Wellington and Child Support Registrar (Child support)

[2018] AATA 3206

Wellington and Child Support Registrar (Child support) [2018] AATA 3206 (23 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC014115

APPLICANT:  Mr Wellington

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  23 July 2018

DECISION:

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Wellington had 100 per cent care of [Child 1] and [Child 3] and [Ms A] 0 per cent care from 28 July 2017; and

(b) The Tribunal declines to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 18 May 2018.

CATCHWORDS
Child support - Percentage of care - Change to the likely pattern of care - Existing care percentage determinations revoked - New percentages of care determined - Decision under review set aside and substituted – Late application for review – Date of effect of Tribunal’s decision – No special circumstances – Refusal to make determination

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. This review is about a change to the percentage of care determination for Mr Wellington in respect of the children [Child 1] and [Child 3].

2. Mr Wellington and [Ms A] are the parents of [Child 1] (born December 2001), [Child 2] (born May 2006) and [Child 3] (born October 2007).  From 1 July 2015 the child support assessment reflected Mr Wellington and [Ms A] as each having 50 per cent care of the children.

3. On 28 July 2017 Mr Wellington notified the Department of Human Services, Child Support (the Child Support Agency) of a change in the care arrangements with Mr Wellington having 100 cent care of [Child 1] and [Child 3].  Care of [Child 2] was to remain unchanged.

4. On 14 September 2017 the Child Support Agency made the decision to reject the change of care as advised by Mr Wellington (the original decision).

5. On 27 September 2017 Mr Wellington objected to this decision and on 18 December 2017 the Child Support Agency disallowed the objection (the objection decision).

6. On 18 May 2018 Mr Wellington applied for a review of the objection decision by the Administrative Appeals Tribunal (the Tribunal).

7. The Tribunal conducted a hearing into the application on 19 July 2018.  Mr Wellington gave evidence on affirmation by conference telephone.  The Tribunal wrote to [Ms A] inviting her to be added as a party to the application for review, however, she did not respond to the invitation and so did not provide evidence.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (236 pages).

8. At hearing the Tribunal agreed to allow Mr Wellington to provide further evidence in relation to any special circumstances which may have prevented him from applying for a review of the objection decision within the relevant 28 day period.  Mr Wellington’s evidence was received by the Tribunal on 23 July 2018 (A1-A2).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] and [Child 3] which requires existing percentages of care to be revoked and new care determinations to be made; and

   ·     if so, from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Wellington told the Tribunal he had full-time care of [Child 1] and [Child 3] by May 2017 because the previous week about arrangement with [Ms A] had stopped.  He said the pattern of care had changed from around April when [Ms A] began missing her weeks of care.  He said initially [Ms A] would miss picking up the children by a few days and gradually over time this became a few weeks.  He said [Ms A] became more and more unreliable and care of the children was “all over the shop.”

2. Mr Wellington said the turning point was when he moved back into the family home in April 2017 which [Ms A] had left in a very bad state of repair some months previously.  He said it was around then [Ms A] began seeing less and less of the children.  Mr Wellington said when he finally realised care of [Child 1] and [Child 3] was not going to return to the previous 50-50 arrangement he advised the Child Support Agency.  This was on 28 July 2017.

3. Mr Wellington said the Child Support Agency had not accepted the change of care because he had failed to provide sufficient evidence.  He said he had not kept a care diary as there had been no need while care was always week about.  In addition, during the second half of 2017 and early 2018, he had experienced significant personal issues which had impacted on his mental health and made it difficult for him to provide the evidence required.  He said [Ms A] had become increasingly difficult and following an incident between [Ms A] and [Child 3] the police had become involved.  He was working full-time and trying to look after the boys as well.  Mr Wellington said he was simply not in the right frame of mind to deal with the Child Support Agency at that time.

4. Mr Wellington told the Tribunal that in September 2017 [Ms A] had applied to the Child Support Agency for agency collection as well as child support arrears of more than $4,000.  He said he felt this was unfair as [Ms A] had not been caring for the children for some time and he had then provided evidence to the Child Support Agency proving he had 100 per cent care of the children.  The Tribunal notes the Child Support Agency made a decision to change the level of care for all three children to 100 per cent care to Mr Wellington from 4 September 2017 but with effect from 12 January 2018.

5. Mr Wellington said this evidence also proved he had 100 per cent care of [Child 1] and [Child 3] from at least May 2017.

6. The Tribunal notes in evidence provided by the Child Support Agency two statements of support from third parties Mr Wellington believes confirm he had 100 per cent care of [Child 1] and [Child 3] from at least May 2017.  The first is a signed statement from [Ms B] dated 12 January 2018 and the second is an unsigned statement from [Mr Wellington’s parents] dated 15 January 2018.

7. In her statement, [Ms B] says she has been in a relationship with Mr Wellington since 7 April 2016 and has played “an active part of his three son’s lives.”  [Ms B] says Mr Wellington “Returned to his marital property [in] approximately April 2017, where his three sons have remained in his care to the date of this letter.”

8. In their statement, [Mr Wellington’s parents] state they have been “very active grandparents” in the lives of [Child 1], [Child 2] and [Child 3].  They also state Mr Wellington returned to the family home in approximately April 2017, “where ALL three children have their own rooms and are with Mr Wellington in their own home, more than 90% of the time.”

9. Mr Wellington has also provided evidence to the Child Support Agency in the form of a summary of grocery costs for the period from August to November 2017 stating, “I averaged nearly $200.00 per week on groceries” during this period.  These grocery costs are corroborated by bank statements Mr Wellington has also provided.  The Tribunal notes, however, there are no grocery costs for the period from April to August 2017.

10. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determination must be revoked and replaced by a new percentage of care determination.

11. Having carefully considered the evidence available, on balance, the Tribunal is satisfied that a new pattern of care has been established and Mr Wellington had above primary care of [Child 1] and [Child 3] from 28 July 2017 (the date he advised the Child Support Agency).

12. As section 54F of the Act is met, the Tribunal finds the previous determination must be revoked and replaced with the pattern of care that took place.

New care percentage decision

1. Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Mr Wellington and [Ms A].

2. For the reasons outlined above the Tribunal finds that Mr Wellington provides 100 per cent care and [Ms A] provides 0 per cent care of [Child 1] and [Child 3] from 28 July 2017.

Date of effect of the Tribunal decision

1. Section 95N of the Child Support (Registration and Collection) Act 1988 determines the date of effect of a decision to set aside a care percentage decision.  Mr Wellington applied to the Tribunal on 18 May 2018 for a review of the objection decision on 18 December 2017.  As Mr Wellington’s application to the Tribunal was not within 28 days of being served with notice of the objection decision, the date of effect of any new decision by the Tribunal is the date on which he applied for review.

2. The Tribunal may extend the 28 days if there are special circumstances that prevented Mr Wellington from applying for review within the relevant period.  While the Child Support (Registration and Collection) Act 1988 does not define “special circumstances”, the Child Support Guide at 4.1.8 provides some guidance and states the circumstances must be “sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date.”  Examples of special circumstances include the parent being seriously ill, the parent suffering a personal trauma such as a death in the family, a natural disaster causing damage to the parent’s property or communication difficulties including isolation or illiteracy.

3. In determining an application for review, in the interests of consistency in decision making, the Tribunal would ordinarily apply such policy if it is not inconsistent with the Act.

4. Mr Wellington told the Tribunal at hearing that at the time he received the objection decision he was struggling with mental health issues.  He said as a result of having to care for three children on his own, [Ms A] causing additional strains and trying to deal with the Child Support Agency over the arrears, his work had suffered and he had been stood down in September 2017 for five weeks.  He said he nearly lost his job.  Then he was dealing with the court case relating to [Child 3] while still trying to compile evidence for the Child Support Agency in relation to the arrears.  Mr Wellington said he had been undergoing counselling as a result.

5. Following the hearing Mr Wellington provided two certificates from [Employee] Assistance.  The first states Mr Wellington attended a fitness for work psychological assessment on 13 October 2017.  The second states Mr Wellington attended psychological counselling on 28 May 2018, 25 June 2018 and 20 July 2018.

6. Mr Wellington applied to the Tribunal on 18 May 2018 for a review of the objection decision made on 18 December 2017.  The Tribunal does not doubt the personal events described by Mr Wellington impacted on his health and wellbeing, however, he was not undergoing counselling between the date of the objection decision and the date he made his application to the Tribunal.  It is difficult, therefore, to draw the conclusion that his personal circumstances would have prevented him from applying to the Tribunal within the required time frame.

7. The Tribunal is also mindful that Mr Wellington was able to compile evidence in relation to the arrears matter he was dealing with and provide this evidence to the Child Support Agency on 22 January 2018.  While acknowledging that also making an application for review to the Tribunal in relation to the care matter may have created an additional burden for Mr Wellington, the Tribunal does not consider this additional burden would have prevented him from doing so.

8. The Tribunal finds there were no special circumstances preventing Mr Wellington from applying for review within the time frame prescribed.  Accordingly the Tribunal will not extend the 28 day period and its decision is effective from the date of Mr Wellington’s application, being 18 May 2018.

DECISION

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Wellington had 100 per cent care of [Child 1] and [Child 3] and [Ms A] 0 per cent care from 28 July 2017; and

(b) The Tribunal declines to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 18 May 2018.