Faraldo and Weiner (Child support) [2019] AATA 4355 (31 July 2019)

Last Updated: 25 October 2019

Faraldo and Weiner (Child support) [2019] AATA 4355 (31 July 2019)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2019/BC016271

APPLICANT: Mr Faraldo

OTHER PARTIES: Child Support Registrar

Ms Weiner

TRIBUNAL: Member K Buxton

DECISION DATE: 31 July 2019

DECISION:

The tribunal varies the decision under review so that [Child 1] is in the 89% care of Ms Weiner and the 11% care of Mr Faraldo from 4 April 2018 with the tribunal’s decision to take effect from 7 November 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – likely pattern of care – existing percentage of care determinations revoked and new determinations made – date of effect of Tribunal’s decision – decision under review varied

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 Weiner and Mr Faraldo are the parents of [Child 1], and a child support case is registered with the Child Support Agency (CSA) in respect of [Child 1] and their other children. This review application concerns a decision of the CSA about the recorded care for only [Child 1].
2. [Child 1] had been recorded by the CSA as in the 100% care of Mr Faraldo and the 0% care of Ms Weiner when, on 18 June 2018, the CSA received information from the family assistance office that [Child 1] had been in the 100% care of Ms Weiner from 4 April 2018. On 16 July 2018 the CSA decided to record [Child 1] as in the 100% care of Ms Weiner from 9 July 2018 and notified the parents by letter of the decision. The CSA recorded Mr Faraldo as having objected to that decision on 17 January 2019 and on 25 March 2019 the objections officer decided to allow the objection in part, deciding that care for the children would be recorded as 89% with Ms Weiner and 11% with Mr Faraldo from 4 April 2018 with effect in the child support case from 17 January 2019.
3. Mr Faraldo applied to the tribunal for review of that objection decision. At the hearing on 31 July 2019 the tribunal heard sworn evidence from Mr Faraldo and Ms Weiner, who appeared by conference telephone call, and accepted into evidence the subsection 37(1) Statement and Documents provided by the CSA (Exhibit 1).

CONSIDERATION

4. The tribunal is to determine whether there has been a care change for the children. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (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 should be revoked. Subsection 54F(1) provides that the determination must be revoked in circumstances where a different cost percentage would apply if the care percentage determination was changed.
5. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the child. In doing so, the tribunal will look to the overnight care which each parent has for the children.
6. Ms Weiner had informed the Family Assistance Office that she was to have increased care of [Child 1] from 4 April 2018. She stated that the FAO chose to record care for [Child 1] at 100% to her. However, Ms Weiner accepted, both in her communications with the CSA and during the hearing, that Mr Faraldo was to have some school holiday care of [Child 1]. Ms Weiner stated that no arrangements were in place for which holiday weeks [Child 1] would go to Mr Faraldo but that it was to be about half of the school holidays. Ms Weiner confirmed during the hearing that she agreed with the objection decision with respect to the pattern of care for [Child 1].
7. Mr Faraldo is recorded as informing the CSA in November 2018 that he would have care of [Child 1] for half of the school holidays. Mr Faraldo stated in his objection, and the review application, that he would have 11 of the 12 weeks of school holiday care. Since care changed in April 2018 Mr Faraldo stated that he had about four nights holiday care of [Child 1] in July, had a week care in September, and about seven weeks over Christmas. The evidence demonstrates that the most likely pattern of care from April 2018 was that Mr Faraldo would have [Child 1] in his care for about half of the school holidays, although in the event Mr Faraldo had care of [Child 1] for almost all of the 2018/19 Christmas holidays. There is no evidence that this higher level of care was part of the expected pattern in April 2018. Both parents have submitted at various stages that the parents expected that Mr Faraldo would have care of [Child 1] for half of the school holidays.
8. The evidence of the parents during the hearing is consistent with a likely pattern of actual care of for [Child 1] of about half the school holidays since 4 April 2018 (42 nights annually), leading to 11% care for [Child 1] by Mr Faraldo from that date. The tribunal therefore finds that the pattern of care for the children from 4 April 2018 was that Mr Faraldo was having 11% care of the children and Ms Weiner was having 89% care of the children. If Mr Faraldo’s care has increased since this care change this can be dealt with by notification by the parents to the CSA.
9. The tribunal notes that the CSA’s records show that an objection was lodged by Mr Faraldo on 17 January 2019, which was more than 28 days after the notification by post on 16 July 2018 of the decision made on that date. The significance of Mr Faraldo 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 that the objection was lodged 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 Faraldo from objecting within 28 days.
10. The CSA records show that the letter notifying of the change in care decision was sent on 16 July 2018 to his last notified postal address. Mr Faraldo stated that he did not receive the letter until he lodged his objection in January of 2019. However, the CSA papers show that Mr Faraldo was aware of the decision on 7 November 2018 and stated his objection to the recorded care percentages on that date. The Registrar did not treat Mr Faraldo as having objected until January 2019 but, through lodgement of the 7 November 2018 document Mr Faraldo can be regarded as having informed the Registrar that he disagreed with the care determination of 100% to Ms Weiner and that he was having [Child 1] for half the school holidays. It appears that this objection was overlooked and was not dealt with until Mr Faraldo again contacted the CSA on 17 January 2019. However, an objection to a care decision need not take any particular form and the registrar was on notice from 7 November 2018 that Mr Faraldo wished to object. Mr Faraldo therefore objected outside the 28 day time frame, but earlier than determined in the decision under review. Any change to the care determination can therefore take effect in the child support case from 7 November 2018, but not earlier.
11. The tribunal finds that the pattern of care for [Child 1] has changed so that, from 4 April 2018, [Child 1] was in the 89% care of Ms Weiner and the 11% care of Mr Faraldo. As the cost percentages for the parents would differ from those arising from the previously recorded care for [Child 1], it is correct to revoke the previously existing care determination and make a new determination that gives effect to these findings. As the tribunal has reached a different decision to that under review, that decision is varied to reflect the findings of the tribunal that [Child 1] was in the 89% care of Ms Weiner and the 11% care of Mr Faraldo from 4 April 2018 but, because no special circumstances existed for Mr Faraldo, the date of effect of the tribunal’s decision will be 7 November 2018.
12. The tribunal notes that Mr Faraldo expressed dissatisfaction with decisions made by the CSA in respect of the income used for him in the child support assessment. Those decisions are not reviewable by the tribunal in this application, and Mr Faraldo indicated during the hearing the he would contact the CSA to exercise his review rights separately in relation to those decisions.

DECISION

The tribunal varies the decision under review so that [Child 1] is in the 89% care of Ms Weiner and the 11% care of Mr Faraldo from 4 April 2018 with the tribunal’s decision to take effect from 7 November 2018.