Wilhoit and Mangrum (Child support)

[2020] AATA 2139

Wilhoit and Mangrum (Child support) [2020] AATA 2139 (7 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC017944; 2019/PC017946

APPLICANT:  Mr Wilhoit

OTHER PARTIES:  Child Support Registrar

Ms Mangrum

TRIBUNAL:Member S Letch

DECISION DATE:  7 April 2020

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – shared care appropriate determined - decision under review affirmed

CHILD SUPPORT – date of effect of objection decision – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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. Mr Wilhoit and Ms Mangrum are the parents of [Child 1]. Ms Mangrum applied for a child support assessment with the Child Support Agency (CSA) on 3 September 2018.

2. In an original decision 20 September 2018, the CSA decided to record care for [Child 1] as 86% to Ms Mangrum and 14% to Mr Wilhoit, with effect from 5 June 2018 (a date pre-dating the application for the child support case).

3. Mr Wilhoit objected to the decision on 22 July 2019 – notably, more than 28 days after he was notified of the original decision.

4. In an objection decision dated 19 November 2019, it was decided care for [Child 1] should be recoded as 50% to each parent from 1 September 2018. As explained to Mr Wilhoit during the hearing, the Tribunal considers the original task for the CSA was to determine the pattern, or likely pattern, of care for [Child 1] as of 3 September 2018 (the date of the application for the child support case), and not an earlier date.

5. There are two decisions under review. The first is how care should be recorded for [Child 1]; the second is whether the care decision can take effect from an earlier date than 22 July 2019, the date of Mr Wilhoit’s (late) objection.

6. Ms Mangrum did not apply to the Tribunal to be a party to the care determination; however, she is automatically a party to the decision about the date of effect.[1] She did not answer the Tribunal’s telephone calls at, and around, the time of the hearing, which proceeded in her absence.

The care decision

[1] A decision of the Registrar to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1989 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. 

1. Mr Wilhoit does not quarrel with the 50% care being recorded from September 2018; he maintains that was the care arrangement from earlier separation in the middle of 2018.

2. Whilst the Tribunal is of the view that the CSA “exceeded its brief” by considering care prior to 3 September 2018, the effect of the decision is that equal care is recorded from 3 September 2018 for the purposes of the child support assessment.

3. Accordingly, the Tribunal will affirm the CSA decision concerning recorded care of [Child 1].

The date of effect issue

1. Mr Wilhoit did not object to the original decision until 22 July 2019, well after the 28-day period expired. The significance of Mr Wilhoit 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 (the Act), from the date of the objection unless special circumstances existed. 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 Act 1975). In that case, the Tribunal’s decision could take effect only from the date of the objection unless special circumstances existed which prevented Mr Wilhoit from objecting within 28 days.

2. The sorts of factors contemplated by this provision are matters involving ill health, or other factors beyond a person’s control, which prevented an objection being made.

3. Mr Wilhoit initially told the Tribunal that he had mental health issues. He said he “wasn’t aware of the system”. He said he felt “isolated” being evicted from the former matrimonial home in June 2018. He said his “whole world fell apart”. He said he “feels like he is being taken advantage of”. He spoke to his GP who did not want to put him on medication; he wanted to see if Mr Wilhoit could “get through” without medication. Mr Wilhoit said he did have some [counselling]. He also pointed to a reference by the objection officer to other children he does not have; he does not have confidence the CSA has not confused his case with somebody else’s.

4. Mr Wilhoit, later in the hearing, indicated that he did not appreciate the difference that the recorded care would make to the assessment; when asked why he objected in July 2019 and what may have changed, he said he had “started to understand the gravity of the situation”. He said there was a “private arrangement” and Ms Mangrum was not working following separation and she needed to claim Centrelink payments “as much as she could” – he said he was “trying to do the right thing” and at that stage thought there was a chance the relationship might be able to repaired. He said he now feels “manipulated”. He said after Ms Mangrum started working again, he asked her if she had “readjusted the child support” to reflect “50/50” care – she said she had done so. He later discovered she had not, and said he now regrets putting his trust in Ms Mangrum.

5. The Tribunal understood Mr Wilhoit’s case and understood he had not appreciated the consequences of initially permitting care to be recorded in accordance with Ms Mangrum’s wishes, and then placing trust that the she had informed the CSA of the equal care arrangements.

6. However, ultimately, Mr Wilhoit is responsible for his own affairs. He was obliged to contact the CSA in the event he disagreed with [Child 1]’s recorded care. The Tribunal did not consider his circumstances gave rise to the kinds of circumstances contemplated by section 87AA of the Act which prevented a timely objection.    

7. Accordingly, like the objections officer, the Tribunal finds no proper basis for a favourable exercise of section 87AA.

8. As the Tribunal has reached the same conclusions as the objections officer, the decisions under review will be affirmed.

DECISION

The decisions under review are affirmed.