Sherman and Mehaffy (Child support)

[2020] AATA 1766

Sherman and Mehaffy (Child support) [2020] AATA 1766 (23 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/SC013200; 2020/SC018429

APPLICANT:  Mrs Sherman

OTHER PARTIES:  Child Support Registrar

Mr Mehaffy

TRIBUNAL:Member S Letch

DECISION DATE:  23 April 2020

DECISION:

The Tribunal decides to:

(a)refuse Mrs Sherman’s request for reinstatement of application 2017/SC013200;

(b)affirm the objection decision of 19 October 2017 to record care of the children as 93% to Mr Mehaffy and 7% to Mrs Sherman.

CATCHWORDS

CHILD SUPPORT – reinstatement of application for review – application for review dismissed by consent – no error found – application for reinstatement refused

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations correctly revoked and new determinations made - decision under review affirmed

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. Mrs Sherman and Mr Mehaffy are the parents of [Child 1], [Child 2], [Child 3] and [Child 4] (the children).

2. Care for the  children had been recorded as 50% to each parent when, on 19 April 2017, Mr Mehaffy advised the Child Support Agency (CSA) that his level of care had significantly increased (calculated by the CSA as 93%).

3. On 26 June 2017, the CSA refused to change the existing care percentages. Mr Mehaffy objected, and on 19 October 2017, an objections officer allowed Mr Mehaffy’s objection. It was determined that care for the children should be recorded as 93% to Mr Mehaffy and 7% to Mrs Sherman from 31 March 2017.

4. On 29 December 2017, Mrs Sherman applied for review by the Tribunal. On 1 March 2018, it is recorded that Mrs Sherman advised a Tribunal member that she did not wish to proceed with her application. As all parties consented to dismissal, the matter was dismissed on 1 March 2018. Mrs Sherman applied for reinstatement on 23 January 2020, in addition to bringing a fresh application against the original objection decision on 17 February 2020.

5. Mrs Sherman and Mr Mehaffy participated in the Tribunal’s hearing by conference telephone.

6. Mrs Sherman’s evidence about her request for reinstatement was consistent with her written application to the Tribunal (unedited):

   Due to domestic violence i was unable to take the calls. At the time i was living with my ex husband seperated under the same roof. Just prior to the phonecall on the 1st march of 2018 my ex husband,Mr Mehaffy came into my living area and threatened to kick me out of the house and pack up my belongings if I took the AAT call. I was under duress and i never got to have my say. I moved out on the 15th november 2019 due to similar threats and financial ,physical and emotional domestic violence. I explained to the AAT that it wasnt safe for me to take the call and i was in threat of becoming homeless. The matter was dismissed under clause 24 a. Now that i am in a safe place I would like these matters to be heard.

7. Mrs Sherman did not appear to seriously dispute that she had advised the Tribunal at the time that she consented to dismissal; however, she suggests she did so under duress.

8. There are very limited grounds for an application to be reinstated. Subsection 42A(10) of the Administrative Appeals Tribunal Act 1975 allows reinstatement where an application has been dismissed “in error”. The Tribunal’s records reveal Mrs Sherman advised she consented to dismissal; the Tribunal took Mrs Sherman’s submission as not seriously suggesting she had not done so.

9. The Tribunal understood Mrs Sherman’s position and has no reason to doubt she genuinely felt under pressure to discontinue. However, an application can only be reinstated if there was some sort of error by the Tribunal; the Tribunal is satisfied that Mrs Sherman verbally gave her consent, and that the matter was therefore properly dismissed. There is no power to reinstate the application as there was no error by the Tribunal; the reasons Mrs Sherman decided to discontinue – as understandable as they may be – do not assist her.

10. Given the matter was dismissed without proceeding to a substantive review of the original decision, Mrs Sherman was entitled to bring a fresh application; she did so on 17 February 2020. As advised to her during the hearing, even in the event it could be established that the original decision should be changed, the date of effect of the decision would be the date she brought her application on 17 February 2020 (unless there were special circumstances which prevented a timely application: section 95N of the Child Support (Registration and Collection) Act 1988). This would render the application moot as subsequent care changes have occurred.

11. The Tribunal also observes it must determine what the pattern, or likely pattern of care, was as of the date of Mr Mehaffy’s notification on 19 April 2017 (and whether the notification was provided within 28 days of the change). Subsequent changes to the pattern of care, and any subsequent decisions, are not presently before the Tribunal.

12. Mrs Sherman told the Tribunal that there had not been any change in care until June 2017; as of April 2017, care was continuing on an equal basis (she would have four nights in one week, and three in the next, on a rolling fortnightly basis). Mrs Sherman confirmed that in February 2017, she moved to a property in [Suburb 1] (prior to that, she was living in a unit in [Suburb 2], and care was being shared equally). Contrary to Mr Mehaffy’s representations to the CSA, there was running water and power. Mrs Sherman said the arrangements were for equal care, with some flexibility around work commitments. She maintained there was no change in the care arrangements when she moved to [Suburb 1]; Mrs Sherman said it “got cold” in June and this is when care changed. She said Mr Mehaffy was “making life difficult” and she “gave in and gave him what he wanted”.

13. Mr Mehaffy told the Tribunal Mrs Sherman moved to a two-bedroom unit in [Suburb 2] with her boyfriend, and the children were “living in a garage” on a lower floor. He got “child services” involved. He said when Mrs Sherman moved to [Suburb 1] with her boyfriend in February 2017, they were living “in tents”; he said there is still no running water and power at the property. He said the children “barely stayed at all” – perhaps one or two nights – in [Suburb 1] as the children did not want to stay there in rugged conditions. He maintains that his advice to the CSA on 19 April 2017 (folio 33 of the CSA materials) that the children had only stayed at most three or four nights since the end of February 2017 was accurate.

14. The Tribunal must form a view as to the pattern, or likely pattern, of care. The task is made more difficult by the passage of time. Mr Mehaffy has been materially consistent in his reporting of the arrangements of the relevant time. The Tribunal observes it did not place any weight on statements from parties not at arm’s length submitted by Mr Mehaffy to the CSA; however, the CSA fixed upon late March 2017 as the likely date of the change in care on the basis of a statement by the Principal of [School 1] (folio 70 of the CSA materials). On balance, the Tribunal considers it likely there was material change at that time. The Tribunal accepts that conditions at [Suburb 1] were not likely to have been viewed by the children as ideal and that care likely began to “tail away” from late February 2017, crystallising in a material change to the pattern in late March 2017. Given Mr Mehaffy reported the change within 28 days, the change will take effect in the assessment from 31 March 2017.

15. As this is the same conclusion as the objections officer, the decision under review will be affirmed. Given the Tribunal is not making a decision to increase Mrs Sherman’s recorded care, the Tribunal is not required to consider the “date of effect” issue and whether there were special circumstances which prevented Mrs Sherman bringing a timely application to the Tribunal.

DECISION

The Tribunal decides to:

(a)refuse Mrs Sherman’s request for reinstatement of application 2017/SC013200;

(b)affirm the objection decision of 19 October 2017 to record care of the children as 93% to Mr Mehaffy and 7% to Mrs Sherman.