Teague and Monti (Child support)

[2021] AATA 3693

Teague and Monti (Child support) [2021] AATA 3693 (29 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021433

2021/BC021527

APPLICANT:  Ms Teague

OTHER PARTIES:  Child Support Registrar

Mr Monti

TRIBUNAL:Member M Douglas

DECISION DATE:  29 June 2021

DECISION:

In Review Number 2021/BC021433 the Tribunal sets aside the decision under review and, in substitution, decides that the objection Mr Monti lodged on 25 January 2021 to the care percentage decision made on 13 June 2019 is disallowed and the care percentages for [Child 1] remain as 49% for Ms Teague and 51% for Mr Monti from 18 April 2019.

In Review Number 2021/BC021527 the Tribunal sets aside the decision under review and, in substitution, decides that the objection Mr Monti lodged on 25 January 2021 to the care percentage decision made on 16 November 2019 is disallowed and the care percentages for [Child 1] remain as 28% for Ms Teague and 72% for Mr Monti from 7 November 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no changes to patterns of care at relevant times – no basis to revoke care percentage determinations - 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 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 Teague has applied for review of two objection decisions relating to the care percentages determined for her and Mr Monti’s daughter, [Child 1].  It is convenient to deal with both matters together.

2. The Tribunal notes that the Registrar acts through staff employed by the Government department known as Services Australia.  A reference to Services Australia in this decision is to be read as a reference to the Registrar.

3. The earliest objection decision was issued by Services Australia on 31 March 2021 and responded to an objection Mr Monti lodged on 25 January 2021 to a care percentage decision Services Australia made on 13 June 2019.  The decision on 13 June 2019 was to revoke the existing care percentages for [Child 1] with effect on 17 April 2019 and to determine new care percentages for [Child 1] of 49% for Ms Teague and 51% for Mr Monti.  The existing care percentages that were revoked were 100% for Mr Monti and 0% for Ms Teague.  Services Australia by its decision in response to Mr Monti’s objection was to determine new percentages of care for [Child 1] of 57% for Mr Monti and 43% for Ms Teague. 

4. The Tribunal’s review of that decision bears Review Number 2021/BC021433.

5. The second objection decision the Tribunal is reviewing was made by Services Australia on 1 April 2021 and responded to an objection that Mr Monti also lodged with Services Australia on 25 January 2021. That objection related to a decision Services Australia made on 16 November 2019 to apply from 7 November 2019 the care percentages for [Child 1] that Centrelink had determined, which were 72% for Mr Monti and 28% for Ms Teague. Services Australia’s decision of 16 November 2019 was in accordance with subsection 54K(1) of the Child Support (Assessment) Act1989 (the Assessment Act).

6. The Tribunal observes that in accordance with subsection 54K(1) Centrelink’s decision had effect as if it were a determination that Services Australia made regarding the care percentages for [Child 1] under the relevant provisions of Subdivision B of Division 4 of the Assessment Act. In other words, when considering the objection Mr Monti made to that decision, Services Australia was required to follow the same steps that would be applicable when considering an objection to a care percentage determination made under Subdivision B of Division 4 of Part 5 of the Assessment Act.

7. Services Australia’s decision on Mr Monti’s objection to that decision was to allow his objection and to determine new percentages of care for [Child 1] of 88% for Mr Monti and 12% for Ms Teague from 7 November 2019. 

8. The Tribunal’s review of that objection decision bears Review Number 2021/BC021527.

9. The Tribunal heard Ms Teague’s applications on 29 June 2021.  She and Mr Monti both participated in an audio hearing that was conducted using Microsoft Teams.  Both gave affirmed oral evidence.  No one from Services Australia participated, which is customary.  Services Australia however provided to the Tribunal, and to Ms Teague and Mr Monti, the documents it had that were related to its objection decisions. These comprised 230 pages and were paginated (the hearing papers).

10. The Tribunal has had regard to Ms Teague and Mr Monti’s oral evidence and also to the documents Services Australia provided.

CONSIDERATION

1. The Tribunal’s review of the objection decisions must be done from the point in time Services Australia made the original care percentage decision to which the respective objection related.  This is because the revocation of an existing care percentage determination and the determination of a new care percentage contain a temporal element.  They contain a temporal element because they require consideration of what, if any, pattern of care a parent will have of their child during a care period. The care percentages determined, based on that consideration, are applied, in accordance with subsection 54B(1A), for each day of a child support period until the determination is revoked.  Hence, because what is being decided is what a parent’s care percentage is to be for a period of time, which involves consideration of what the parent’s pattern of care of their child will be over a care period, the decision necessarily involves a temporal element. 

2. Because the Tribunal must consider these matters from the point in time at which the original decisions were made, the Tribunal can only take into account events that had occurred preceding the date of the particular decision under review.[1]  Whilst the Tribunal may consider evidence that came into existence after that time, that evidence must relate to events that occurred before the date of the relevant decision.

   [1] See Shi v Migration Agents Registration Authority [2008] HCA 31 per Kiefel J at [143] and Frugtniet v Australian Securities & Investments Commission [2019] HCA 16 at [15]

3. Restated simply, what the Tribunal is doing in each matter is considering, based on what was known at the time the respective original decision was made, whether there was a change in the care of [Child 1] such that the care percentages used in the child support assessment for her should be revoked and, if so, whether and what different care percentages should apply. 

4. There is really no dispute between Mr Monti and Ms Teague regarding the facts of this matter.

5. Ms Teague’s evidence was that she has serious issues with her mental health, having been diagnosed with PTSD and anxiety and depression.  That has affected what care she has been able to have of [Child 1]. 

6. It is not in contest that prior to 18 April 2019 Ms Teague had limited care of [Child 1].  However, she and Mr Monti agreed that from that date they would share in the care of [Child 1] such that [Child 1] would spend equal time with each of them.  Following their agreement, Ms Teague completed a form to submit to Centrelink that both she and Mr Monti signed on 12 May 2019, in which it was stated that she and Mr Monti each had 50% care of [Child 1]. 

7. The Tribunal observes that at page 36 of the hearing papers there is a record that an officer of Services Australia made, following that officer contacting Mr Monti regarding whether there had been a change in [Child 1]’s care, in which Mr Monti’s response is noted as confirming that from 18 April 2019 he and Ms Teague had each been having 50% care of [Child 1].

8. Ms Teague also provided to Services Australia a calendar that she had prepared in which she had marked the dates upon which she had care of [Child 1] between 18 April 2019 and the end of December 2020.  That appears at page 138 of the hearing papers. That reveals that in the period from 18 April to 13 June 2019, being the date upon which Services Australia made the original decision that was the subject of Review Number BC021433, [Child 1] stayed with Ms Teague on 25 of the 52 nights comprising that period.

9. Mr Monti did not dispute the accuracy of the calendar Ms Teague provided to Services Australia.  He also did not dispute Ms Teague’s evidence to the effect that they had come to an agreement that they would share the care of [Child 1] equally.  Further, he confirmed that he signed the Centrelink form that Ms Teague had presented to him and which Ms Teague subsequently submitted to Centrelink, in which he confirmed that the care of [Child 1] would be 50% to him and 50% to Ms Teague.

10. The period between 18 April and 9 June 2019 comprised 56 nights. [Child 1] resided with Ms Teague on 29 nights which represents 52% of those nights.  Having regard however, to the evidence of Ms Teague and Mr Monti relating to their agreement as to how they would care for [Child 1], the Tribunal is satisfied that if a longer care period of 12 months commencing from 18 April 2019 were to be considered so as to establish what the likely care of [Child 1] would be within that period, then as at 9 June 2019, the correct decision with respect to what [Child 1]’s care would be, would be that she would likely be in Ms Teague’s care and Mr Monti’s care for roughly equal time.  Simply put, the decision that Services Australia made on 13 June 2019 was the preferable decision to have been made rather than the objection decision made on 31 March 2021.

11. Accordingly, in Review Number 2021/BC021433 the Tribunal will set aside the objection decision and disallow Mr Monti’s objection to it.

12. Ms Teague’s evidence to the Tribunal was that because of issues relating to her mental health, she experienced hardship in caring for [Child 1] for half of the time.  She said that she spoke with her partner and they decided she should reduce her care of [Child 1].  She and her partner then spoke with Mr Monti and his partner in September or October of 2019 and came to an agreement whereby [Child 1] would start to reside with Mr Monti more often than what had been the case since 19 April 2019.  Ms Teague said that she and Mr Monti then completed another Centrelink form that they both signed in which they indicated that Mr Monti’s care of [Child 1] would be 72% and Ms Teague’s care would be 28%.  Ms Teague’s evidence was that she submitted that form to Centrelink, but she did not retain a copy of it and has subsequently been unable to recover a copy of it from Centrelink.  The Tribunal accepts her evidence in that regard given that Centrelink changed the percentages of care to 72% to Mr Monti and to 28% to Ms Teague.  Further, Mr Monti did not cavil with Ms Teague’s evidence on this issue.

13. The Tribunal notes that in the calendar that Ms Teague provided to Services Australia that from September 2019 she had reduced care of [Child 1].  The calendar indicates that in September 2019 [Child 1] resided with her on 9 nights, that in October 2019 she resided with her on 10 nights and in November, until 19 November 2019, she resided with her on 4 nights.  In other words, in that period of 79 nights, [Child 1] resided with Ms Teague for 23 nights, which represents 29% of the time. 

14. Again, Mr Monti did not dispute the accuracy of Ms Teague’s calendar. 

15. Noting the agreement Ms Teague and Mr Monti struck around November 2019 regarding what care they would have of [Child 1], and noting what was recorded in Ms Teague’s calendar, it seems to the Tribunal that the correct or preferable decision that ought to be made regarding the care of [Child 1] when considered as at 19 November 2019, was that Ms Teague would have care of [Child 1] for 28% of the nights of the year and Mr Monti for 72% of the nights of the year.  In other words, the decision that Services Australia made on 16 November 2019 was the correct decision and Services Australia’s subsequent decision on 1 April 2021 in response to Mr Monti’s objection was incorrect.  Accordingly, the Tribunal will also set aside the objection decision and disallow Mr Monti’s objection and restore the care percentages that were determined by the initial care percentage decision of 16 November 2019.

Another matter

1. The Tribunal observes that Ms Teague did not lodge her application with the Tribunal for review of its objection decision dated 31 March 2021, being the subject of Review Number 2021/BC021433, until 7 May 2021.  That was also the date upon which she lodged her application for review of the objection decision made on 1 April 2021 which is the subject of Review Number 2021/BC021527. 

2. The Tribunal observes that under section 95N of the Child Support (Registration andCollection) Act1988, the date of effect of any decision it makes varying or substituting a decision of Services Australia is to have effect from the date the application to the Tribunal is made if the application was made more than 28 days after the applicant received notice of Services Australia’s decision.

3. Ms Teague’s evidence to the Tribunal was that she received notification of Services Australia’s objection decision by post. The Tribunal observes that the combined effect of sections 160 and 163 of the Evidence Act 1995, is that Ms Teague is considered to have received the objection decisions on the twelfth day (excluding Saturdays and Sundays and public holidays) after the dates of the letters by which the decisions were sent to her.  In other words, she received the earliest decision on 15 April 2021 and the subsequent decision on 16 April 2021.

4. The Tribunal observes, for the sake of clarity, that subsection 95N(1) of the Child Support (Registration and Collection) Act1988 is accordingly not engaged in the matters under review, given that Ms Teague lodged her applications within 28 days of receiving the objection decisions.

DECISION

In Review Number 2021/BC021433 the Tribunal sets aside the decision under review and, in substitution, decides that the objection Mr Monti lodged on 25 January 2021 to the care percentage decision made on 13 June 2019 is disallowed and the care percentages for [Child 1] remain as 49% for Ms Teague and 51% for Mr Monti from 18 April 2019.

In Review Number 2021/BC021527 the Tribunal sets aside the decision under review and, in substitution, decides that the objection Mr Monti lodged on 25 January 2021 to the care percentage decision made on 16 November 2019 is disallowed and the care percentages for [Child 1] remain as 28% for Ms Teague and 72% for Mr Monti from 7 November 2019.