Aldous and Aldous (Child support)

[2021] AATA 1297

Aldous and Aldous (Child support) [2021] AATA 1297 (2 March 2021)

Date:  2 March 2021

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/BC020252, 2020/BC020253, 2021/BC020941 & 2021/BC020942

APPLICANT:  Mr Aldous

OTHER PARTIES:  Ms Aldous

Child Support Registrar

TRIBUNAL:Member P Jensen

DATE OF DECISIONS:                   2 March 2021

DECISIONS IN RESPECT OF A CHANGE IN CARE ON 2 FEBRUARY 2020

The objections officer’s decision to record Ms Aldous as providing 53% care to [Child 1] with effect from 31 January 2020 and to record Mr Aldous as providing 47% care to [Child 1] with effect from 20 March 2020 is varied so that Ms Aldous is recorded as providing 50% care to [Child 1] with effect from 3 February 2020 and Mr Aldous is recorded as providing 50% care to [Child 1] with effect from 20 March 2020.

The objections officer’s decision to record Ms Aldous as providing 52% care to [Child 2] with effect from 31 January 2020 and to record Mr Aldous as providing 48% care to [Child 2] with effect from 20 March 2020 is varied so that Ms Aldous is recorded as providing 50% care to [Child 2] with effect from 3 February 2020 and Mr Aldous is recorded as providing 50% care to [Child 2] with effect from 20 March 2020.

The objections officer’s decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is affirmed.

The Tribunal decides to make a determination pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 and extend the 28-day period referred to in subsection 95N(1) of that Act to 6 November 2020.

DECISIONS IN RESPECT OF A REPORTED CHANGE IN CARE ON 20 APRIL 2020

On 29 September 2020 an objections officer decided to set aside an original care decision to record Mr Aldous as providing 10% care and Ms Aldous as providing 90% care to [Child 1] and [Child 2] with effect from 20 April 2020, and, in substitution, not record a change in care from 20 April 2020. Mr Aldous applied to the Tribunal for review of that decision. He subsequently notified the Tribunal in writing that he wished to discontinue his application for review of that decision, and it was dismissed pursuant to subsection 42A(1B) of the Administrative Appeals Tribunal Act 1975.

The objections officer’s decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is affirmed.

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 – care percentage decisions under review varied – date of effect – whether there were special circumstances that prevented the objection being lodged in time – date of effect decisions under review affirmed – whether there were special circumstances that prevented the application for review being lodged in time – special circumstances existed – care percentage decisions applied from earlier date

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

Introduction

1. Mr Aldous and Ms Aldous are the parents of three children. A child support case was registered in 2012 with what is commonly called the Child Support Agency or CSA. The current applications for review concern the parents’ recorded care of their two younger children, [Child 1] and [Child 2]. From September 2018, Mr Aldous was recorded as providing 9% care and Ms Aldous was recorded as providing 91% care to both children.

2. The current applications for review concern possible changes in care on or about 2 February 2020 and 20 April 2020.

A change in care on or about 2 February 2020

1. On 20 March 2020, Mr Aldous informed the CSA that a change in care occurred on 2 February 2020, and that from that date, each parent was providing 50% care. On 15 April 2020, Ms Aldous confirmed the information that Mr Aldous had provided.

2. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Assessment Act”). Decision-makers are required to determine the pattern of care each parent has provided, and is likely to provide, during the appropriate care period: section 50 of the Assessment Act. On 15 April 2020 the CSA concluded that a new pattern of care commenced on 2 February 2020 and each parent was providing, and was likely to continue to provide, 50% care. However, the change in care was not reported within 28 days of its occurrence, and so the decreased percentage of care took effect from the date on which the change in care occurred and the increased percentage of care took effect from the date on which the change in care was reported: section 54B of the Assessment Act. It was for those reasons that on 15 April 2020 the CSA decided to record Ms Aldous as providing 50% care to the children with effect from 2 February 2020 and to record Mr Aldous as providing 50% care to the children with effect from 20 March 2020: sections 50, 54B and 54F of the Assessment Act. There was no legislative discretion to nominate different dates of effect.

3. Both parents were notified of that care decision via letters dated 15 April 2020. The letters stated that an objection could be lodged in respect of the decision, and any such objection should be lodged within 28 days of being notified of the decision. Ms Aldous lodged an objection on 3 June 2020. Both parents provided evidence concerning the pattern of care since 2 February 2020. In particular, Mr Aldous provided a care calendar and calculations that were based on his care calendar. He calculated that he had provided 47% care to [Child 1] and 48% care to [Child 2] during the period from 31 January 2020 to 28 June 2020.

1. On 29 September 2020, an objections officer made three decisions:

• A care decision to vary the parents’ recorded care of [Child 1] so that Ms Aldous is recorded as providing 53% care with effect from 31 January 2020 and Mr Aldous is recorded as providing 47% care with effect from 20 March 2020.

• A care decision to vary the parents’ recorded care of [Child 2] so that Ms Aldous is recorded as providing 52% care with effect from 31 January 2020 and Mr Aldous is recorded as providing 48% care with effect from 20 March 2020.

• A decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”), which meant that the objections officer’s two care decisions only took effect from 3 June 2020, which was the date on which Ms Aldous belatedly objected to the original care decision.

1. Both parents were notified of the objections officer’s decisions via letters dated 29 September 2020. The letters stated that they could apply to the Tribunal for further review, and any such application should be lodged within 28 days of being notified of the objections officer’s decisions.

2. On 6 November 2020, Mr Aldous applied to the Tribunal for review of all three decisions. His delay in applying for review of the objections officer’s two care decisions had possible consequences in terms of the date of effect of any change to those decisions, but he was required to apply for an extension of time in which to apply for review of the objections officer’s decision to not make a determination pursuant to subsection 87AA(2) of the Registration Act. He lodged an extension of time application. Ms Aldous was not a party to those proceedings. I decided to grant the extension of time application and I have given separate reasons for that decision.

3. The substantive matters were heard on 2 March 2021. Ms Aldous elected to not participate in the hearing. Mr Aldous gave sworn evidence via conference phone.

4. In relation to the change in care, Mr Aldous said that he provided some day-time care from 31 January 2020 but he probably did not start providing overnight care until 3 February 2020. He said that he and Ms Aldous agreed to provide a general pattern of week-about care. I accept his evidence on those matters. For those reasons, the preferable care decision at first instance was to record Ms Aldous as providing 50% care to both children with effect from 3 February 2020, and to record Mr Aldous as providing 50% care with effect from 20 March 2020, and the objections officer’s care decisions will be varied accordingly. It is worth noting that the Assessment Act envisages a point-in-time approach to the making of care decisions, based on the care that was provided up until the date of the original decision and the care that was likely to be provided thereafter. It does not provide for a retrospective assessment of the care that was actually provided during the months after the original decision was made. If there was a subsequent change in the parents’ pattern of care, either parent could have reported that change in care to the CSA.

5. The objections officer also made a determination pursuant to subsection 87AA(2) of the Registration Act which limited the retrospective effect of the objections officer’s care decisions and, if affirmed, would limit the retrospective effect of the Tribunal’s decisions to vary the objections officer’s care decisions. As noted earlier, Mr Aldous belatedly applied for review of the subsection 87AA(2) determination and I granted his extension of time application. Section 87AA relevantly provides that ordinarily, if an objection is lodged more than 28 days after the person is notified of the original care decision, and an objections officer varies the care decision, the change only has effect from the date on which the person lodged their objection. An exception applies if there were special circumstances that prevented the person from objecting within time: subsection 87AA(2) of the Registration Act.

6. The CSA informed the parents of the original care decision via letters dated 15 April 2020. Ms Aldous objected to that decision, but she did not do so until 3 June 2020. The CSA asked her why she did not object sooner. The CSA recorded her response:

   When contacted to make the care change I thought that I was my notification within 28 days. I thought I was making an objection then.

7. On 20 April 2020, Ms Aldous reported a change in care from 20 April 2020. She reported that she started providing 90% care from 20 April 2020 due to “Corona virus / home schooling”. It seems clear that she was reporting a later change in care; she was not objecting to the decision concerning the change in care that occurred around the start of February 2020. There is no other relevant evidence on point and, as noted earlier, Ms Aldous did not participate in the hearing on 2 March 2021. Based on the evidence that has been provided, I find that Ms Aldous did not object to the original care decision dated 21 April 2020 within 28 days of being notified of that decision, and there were not special circumstances preventing her from objecting within time. The objections officer’s decision to not make a subsection 87AA(2) determination is therefore affirmed.

8. In relation to Mr Aldous’s delay in applying to the Tribunal for review of the objections officer’s care decisions, section 95N of the Registration Act relevantly provides that ordinarily, if an application for review is lodged more than 28 days after the person is notified of the objections officer’s care decision, and the Tribunal changes the care decision, the change only has effect from the date on which the person lodged their application for review. An exception applies if there were special circumstances that prevented the person from lodging their application for review within time: subsection 95N(2) of the Registration Act.

9. As noted earlier, the objections officer’s decision was made on 29 September 2020. Mr Aldous contacted the Tribunal Registry on 16 October 2020. At the hearing he explained that he had intended to lodge applications for review with the Tribunal because he had believed that the objections officer’s decisions were unfavourable to him, but as he read the decisions to a Registry staff member, it appeared to him and the staff member that the decisions were favourable to him. He and the staff member had difficulty understanding the objections officer’s decisions. The staff member suggested that he contact the CSA and seek clarification of the decisions that had been made. He contacted the CSA and a similar conversation occurred with a CSA staff member; both he and the staff member had difficulty understanding the objections officer’s decisions. Mr Aldous said the CSA staff member told him that she would check with someone else and phone him back. That did not occur, and after about a week and a half, Mr Aldous contacted the CSA again and spoke to someone else who was not willing to clarify the decisions that had been made. Mr Aldous was told that his only option was to apply to the Tribunal for review. He then promptly did so, but by that stage more than 28 days had transpired since the objections officer had made the decisions.

10. I accept Mr Aldous’s evidence as to why he did not lodge his applications for review within the 28-day period. In particular, I accept that most people would struggle to understand the collective effect of the decisions that the objections officer made in respect of the reported changes in care in February and April 2020, and Mr Aldous did not understand them, notwithstanding his efforts to do so, and he was therefore effectively prevented from making an informed decision as to whether to apply for review of the decisions. I find that the requirements of subsection 95N(2) of the Registration Act are satisfied and it is appropriate to extend the 28-day period referred to in subsection 95N(1) of the Registration Act to 6 November 2020, which was the day on which Mr Aldous lodged his applications for review of the objections officer’s care decisions. His delay in applying to the Tribunal for review therefore does not result in an additional limit on the retrospective effect of the Tribunal’s decisions to vary the objections officer’s care decisions.

A reported change in care from 20 April 2020

1. On 20 April 2020, Ms Aldous reported a change in care from 20 April 2020. She said she was providing 90% care to both children from that date. The following day, Mr Aldous confirmed that information and the CSA decided to record Mr Aldous as providing 10% care and Ms Aldous as providing 90% care with effect from 20 April 2020, and it sent letters to both parents notifying them of the decision. On 25 May 2020, Mr Aldous objected to the decision. On 29 September 2020, an objections officer made two decisions:

• A care decision to not record a change in care from 20 April 2020.

• A decision to not make a determination pursuant to subsection 87AA(2) of the Registration Act, which meant that the objections officer’s care decision only took effect from 25 May 2020, which was the date on which Mr Aldous belatedly objected to the original care decision.

1. Both parents were notified of the objections officer’s decisions via letters dated 29 September 2020. The letters stated that they could apply to the Tribunal for further review, and any such application should be lodged within 28 days of being notified of the objections officer’s decisions.

2. On 6 November 2020, Mr Aldous applied to the Tribunal for review of both decisions. He subsequently notified the Tribunal in writing that he wished to discontinue his application for review of the objections officer’s care decision to not record a change in care from 20 April 2020, and that application was dismissed pursuant to subsection 42A(1B) of the Administrative Appeals Tribunal Act 1975. He was required to apply for an extension of time in which to apply for review of the objections officer’s decision to not make a subsection 87AA(2) determination. He lodged an extension of time application. Ms Aldous was not a party to those proceedings. I decided to grant the extension of time application and I have given separate reasons for that decision.

3. There is no dispute that Mr Aldous received the original notification letter on 21 April 2020 — it was sent electronically — and he did not object until 25 May 2020, which was more than 28 days later. His reasons for the delay can be summarised as follows. For many years, the parents attended to the payment of child support privately and they had an agreement that, regardless of Mr Aldous’s assessed rate of child support payable, he would pay $150 per child per week while Ms Aldous was providing full-time care, or close to full-time care. Ms Aldous reported a change in care from 20 April 2020 and although there had not been a change in care, Mr Aldous was agreeable to saying that there had been a change in care because it would not affect the amount of child support that he actually paid, and he assumed that Ms Aldous would receive a higher rate of government payment in respect of her greater recorded care. (As an aside, the effect of Mr Aldous’s evidence appeared to be that he assumed that their arrangement would result in Ms Aldous receiving public money to which she was not entitled.) It was not until 18 May 2020 that the CSA informed Mr Aldous that it had granted an application by Ms Aldous to have it collect the ongoing child support payable. He objected to the care decision shortly thereafter.  

4. On Mr Aldous’s account of events, he had always known that the care decision that was made on 21 April 2020 was incorrect, but he was not motivated to object to the decision until he was required to pay the consequential rate of child support payable. Those circumstances did not prevent him from objecting within time. The decision to not make a determination pursuant to subsection 87AA(2) of the Registration Act was therefore the correct decision and will be affirmed.

DECISIONS IN RESPECT OF A CHANGE IN CARE ON 2 FEBRUARY 2020

The objections officer’s decision to record Ms Aldous as providing 53% care to [Child 1] with effect from 31 January 2020 and to record Mr Aldous as providing 47% care to [Child 1] with effect from 20 March 2020 is set aside and, in substitution, Ms Aldous is recorded as providing 50% care to [Child 1] with effect from 3 February 2020 and Mr Aldous is recorded as providing 50% care to [Child 1] with effect from 20 March 2020.

The objections officer’s decision to record Ms Aldous as providing 52% care to [Child 2] with effect from 31 January 2020 and to record Mr Aldous as providing 48% care to [Child 2] with effect from 20 March 2020 is set aside and, in substation, Ms Aldous is recorded as providing 50% care to [Child 2] with effect from 3 February 2020 and Mr Aldous is recorded as providing 50% care to [Child 2] with effect from 20 March 2020.

The objections officer’s decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is affirmed.

The Tribunal decides to make a determination pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 and extend the 28-day period referred to in subsection 95N(1) of that Act to 6 November 2020.

DECISIONS IN RESPECT OF A REPORTED CHANGE IN CARE ON 20 APRIL 2020

On 29 September 2020 an objections officer decided to set aside an original care decision to record Mr Aldous as providing 10% care and Ms Aldous as providing 90% care to [Child 1] and [Child 2] with effect from 20 April 2020, and, in substitution, not record a change in care from 20 April 2020. Mr Aldous applied to the Tribunal for review of that decision. He subsequently notified the Tribunal in writing that he wished to discontinue his application for review of that decision, and it was dismissed pursuant to subsection 42A(1B) of the Administrative Appeals Tribunal Act 1975.

The objections officer’s decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is affirmed.