. Child Support has complied with the Tribunal’s request. Its response and the unredacted copy of that letter have been marked Exhibits C1 and C2 and added to Child Support’s documentation, Exhibit 1. Copies of these documents have been sent to Mr Sheahan for his consideration and comment. He did not respond.

ISSUES

The issues which arise in this case are:
·      Should the existing care percentages be revoked? and if so,
·      What are the new percentage of care determinations? and
·      What is the date of effect of the decision?

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the rescheduled hearing and the documentation contained in Exhibits 1, A and B before the Tribunal.
The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent ‘has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances’. Section 50 applies, relevantly, if the parent ‘has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances’. When there is an existing care determination for a child, a parent may notify the Registrar of a care change and the existing care determinations can be revoked under section 54F, 54G or 54H of the Act.
To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care being had or likely to be had by the parents by reference to an appropriate care period. Child Support generally considers a period of 12 months to be appropriate, but a longer period may be considered, depending on the circumstances of each case.
On 7 March 2022, Mr Sheahan notified Child Support of a change in care for the children which he said occurred on 29 June 2021 when Ms Le Beau left the parents’ jointly occupied apartment at [Suburb 1], New South Wales. Prior to his notification, the care percentages being assessed by Child Support were 26% to Mr Sheahan and 74% to Ms Le Beau. The new care percentages notified by Mr Sheahan were 50% to him and 50% to Ms Le Beau from 29 June 2021.
The Tribunal will consider the care pattern or likely care pattern of the parents for the children over a 12-month period from 29 June 2021 to 28 June 2022 (the care period).
To fully comprehend the care arrangements for the children during the nominated care period, it is essential to understand Mr Sheahan’s medical circumstances and the living arrangements of the parents from 29 June 2021.
Both parents acknowledged and agreed at the hearing that they had been living in a separated state but under the same roof until 29 June 2021 when Ms Le Beau moved to her own apartment. Up until that point, both parents agreed the care arrangements for the children were shared equal 50% care to each parent.
Ms Le Beau gave evidence that the apartment to which she moved was within walking distance of Mr Sheahan’s apartment, and to some extent, the children were moving freely between the parents’ respective apartments.
In his evidence to the Tribunal, Mr Sheahan submitted that a shared 50% week-about care arrangement continued from 29 June 2021 until 24 May 2023, when his care pattern dropped to 5 nights per fortnight and half the school holidays, the care pattern subsequently determined by Child Support in its care percentage decision of 11 November 2023 of 62% to Ms Le Beau and 38% to Mr Sheahan, in response to a change in care for the children from that date, notified by Mr Sheahan on 4 October 2023 (see pages 108 to 109 and 126 to 136 of Exhibit 1).
Although Ms Le Beau initially sought to challenge this care percentage determination, she subsequently accepted the determination (see Child Support’s file record of her acknowledgement at page 142 of Exhibit 1) and confirmed her decision not to challenge that determination in her evidence to the Tribunal at the hearing.
Mr Sheahan gave evidence at the hearing regarding negotiations he and Ms Le Beau had in August 2021, following her departure from the shared apartment the parents were occupying with the children up until 29 June 2021, in the course of which he said the shared 50% care arrangement was agreed (see the text message exchanges between the parents at page 12 of Exhibit 1) and recorded in a Family Court draft of Consent Orders signed by the parents and dated [in] August 2021, reflecting each parent having week‑about care and half the school holidays. A copy of this document was before the Tribunal at pages 13 to 17 of Exhibit 1.
Although Ms Le Beau challenged the authenticity of her signature appearing on the Family Court draft Consent Orders referred to above, the text messages and later evidence she gave in the course of the initial enquiries by Child Support officers in the prelude to the original care decision made on 20 May 2022 and at the hearing suggest she did not resile from the care arrangement reflected in the Family Court document at pages 13 to 17 of Exhibit 1, although both parents acknowledged and agreed that the draft Consent Orders were never lodged with the Family Court Registry and there was no evidence before the Tribunal of the Consent Orders being sanctioned by that Court.
In that regard, the Tribunal notes Ms Le Beau informed Child Support in a telephone conversation on 14 March 2022 (see pages 69 to 71 of Exhibit 1) that the care arrangement reflected in the Family Court document was something that was possibly going to happen at a future date, depending on Mr Sheahan’s health.
The issue of Mr Sheahan’s health situation from September 2021 to May 2022 was a significant topic of discussion in the evidence at the hearing.
The substance of Mr Sheahan’s health issues was summarised in [Doctor A’s] detailed unredacted report at page A1 of Exhibit A. This report reflects Mr Sheahan being diagnosed with a serious recurring cancer condition in 2021, for which he was receiving treatment at the [named health] Centre in Sydney. In September 2021 he underwent a major surgical procedure followed by four cycles of chemotherapy from [October] 2021 to [December] 2021 and further major surgical procedures [in] February 2023, requiring four months convalescence thereafter.
It was this instance of ill health which Ms Le Beau submitted made it impossible for Mr Sheahan to have the week-about shared care of the children from 29 June 2021 for which he contended in his change in care notification on 7 March 2022, recorded at pages 53 to 55 of Exhibit 1.
In her evidence to the Tribunal, Ms Le Beau related instances throughout the course of Mr Sheahan’s cancer treatment and convalescence from September 2021 to May 2022 when she drove Mr Sheahan to his medical appointments and to hospital for his surgical procedures. Although she initially suggested his apartment was not sufficient to accommodate the children for his week-about care periods, at the hearing she acknowledged and agreed that his was a two-bedroom apartment, and she conceded that she took the children to visit him regularly during this period.
She also acknowledged and agreed that the respective parents’ apartments were in close proximity to each other, facilitating easy access by the children as and when they pleased.
However, she also acknowledged and agreed that she had not maintained any contemporaneous record of the pattern of care the parents were having from 29 June 2021 when she moved out of the jointly shared family apartment.
Mr Sheahan also acknowledged that he had not maintained a contemporaneous record of the care he was providing for the children from 29 June 2021 although he gave evidence that the parents’ care pattern was consistently week-about care and half the school holidays, except when he was hospitalised for the surgical procedures described in [Doctor A’s] report referred to above.
However, he provided sworn statutory declarations, notably, from his mother, [Ms A] , and his brother, [Brother A], (see pages A2 and A3 and A6 and A7 of Exhibit A), attesting to the level of care they provided at Mr Sheahan’s request while he was in hospital and during his convalescence at his apartment in the period September 2021 to June 2022.
[Ms A’s] statement dated 2 April 2024 attests to her awareness of the 50% shared care arrangement for the children between Mr Sheahan and Ms Le Beau from the date of Ms Le Beau’s move out of the jointly occupied apartment in June 2021 until June 2023.
She attests to her awareness of Mr Sheahan’s cancer diagnosis in September 2021 and her moving from her home in [Town 1] into Mr Sheahan’s [Suburb 1] apartment to care for the children during his week-about care periods when he had his initial surgery followed by his chemotherapy treatment in October to December 2021, and again in February 2022 when he had further major surgery, of her taking him to hospital for his treatment and surgical procedures, taking the children to school, collecting them in the afternoon and taking them to her house for her week-about care periods.
She also attests to the children staying with Mr Sheahan in his apartment for consecutive weeks during the September 2021 to February 2022 period.
Mr Sheahan’s [Brother A's] statutory declaration dated 27 June 2024 affirms the parents’ 50% shared care arrangement in place for the children from 29 June 2021 to 7 June 2023. He attests to his having provided support for Mr Sheahan and the children while he was undergoing cancer treatment in this period, staying overnight at Mr Sheahan’s apartment to assist with cooking of meals, preparation of school lunches for the children, transporting them to and from school and generally assisting with the daily running of the house. He also attests to the children staying with Mr Sheahan for extended periods beyond Mr Sheahan’s normal week-about care cycles during the period he was receiving his cancer treatment and convalescing.
Mr Sheahan gave evidence that following his surgical procedure in February 2022, he took approximately 12 weeks to fully recover sufficiently to be able to manage caring for the children independently. However, in the period of recouperation, he gave evidence that his mother, [Ms A], visited his apartment on a daily basis to assist with the care of the children, staying in her own Sydney-based [Suburb 2] apartment, until May 2022, by which time he said he was well enough to look after the children without her assistance.
The evidence of the parents regarding their respective care patterns for the children from May 2022 until May 2023 was that Mr Sheahan was having approximately 5 to 7 nights of care per fortnight, depending on the state of his health, and it was not until he submitted a new care proposal to Ms Le Beau on 24 May 2023 that Ms Le Beau said she turned her attention to the issue of the children’s care.
Ms Le Beau acknowledged and agreed at the Tribunal hearing on 22 August 2024 that she accepted the parents’ care pattern from 29 June 2021 to 24 May 2023 was 50% shared care.
The substance of Mr Sheahan’s new care proposal is set out in the text message exchanges between the parents at pages 113 and 114 of Exhibit 1 and constitutes the basis for the further change in care determined by Child Support in its decision at pages 126 and 127 of Exhibit 1 of 62% to Ms Le Beau and 38% to Mr Sheahan. As noter earlier in these Reasons, both parents acknowledged and agreed that neither of them has sought to challenge that care percentage determination.
The Tribunal finds the evidence, on balance, is that from 29 June 2021 to 28 June 2022, the parents’ pattern or likely pattern of care of the children was 50% shared equal care, and that this was the pattern or likely pattern of care until 24 May 2023.
As the Tribunal has reached a different conclusion to that reached by the objections officer in the decision under review, finding that the pattern or likely pattern of care of the parents from 29 June 2021 to 28 June 2022 was 50% shared equal care to each parent, the cost percentages of the parents pursuant to the pre-existing care percentages of 74% to Ms Le Beau and 26% to Mr Sheahan will change from 74% to Ms Le Beau and 26% to Mr Sheahan to 50% to each parent.
The Tribunal considers section 54G of the Act has no application to this case. However, as the Tribunal has found the 50% shared equal care actually taking place in the care period does not correspond with the pre-existing care percentages referred to above and the parents’ cost percentages will change as a consequence, the Tribunal finds section 54F of the Act applies and accordingly revokes the pre-existing care percentages of 74% to Ms Le Beau and 28% to Mr Sheahan pursuant to section 54F of the Act, replacing them with care percentages of 50% shared equal care to each parent, notified by Mr Sheahan on 7 March 2022.
As Mr Sheahan notified Child Support of the change in care on 7 March 2022 (see page 53 of Exhibit 1) and the change occurred from 29 June 2021, pursuant to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked, for the parent with increased care, from the day before the date of notification of the change in care and, for the parent with reduced care, from the day before the change occurred. The date of effect of the revocation would therefore be 6 March 2022 for Mr Sheahan and 28 June 2021 for Ms Le Beau.

Date of effect of the new care percentage determination

Child Support rejected Mr Sheahan’s change in care notification on 20 May 2022 and sent letters to the parents dated 20 May 2022 notifying them of its decision.
Mr Sheahan did not lodge his objection to Child Support’s original decision of 20 May 2022 until 4 October 2023, considerably more than 28 days outside the statutory period for objecting to that decision.
He cited as his reason for his failure to lodge his objection within the 28-day statutory timeframe his recurring bouts of illness consequent upon his cancer treatment. However, he gave evidence at the hearing that since approximately June 2022, following his February 2022 post-operative 12-week convalescent period, he was recovered sufficiently to provide care of the children without his family’s support.
He also submitted that he did not receive Child Support’s letter of 20 May 2022 notifying him of its original decision of that date, posted to his address, recorded by Child Support at that time. In response to questioning by the Tribunal at the hearing, he acknowledged and agreed that he had not kept Child Support informed of his change of address, which was his obligation to do so, and that this was the more likely cause of his failure to lodge his objection within time.
The Tribunal is not satisfied he has established special circumstances, as contemplated in subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Registration Act), that prevented him from lodging his objection within time. Consequently, the date of effect of the Tribunal’s decision, as prescribed by subsection 87AA(1) of the Registration Act, will be the date of his objection, that being 4 October 2023.
The Tribunal noted there was another care change from 24 May 2023 (see page 241 of Exhibit 1) which is not the decision before the Tribunal for review. That care change determination will end the care change determination in this decision.
As Mr Sheahan’s objection was made late, the date of effect provisions place the date of effect in the time period of the new 24 May 2023 care determination. As such, the care determination in this decision will not take that effect.

DECISION

[2024] AATA 3816

13 September 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Remedies