Aiello and Child Support Registrar (Child support)

Aiello and Child Support Registrar (Child support) [2020] AATA 4399 (30 July 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/PC019138
APPLICANT:  Ms Aiello
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Senior Member R Ellis
DECISION DATE:  30 July 2020
DECISION:

(a) The Tribunal sets aside the decision under review and, in substitution, decides that Ms Aiello provides 69 per cent care and [Mr A] provides 31 per cent care of [the child] from 19 June 2019.

(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 28 May 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decision – late application for review – whether there were special circumstances that prevented the application for review being lodged in time – special circumstances do not exist – tribunal declines to make a determination under subsection 95N(2)

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

BACKGROUND

This review is about a change to the percentage of care determinations for Ms Aiello and [Mr A] in respect of their child [the child] (born May 2016). There has been a child support assessment in place since 15 August 2017 and [Mr A] is the parent liable to pay child support.
From 21 May 2019 the child support assessment reflected Ms Aiello as having 59 per cent care and [Mr A] as having 41 per cent care of [the child].
On 12 July 2019 Ms Aiello notified the Child Support Agency there had been a change of care stating that she had 100 per cent care of [the child] from 19 June 2019.
On 26 November 2019 the Child Support Agency made the decision to refuse the change of care as notified by Ms Aiello.
On 6 December 2019 Ms Aiello objected to this decision and on 24 March 2020 the Child Support Agency disallowed the objection (the objection decision).
On 28 May 2020 Ms Aiello applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection decision. The application was made outside the 28-day timeframe.
The Tribunal conducted a hearing into the application on 30 July 2020. Ms Aiello gave evidence on affirmation by conference telephone. The Tribunal wrote to [Mr A] on 9 June 2020 inviting him to be added as a party to the application but he did not respond. [Mr A] did not participate in the hearing. The Child Support Agency provided the Tribunal and Ms Aiello with papers relevant to the matter (194 pages).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
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.
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 the likely care is thereafter. The task of the Tribunal on review is the same.
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.
The issues which arise in this case are:
· has there been a change in the pattern of care for [the child] 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

Ms Aiello told the Tribunal that care of [the child] was in accordance with court orders dated 6 May 2019. She said further orders were handed down on 30 October 2019, however, these related primarily to clarification of holiday care and did not replace the existing orders.
Ms Aiello explained the court orders dated 6 May 2019 provided for rotating care on a two-week cycle dependent upon [Mr A]’s work roster. She said these court orders also allowed her to have additional care in the event [Mr A] was working away or unable to care for [the child].
Ms Aiello said the court orders were being followed by the parents but difficulties arose primarily because [Mr A] worked away on a regular basis. She said as a result there had been previous changes to the pattern of care and the changes had been occurring with increasing frequency. Ms Aiello said when she eventually notified the Child Support Agency on 12 July 2019 of the change she was advised it would be better to claim she had 100 per cent care until [Mr A] returned and resumed his care of [the child]. She added that while her care of [the child] was not 100 per cent care it was certainly more than 59 per cent.
The Tribunal notes in evidence from the Child Support Agency a copy of court orders dated 6 May 2019. In relation to living arrangements the court orders stipulate that [the child] shall be with the father during week one from Tuesday to the following Monday and with the mother during week two from Monday to the following Tuesday. This arrangement is suspended during Christmas and Easter and there are also specific arrangements in place for special occasions such as Mother’s Day, Father’s Day and birthdays. The court orders also state:
In the event that Father has work arrangements or is unable to care for the child during his proposed time with the child, the child shall remain with the Mother or if with the father be returned to the Mother’s care.
The Tribunal also notes in evidence from the Child Support Agency a copy of court orders dated 30 October 2019. In relation to care these orders are more specific about the time each parent will spend with [the child] during the Christmas period. The orders define week one of the father’s time with [the child], as set out in the orders of 6 May 2019, as the week he returns from working away (but only up until 3 February 2020). The court orders also state:
Subject to these orders, the Respondent can elect to take, on two months’ notice to the Applicant, holiday time with the child any time until the end of March 2020, on the basis that the other holiday time he is to have with the child during 2020 not be taken before 1 December and that 4 months’ notice is provided to the Applicant.
Ms Aiello told the Tribunal this extra care for [Mr A] was to make up for care he had previously missed. It was not made clear to the Tribunal when [Mr A] may have taken this extra care.
Ms Aiello said she was having additional care of [the child] during times [Mr A] was supposed to have care and had provided a care calendar to the Child Support Agency which set out this additional care.
The Tribunal notes in evidence a care calendar supplied by Ms Aiello to the Child Support Agency on 16 January 2020. The care calendar is for the period from 1 May 2019 to 16 January 2020. As Ms Aiello advised the Child Support Agency that care changed from 19 June 2019, the Tribunal reviewed her care calendar from this date. It shows Ms Aiello had care of [the child] as follows:
·     June – 19 to 30 (12 nights)
·     July – 1 to 7, 10 to 12, 22 to 29 (18 nights)
·     August – 4 to 9, 12 to 30 (25 nights)
·     September – 2, 9 to 13, 16, 23 to 27, 30 (13 nights)
·     October – 1 to 7, 14 to 31 (25 nights)
·     November – 1, 9 to 25 (18 nights)
It is the role of the Tribunal, standing in the shoes of the original decision maker, to determine whether or not a new percentage of care determination should be made. In doing so it is generally accepted the Tribunal should take into account evidence up until the time of the original determination made by the Child Support Agency. In this case the Tribunal has considered the care provided by Ms Aiello up until 26 November 2019.
Although [Mr A] did not participate in the hearing the Tribunal notes in evidence that during a conversation with a child support officer on 18 February 2020 he indicated the dates provided by Ms Aiello looked to be accurate although he disagreed with some.
On balance, based on the evidence provided, the Tribunal is satisfied that a new pattern of care has been established with care changing on 19 June 2019. Ms Aiello had care of 111 nights, or 69 per cent care, during the period from 19 June 2019 to 25 November 2019.
The Tribunal considered if an interim care arrangement might be appropriate given the court orders of 6 May 2019 and 30 October 2019. As the court orders clearly allow for Ms Aiello to have additional care of [the child] in circumstances where [Mr A] is unable to have care during his proposed time the Tribunal is satisfied that the actual care is in accordance with the care allowed in the court orders and therefore section 51 of the Act does not apply.
The existing care percentages in the assessment for [the child] were 59 per cent care to Ms Aiello and 41 per cent care to [Mr A]. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ 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 determinations must be revoked and replaced by new percentage of care determinations.
As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.
The Tribunal finds that Ms Aiello notified the Child Support Agency of the change in care on 12 July 2019 which is less than 28 days after the change occurred on 19 June 2019. According to paragraph 54F(3)(a) of the Act, the existing care determinations are therefore revoked on the day before the change of care day.

New care percentage determinations

Having revoked the existing determinations, the Tribunal must make new percentages of care determinations for Ms Aiello and [Mr A] under section 50 of the Act.
The Tribunal finds that Ms Aiello provides 69 per cent care and [Mr A] provides 31 per cent care of [the child] from 19 June 2019.

Date of effect of new care percentage determinations

Section 95N of the Child Support (Registration and Collection) Act 1988 determines the date of effect of a Tribunal decision to set aside a care percentage decision. Ms Aiello applied to the Tribunal on 28 May 2020 for a review of the 24 March 2020 objection decision made by the Child Support Agency. As her application was not within 28 days of receiving notice of this objection decision, the date of effect of any new decision by the Tribunal is the date she applied for review.
The Tribunal may extend the 28 days if there are special circumstances that prevented Ms Aiello from applying for review within this 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”. Examples include the parent being seriously ill, suffering a personal trauma, a natural disaster causing damage to the parent’s property or communication difficulties.
Ms Aiello told the Tribunal at hearing that she received her correspondence from the Child Support Agency by post but could not recall the exact date when the letter notifying her of the objection decision arrived. Ms Aiello said it was her view the post was delayed due to the coronavirus pandemic, which was a common occurrence at the time, but as soon as she received notification she acted immediately.
The Tribunal is satisfied Ms Aiello was advised about the outcome of the objection decision by post in a letter from the Child Support Agency dated 24 March 2020. Under provisions of the Acts Interpretation Act 1901 and the Evidence Act 1995, she was therefore taken to be served with written notice of this decision by 9 April 2020. For her application to have been made within 28 days it should have been received by the Tribunal no later than 7 May 2020.
While the Tribunal accepts it is possible there may have been short delays to the postal service as a result of the coronavirus pandemic, this would not explain why Ms Aiello was approximately 21 days late in applying for a review of the objection decision.
The Tribunal also notes in evidence that Ms Aiello sent an email to the Child Support Agency on 20 April 2020 stating that she did not agree with the “latest outcomes” and requested contact with her case officer.
The Tribunal is not satisfied the circumstances as described by Ms Aiello would have prevented her from making an earlier application for review to the Tribunal.
The Tribunal finds there were no special circumstances preventing Ms Aiello from applying for review within the timeframe prescribed. Accordingly the Tribunal will not extend the 28-day period and its decision is effective from the date of her application, being 28 May 2020.

DECISION

(a) The Tribunal sets aside the decision under review and, in substitution, decides that Ms Aiello provides 69 per cent care and [Mr A] provides 31 per cent care of [the child] from 19 June 2019.

[2020] AATA 4399

30 July 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Judicial Review

Statutory Construction

Appeal