Vanwell and Heatley (Child support)

[2018] AATA 535

Vanwell and Heatley (Child support) [2018] AATA 535 (19 January 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/MC012350

APPLICANT:  Ms Vanwell

OTHER PARTIES:  Child Support Registrar

Mr Heatley

TRIBUNAL:Member P Glass

DECISION DATE:  19 January 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides:

a)    that from 30 January 2017, Ms Vanwell percentage of care for the child is 73% and Mr Heatley’s is 27%; and

b) not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the Tribunal’s decision in (a) is 18 August 2017.

CATCHWORDS
Child Support – Percentage of care – Determination of the likely pattern of care – Decision under review set aside and substituted - Date of effect of the Tribunal’s decision - Whether special circumstances prevented the application being lodged on time - Refusal to make a determination under subsection 95N(2)

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 Vanwell and Mr Heatley are the parents of a child. Mr Heatley is the parent liable to pay child support.

2. On 3 January 2017, Ms Vanwell advised the Department of Human Services – Child Support (the Department) of a change in the child’s care, claiming that she was spending 287 nights per year in her care from 14 November 2016. On 15 February 2017, the Department rejected Ms Vanwell’s request for a new care percentage determination.

3. On 4 May 2017, Ms Vanwell objected to the Department’s decision. On 22 June 2017, an objections officer at the Department disallowed Ms Vanwell’s objection and refused to change the care percentages for the child.

4. On 18 August 2017, Ms Vanwell applied to the Administrative Appeals Tribunal for an independent review of the objections officer’s decision. That application was heard on 19 January 2018. Ms Vanwell and Mr Heatley appeared before the Tribunal and gave evidence on affirmation. The Department did not participate in the hearing.

5. The Tribunal received into evidence:

   · documents marked 1 to 115 produced by the Department pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (Exhibit 1);

   ·     documents provided by Mr Heatley and subsequently marked B1 to B8 (Exhibit 2); and

   ·     a Statutory Declaration made by Ms Aon 19 January 2018 (Exhibit 3).

6. The issues arising for determination are:

   ·     the percentages of care for the child; and

   ·     when any change to the parents’ care percentages should take effect.

CONSIDERATION

The parents’ care percentages

1. At the time of Ms Vanwell’s notification to the Department on 3 January 2017, the parents’ care percentages for the child were assessed to be 50% each.

2. Pursuant to section 50 of the Child Support (Assessment) Act 1989 (the Act), percentages of care are to correspond with the actual care of the child each parent has had, or is likely to have, during a care period. Paragraph 50(1)(b) of the Act requires two things before a new care determination can be made:

   ·     the revocation of an existing care determination under Subdivision C of Division 4 of Part 5 of the Act; and

   ·     satisfaction of an actual or likely pattern of care during such care period as is determined to be appropriate in all the circumstances.

3. Pursuant to section 54F of the Act, an existing percentage of care must be revoked if it does not correspond with the actual care taking place and the parties’ cost percentages would change if they reflect the current care percentage. Alternatively, pursuant to section 54H of the Act, an existing percentage of care may be revoked if it does not correspond with the actual care taking place.

4. Both parents agree that the child’s care arrangements have changed twice over the last 18 months. In the first instance, the child commenced living more with Ms Vanwell and spending three nights of each alternate weekend with Mr Heatley as well as half of the school holiday periods. In the second instance, the child’s alternate weekend time was reduced to two nights while holidays continued to be shared.

5. The parents disagree as to when the first change in care occurred. Ms Vanwell gave evidence that it occurred in the middle of October 2016. Her evidence is inconsistent with the Department’s file note of 3 January 2017 which records her saying that the change took place on 14 November 2016.[1] When asked about the inconsistency by the Tribunal, she gave evidence that she didn’t know why she had previously said the change took place on 14 November 2016.

   [1] Exhibit 1, page 8.

6. Ms Vanwell relied on a Statutory Declaration by Ms Awho says she is aware that access arrangements changed in mid-October 2016. She declares that upon visiting Mr Vanwell’s house most weekends and some weeknights, she often found the child present.[2] Ms Adeclares that from October 2016, the child spent time with her father only every second weekend. That is inconsistent with Ms Vanwell’s evidence that the child spent half the school holidays with her father.

   [2] Exhibit 3.

7. Mr Heatley gave evidence that the child commenced spending three nights per fortnight and half of the school holidays with him on 30 January 2017. His evidence is corroborated by a statement by his partner dated 21 May 2017.[3] Having observed both parties give their evidence, I prefer the evidence of Mr Heatley and find that arrangements for the child’s care changed to three nights per fortnight each alternate weekend and half of the school holidays on 30 January 2017. Those arrangements equate to Mr Heatley providing approximately 102 nights per annum, or 27% care.[4]

   [3] Exhibit 1, page 41.

   [4] Rounded in accordance with section 54D of the Act.

8. A change from 50% care to 27% care for Mr Heatley changes his cost percentage.[5] Pursuant to section 54F of the Act, the existing percentage of care determination must be revoked. Pursuant to subsection 54F(2) of the Act, the revocation is to take effect on the day prior to the change if the Department becomes aware of the change within 28 days of the change. Mr Heatley advised the Department on 16 January 2017 that the change would take effect on 30 January 2017,[6] and spoke to the Department on both 31 January 2017[7] and 21 February 2017.[8] In the absence of Mr Heatley providing any further advice to the Department of any change to the expected care in February 2017, I find that the Department became aware of the change in care within 28 days of 30 January 2017.

   [5] Child Support (Assessment) Act 1989 section 55C.

   [6] Exhibit 1, page 13.

   [7] Exhibit 1, pages 20 and 21.

   [8] Exhibit 1, page 32.

9. I accordingly revoke the existing percentage of care determination on 29 January 2017 and find that thereafter Mr Heatley’s percentage of care is 27% and Ms Vanwell’s is 73%. Although this does not reflect the current arrangements which are agreed to be 21% to Mr Heatley and 79% to Ms Vanwell, I am unable to consider changes in care subsequent to the Department’s decision of 15 February 2017.

When should the change in care percentages take effect?

1. Section 95N of the Child Support (Registration and Collection) Act 1988 provides that where the Tribunal substitutes a care percentage decision and the application to the Tribunal was made more than 28 days after notice of the Department’s decision is given, the Tribunal’s decision is taken to have effect on and from the day the application is made unless special circumstances prevented the application being made within 28 days.

2. The Department sent the objections officer’s decision of 22 June 2017 to Ms Vanwell that day.[9] Ms Vanwell was unable to recall when she received the decision. Pursuant to sections 160 and 163 of the Evidence Act 1995, it is presumed that Ms Vanwell received the Department’s decision nine working days after the date on which the decision was prepared, being 5 July 2017. Her application to the Tribunal on 18 August 2017 was more than 28 days later.

   [9] Exhibit 1, page 89.

3. Ms Vanwell’s evidence as to why she did not lodge her application to the Tribunal within time was that she was sitting in disbelief at having to go through a process to formalise care for her daughter and having to fight to keep her own wages. She gave evidence of having a stressful life and a stressful job. Although she is employed on a casual basis, she effectively works full-time hours. She gave evidence of not having the time to access the Department by telephone.

4. I do not accept that special circumstances prevented Ms Vanwell lodging her application to this Tribunal within 28 days. Accordingly, the Tribunal’s decision will take effect on and from the date of her application, namely 18 August 2017.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides:

a)    that from 30 January 2017, Ms Vanwell’s percentage of care for the child is 73% and Mr Heatley’s is 27%; and

b) not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the Tribunal’s decision in (a) is 18 August 2017.