Willock and Godin (Child support)

[2020] AATA 4301

Willock and Godin (Child support) [2020] AATA 4301 (6 August 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019386

2020/MC019418

APPLICANT:  Mr Willock

OTHER PARTIES:  Child Support Registrar

Ms Godin

TRIBUNAL:Member J Longo

DECISION DATE:  6 August 2020

DECISION:

The tribunal sets aside the decisions under review and, in substitution, decides as follows:

·     Mr Willock has a percentage of care of 100% for [Child 1] and Ms Godin has a percentage of care of 0% for [Child 1] from 18 September 2019 with effect from 21 January 2020;

· That section 87AA of the Child Support (Registration and Collection) Act 1988 does not apply in the circumstances.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of notification of the care change – existing percentage of care determinations revoked and new determinations made – decision under review set aside and substituted – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances

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.Mr Willock and Ms Godin are the parents of [Child 1]. Mr Willock is the parent liable to pay child support. Prior to 1 September 2019 the Department of Human Services – Child Support (the Department) had determined that Ms Godin had a percentage of care for [Child 1] of 100% and that Mr Willock had a percentage of care of 0% for [Child 1].

2.On 21 January 2020, Mr Willock notified the Department that there had been a change in the care for [Child 1]. Mr Willock stated that he had a percentage of care of 100% for [Child 1] and Ms Godin had a percentage of care of 0% from 18 September 2019. On 13 February 2020 the Department made a new determination of care for [Child 1] that Mr Willock has a percentage of care of 100% for [Child 1] and Ms Godin has a percentage of care of 0% for [Child 1] from 18 September 2019 with effect from 21 January 2020.

3.On 17 April 2020, Ms Godin lodged an objection to the above care decision of the Department, stating that [Child 1] had moved out from 1 April 2019 and was living with her boyfriend. On 24 June 2020, the Department allowed the objection and ended the assessment of child support from 1 April 2019.

4.On 3 July 2020, Mr Willock lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 6 August 2020. Mr Willock spoke to the tribunal via conference telephone and gave sworn evidence. Ms Godin was contacted to participate in the hearing but did not respond. In making its decision the tribunal took into consideration the documents provided by the Department (77 pages), which were also sent to Ms Godin and Mr Willock. The tribunal also considered the information provided by Mr Willock (A1 to A3), which were exchanged with both parties and provided to the Department.

CONSIDERATION

5.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

What is the care of [Child 1]?

6.It is not in dispute that the Department had recorded the care of [Child 1] as Ms Godin having 100% and Mr Willock having 0% prior to 18 September 2019. It is also not in dispute that Mr Willock contacted the Department on 21 January 2020 to advise that the care of [Child 1] had changed. The tribunal finds accordingly.

7.Mr Willock stated that [Child 1] was kicked out by Ms Godin on 11 March 2019 and moved in with a friend. During that time, she reached out to him and they re-established a relationship, as it had been a long time since they had had any contact. After the reconnection, [Child 1] decided to move back in to stay with him and his wife. He found her a job [doing specified tasks] as a [Occupation 1] but the job stopped in March 2020. [Child 1] then decided to go back to school, at [School 1], and so she moved to her friend’s home to be closer to school. Mr Willock stated that she moved on 24 April 2020.

8.Mr Willock submitted some evidence to Tribunal, in the form of two statements. One statement, unsigned and undated, was from the wellbeing coordinator and Chaplin at [School 1], [Ms A]. This statement confirms the oral evidence provided by Mr Willock. The second statement, also unsigned and undated, from [Ms B], a child and family practitioner, also confirms that [Child 1] was residing with her father for the period from 18 September 2019 until 25 April 2020.

9.The tribunal notes that the Department’s discussion regarding the care with Ms Godin confirms that [Child 1] left her care on 11 March 2019 but that she was living with a boyfriend. The Department also stated that they made enquiries from the Family Assistance Office which shows a decision was made on 15 October 2019 which deemed that [Child 1] was a member of a couple living away from home from 3 July 2019.

10.Section 50 of the Act requires a new determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. Mr Willock’s submissions are that the percentages of care for [Child 1] changed from 18 September 2019.

Should the existing care determinations in relation to [Child 1] be revoked?

11.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children. Mr Willock notified the Department on 21 January 2020 that the care taking place changed from 18 September 2019.

12.In this case, the tribunal has determined that a care determination was made under section 50 of the Act and that Ms Godin had a percentage of care for [Child 1] of 100% and that Mr Willock had a percentage of care of 0% for [Child 1]. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [Child 1], the tribunal must determine the percentage of care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

13.The tribunal is required to consider what the actual care of [Child 1] was or is likely to be during the care period. The care period is such a period as the Child Support Registrar considers appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal. The tribunal considers that, in the circumstances of this case, an appropriate care period is the period from 18 September 2019, being the date from which the change to care arrangements occurred and that the care period should be a 12-month period. The tribunal notes that the pattern of care throughout the period remains the same from the parenting plan. The tribunal has determined that it is the pattern of care that Mr Willock and Ms Godin will have and this pattern of care is not in dispute: Mr Willock’s pattern was to have [Child 1] in his care 100% of the time.

14.The tribunal has determined that the care should be changed from 18 September 2019 to reflect that [Child 1] was in Mr Willock’s care for 100% of the time and that [Child 1] was no longer in Ms Godin’s care. The Tribunal accepts that [Child 1] came into Mr Willock’s care on 18 September 2019 and that she left his care on 24 April 2020 to complete her secondary studies. Accordingly, the previous determination of care is revoked from 17 September 2019 and a new determination made from 18 September 2019.

15.As the objections officer allowed Ms Godin’ objection, but the Tribunal has set aside this decision, the date of effect consideration is no longer relevant. Subsection 87AA(1) of the Registration Act provides that if a person objects to a care percentage decision more than 28 days after the person was served with a notice of the decision, the decision has effect from the date the person lodged the objection unless there were special circumstances which prevented them from applying earlier. However, Mr Willock did not lodge the objection, but rather the original decision. As the objection decision has been set aside and a new decision made in substitution, section 87AA of the Registration Act does not apply in the circumstances.

16.Therefore, the appropriate date of effect of the tribunal’s decision is 21 January 2020, which is the date Mr Willock notified of the care change which occurred on 18 September 2019.

DECISION

The tribunal sets aside the decisions under review and, in substitution, decides as follows:

·     Mr Willock has a percentage of care of 100% for [Child 1] and Ms Godin has a percentage of care of 0% for [Child 1] from 18 September 2019 with effect from 21 January 2020;

· That section 87AA of the Child Support (Registration and Collection) Act 1988 does not apply in the circumstances.