Warden and Bassett (Child support)

[2018] AATA 949

Warden and Bassett (Child support) [2018] AATA 949 (20 February 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/BC013113

APPLICANT:  Mr Warden

OTHER PARTIES:  Child Support Registrar

Miss Bassett

TRIBUNAL:Member S Letch

DECISION DATE:  20 February 2018

DECISION:

The Tribunal decides to:

(a)vary the care decision under review so that care for [Child 1] is to be recorded as 58% to Miss Bassett and 42% to Mr Warden from 25 December 2016, effective from 30 May 2017;

(b)affirm the decision not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989, resulting in the date of effect of the Tribunal’s decision in (a) being 7 September 2017, the date Miss Bassett objected to the decision of 15 July 2017.

CATCHWORDS

Child Support – Care percentages – Determination of the likely pattern of care – Decision under review varied

Child support - Care percentages - Date of effect of objection decision – Whether special circumstances prevented lodgement of the objection within time – Refusal to make a determination under subsection 87AA(2) – 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

BACKGROUND

1. Miss Bassett and Mr Warden are the parents of [Child 1], born May 2015. Mr Warden has been assessed to pay Miss Bassett child support.

2. This review is about how the care of [Child 1] should be recorded from the reported change of care on 25 December 2016. Prior to 25 December 2016, [Child 1] had been recorded as being in Miss Bassett’s 100% care.  

3. On 30 May 2017, Mr Warden advised the Department of Human Services (the Department) that, from 1 November 2016, there had been a change in [Child 1]’s care. He advised he had care of [Child 1] for four nights per week, and Miss Bassett three nights per week.

4. On 15 July 2017, the Department decided to record [Child 1]’s care as 58% to Mr Warden and 42% to Miss Bassett from 1 November 2016, effective from 30 May 2017.

5. On 7 September 2017, Miss Bassett objected to the decision. On 11 November 2017, an objections officer decided that care for [Child 1] should be recorded as 28% to Mr Warden and 72% to Miss Bassett from 25 December 2016; however, because Miss Bassett had not objected within 28 days of the original decision, the decision could only take effect from 7 September 2017, the date she formally objected.

6. On 14 December 2017, Mr Warden applied to this Tribunal for review of the objections officer decision.

7. The Tribunal conducted a hearing on 16 February 2018. Both parties participated in the hearing by conference telephone, and both gave sworn evidence. The Tribunal accepted into evidence the section 37 of the Administrative Appeals Tribunal Act 1975 Statements and Documents provided by the Department (Exhibit 1), and additional materials submitted by Mr Warden numbering 161 pages (Exhibit 2).

ISSUES

1. The key statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). The Tribunal must determine whether the existing care determination as at 29 May 2017 should be revoked. If so, the Tribunal must make a new care determination.

2. The Tribunal must also consider the effect of Miss Bassett’s (late) application to object to the original decision.

CONSIDERATION

1. The law relevant to this decision is contained in the Act. Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination ought to be revoked. The date of effect is when the previously determined pattern of care ceased: subsection 54G(2).

2. If section 54G does not apply, section 54F provides that if the Department was notified, or otherwise became aware, of the change within 28 days after that day, then revocation takes effect the day before the change of care day (subparagraph 54F(2)(ii)). However, if the Department is notified or becomes aware more than 28 days after the change of care day that the care of the child no longer corresponds with the existing care determination, the revocation takes effect on the day that the Department was so notified.

3. Both parties gave generally consistent evidence that the understood pattern for [Child 1]’s care from late December 2016 was expected to be four nights to Miss Bassett (at her mother’s residence), and three nights to Mr Warden (Thursday, Friday and Saturday nights at a residence Mr Warden shared with his mother). However, Mr Warden said that, on a number of occasions, he would have [Child 1] on the Sunday night; he would drop [Child 1] to Miss Bassett’s mother’s house early Monday morning, and she would sign him in to day care. Mr Warden also indicated there were some “blocks of time” he had [Child 1] out of the usual cycle. In support, Mr Warden submitted dozens of pages including text messages and photographs which he submitted showed he had [Child 1] on some days other than Thursday to Sunday.

4. Miss Bassett did not accept that [Child 1] had been with Mr Warden on Sunday nights, maintaining that [Child 1] had always been delivered to her mother’s house on Sunday, and taken to day care the next day by her mother. Miss Bassett said she had been actively involved in decision-making in respect of [Child 1], and had been providing financial assistance, including shopping for groceries and meeting [Child 1]’s other needs. The Tribunal accepted that [Child 1] was in Miss Bassett’s care during the period [Child 1] resided at her mother’s address, even though Miss Bassett stayed overnight at her mother’s house infrequently.

5. For the purpose of this review, the Tribunal must determine if the pattern of care changed. The Tribunal is to determine the percentage of care by reference to the actual care provided or likely pattern of care (subsections 50(2) and (3) of the Act). In order for the Tribunal to be satisfied that the existing care determination should be revoked, the Tribunal would need to be satisfied that the care of [Child 1] did not correspond with the existing percentage of 100% to Mr Warden.

6. In so doing, the Tribunal must consider the pattern of care as it was likely to have been as of 25 December 2016, the date of the change. Any subsequent changes to the pattern of care are the subject of separate notifications and separate decisions which are not currently before the Tribunal.

7. It was common ground that the likely pattern of care changed when Mr Warden commenced to have regular care from 25 December 2016. The Tribunal considers the best evidence of the likely pattern of care at the relevant time is the consistent evidence of both parties that the general pattern was proposed to be three consecutive nights each week to Mr Warden.

8. The Tribunal accepted Mr Warden’s evidence that there had been instances where the pattern of care was not strictly followed; the Tribunal considers it likely that he had extra nights from time to time.

9. However, the law allows for tolerable deviations. In Re Nowicz and Secretary, DFaCS (2001) 65 ALD 314, the Administrative Appeals Tribunal relevantly observed:

   Once established, it is appropriate that variation [to the percentage of care] only occur where there is to be a significant departure in an established pattern of care. This may occur, for example, when contact weekends are changed from fortnightly to monthly. It would not occur when the odd weekend contact visit was missed, or a child stayed for one particular weekend in addition to the contact weekend in a given fortnight during a particular assessment period.

10. Similarly, in Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159 (24 February 2006), Deputy President Hack observed, at paragraph 26, that:

    In approaching the task of determining the pattern of care I have considered the matter with a broad brush. The Guide, rightly in my view, accepts that no adjustment to FTB is warranted for minor variations in care arrangements.

11. The Tribunal is satisfied that the likely pattern of care was that agreed by the parties at the relevant time (four nights per week in Miss Bassett’s favour), and that the deviations which subsequently occurred were not enough to warrant any adjustment to the likely pattern anticipated by the parties on 25 December 2016.

12. The Tribunal therefore finds that the care for [Child 1] from 25 December 2016 should be recorded as 58% to Miss Bassett, and 42% to Mr Warden.

13. The Tribunal observes that the change in the likely pattern of care was not advised by Mr Warden until 30 May 2017, which is more than 28 days after the change. The decision varying the recorded care cannot take effect from a date prior to that notification. Regardless, for the reasons that follow, the Tribunal observes that the Tribunal’s decision cannot be given effect until 7 September 2017.

14. Again, the Tribunal observes that any subsequent changes in care, such as in around June and later in 2017, are not presently before it. The Tribunal is confined to considering the change in the likely pattern of care in December 2016. The parties may elect to raise with the Department later care changes, and discuss possible review options if they not satisfied with Departmental decision-making.

What is the date of effect of the decision? 

1. Miss Bassett did not object to the original decision of 15 July 2017 until 7 September 2017, more than 28 days after she was notified of the decision.  

2. The significance of Miss Bassett objecting outside the 28 day period would be that any new determination made as a result of the objection process would take effect, under section 87AA of the Child Support (Registration and Collection) Act 1989, from the date of the objection unless special circumstances existed.[1] Further, this Tribunal may exercise only the powers and discretions conferred on the child support registrar on objection (under subsection 43(1) of the Administrative Appeals Tribunal Act1975). In that case the Tribunal’s decision could take effect only from the date of the objection unless special circumstances existed which prevented Miss Bassett from objecting within 28 days.

   [1] A decision of the Registrar to make a determination under subsection 87AA(2) or not to make such a determination is not an objection decision but a primary decision even though it is made by an objections officer. A person affected by it may apply to the Tribunal for AAT first review.

3. Miss Bassett told the Tribunal that she had only recently moved, and her phone was “broken”. She did not have a car at the time. She recalled her mail was still going to her mother’s address. She recalled she was receiving letters online, in addition to the post. Her recollection was vague about when she became aware of the decision; however, she said that nobody at the Department advised her she needed to object within 28 days if she wanted the decision “backdated”.  She submitted she thought she was objecting on 19 August 2017 when she contacted the Department online (the Tribunal observes that a “change of care notification” purportedly from 8 June 2017 was advised to the Department on that date – page 40 of Exhibit 1; a further (what appears to be) online notification was provided 4 September 2017 – page 41).

4. Mr Warden referred to text messages he received from Miss Bassett’s mobile telephone number in August 2017 (for example, at page A83) – he submitted that, contrary to Miss Bassett’s suggestion she had no working telephone, she had the capacity to contact the Department to make her objection.

5. The Tribunal is satisfied that the first occasion Miss Bassett validly objected to the decision of 15 July 2017, which had been electronically notified to her on that date, and issued by post to her last known address, occurred on 7 September 2017.

6. On careful consideration of the evidence, the Tribunal is not satisfied there were special circumstances which prevented a proper objection being made by Miss Bassett within 28 days of 15 July 2017. Rather, it appears she was not aware of the ramifications of making an objection outside the 28 day period, and had not taken reasonable steps to ensure she made a timely objection. She was not “prevented” from objecting in time. The Tribunal finds no proper basis to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989.  The effect of the Tribunal’s decision to vary the recorded care will be 7 September 2017.

7. As the Tribunal has reached a different conclusion to the objections officer, the decision under review will be varied. 

DECISION

The Tribunal decides to:

(a)vary the care decision under review so that care for [Child 1] is to be recorded as 58% to Miss Bassett and 42% to Mr Warden from 25 December 2016, effective from 30 May 2017;

(b)affirm the decision not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989, resulting in the date of effect of the Tribunal’s decision in (a) being 7 September 2017, the date Miss Bassett objected to the decision of 15 July 2017.