Aleshire and O’Connell (Child support)

[2021] AATA 5180

Aleshire and O’Connell (Child support) [2021] AATA 5180 (10 December 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC022101

APPLICANT:  Mr Aleshire

OTHER PARTIES:  Child Support Registrar

Ms O’Connell

TRIBUNAL:Member J Prentice

DECISION DATE:  10 December 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the pre-existing care percentage determinations in place from 29 November 2019 should not be revoked. The date of effect of the Tribunal’s decision is 12 May 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – pre-existing percentage of care determinations should not be revoked - date of effect of objection - special circumstances did not exist - date of effect of the tribunal’s decision – special circumstances exist - tribunal decides to make a determination under subsection 95N(2) - decision under review set aside and substituted

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

1. Mr Aleshire and Ms O’Connell are the parents of a son, [Child 1], born 2005.  The pre-existing care for the child was recorded by the Child Support Agency (CSA) as being 100% to Mr Aleshire and 0% to Ms O’Connell from 29 November 2019.

2. On 28 July 2020 the CSA made the decision to record the care percentage for [Child 1] as 100% to Ms O’Connell and 0% to Mr Aleshire from 18 April 2020 based on information from the family assistance office.  Because this care change was notified more than 28 days from the date of the change, it had effect from 18 April 2020 for Mr Aleshire, and from 15 June 2020 for Ms O’Connell.

3. On 12 May 2021 Mr Aleshire objected to the decision as he claims it is incorrect and [Child 1] had not lived with Ms O’Connell for several months.

4. On 17 June 2021 the CSA disallowed Mr Aleshire’s objection.

5. On 17 August 2021 Mr Aleshire sought further review by the Administrative Appeals Tribunal (the Tribunal).

6. At the hearing on 6 October 2021 the Tribunal heard sworn evidence from Mr Aleshire who participated by conference telephone. As a person whose interests may be affected by the Tribunal’s decision, Ms O’Connell was invited to be added as a party to Mr Aleshire’s application, but she did not participate. In reaching a decision, the Tribunal has considered that evidence, together with the statements and documents provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975. Both Mr Aleshire and Ms O’Connell provided additional material.

ISSUE

1. The issue is whether the existing care percentage determinations are to be revoked and new care percentage determinations made.

CONSIDERATION

1. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (the Act). Put simply, a new care decision can be made if there has been a relevant change in the parents’ pattern of care: see Division 4 of Part 5 of the Act. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[1] The relevant policy appears at 2.2.2 of the Child Support Guide, which includes the following:

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case…

   Not all changes in care will result in the calculation of a different care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the patter of care, and will not result in a new care determination.

   …

   [1] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

2. Not all changes in care will result in the calculation of a different care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination. When determining the date of effect of a care change, the Registrar must first determine if a parent or non-parent carer’s care has increased or decreased (paragraphs 54F(3)(b) and 54H(3)(b)). The Registrar will determine if a parent or non-parent carer’s care has increased or decreased by comparing it to the care used in the child support assessment, for that parent or non-parent carer, on the day the care changed. The date of the care change will be the point of comparison even if a later care change is used in the assessment prior to the Registrar being notified of the care change currently being applied.

3. The percentage of care is determined under Division 4 of Part 5 of the Act. The Agency has to work out a percentage for each parent and each child of the assessment for a care period: section 50 of the Act. The care period is the period which the Registrar considers to be appropriate having regard to all the circumstances. The care percentage must reflect the actual care a person has had or is likely to have during the care period. Actual care is generally worked out on the number of nights that the child was, or is likely to be, in the care of a person during the care period under the care arrangement: section 54A of the Act. Importantly, a child cannot be considered to be in the care of more than one party to a child support assessment at a time.

4. Once each party’s care percentage is determined, it can be changed by revoking the old percentage and using a new care percentage based on actual care, under either section 54F, 54G or 54H of the Act. One of the requirements of section 54F is that 54G does not apply, and one of the requirements of section 54H is that sections 54F and 54G do not apply, so the starting point is section 54G. Section 54G is not applicable to the circumstances of the decision under review in relation to this application.

5. By way of background, Mr Aleshire informed the Tribunal that Ms O’Connell had [Child 1] evicted from her house by the police in February 2019.  The police contacted Mr Aleshire who was on a [location] at the time.  Mr Aleshire arranged for a friend of his (and [Child 1]’s) to pick [Child 1] up from school and [Child 1] was able to stay with them for a couple of weeks until Mr Aleshire returned from the [location].

6. [Child 1] then moved in with Mr Aleshire and stayed for about a month.  However Mr Aleshire decided [Child 1] needed more supervision, as Mr Aleshire was a fly-in fly-out (FIFO) worker and [Child 1] had been missing school.  Mr Aleshire arranged for [Child 1] to move in with his sister, [Mr A], and her partner and their children.  [Mr A] has provided supporting evidence to these arrangements and the landlord was also informed (as is required by the rental agreement).

7. Mr Aleshire then purchased a villa, adjacent to his own, for his other son, [name deleted], and [Child 1] moved in with him.

8. Mr Aleshire told the Tribunal that [Child 1] had been living with him, his daughter or his son since early 2019; and Mr Aleshire has been supporting him financially throughout that time.

9. Mr Aleshire alleges that Ms O’Connell claimed [Child 1] was in her care so that she would receive priority for social housing.

10. Mr Aleshire advised the Tribunal that the first he knew that the recorded care of [Child 1] had been changed from 100% to him; to 100% care to Ms O’Connell was when the CSA contacted him to say that he should be paying child support.

11. Mr Aleshire says he was not contacted to respond to Ms O’Connell’s claim for change of care arrangements, but acknowledges that as a FIFO worker it is sometimes difficult to get in touch with him.

12. Mr Aleshire’s evidence was that he lodged an objection to the change in care arrangements and was requested to provide various documentation.  He further stated that in the meantime, his daughter, [Mr A], took [Child 1] to the local Social Security office (in April 2020) to explain their situation and the officer with whom they met told them that she would take care of everything and speak to the CSA and that they didn’t need to do anything further.

13. Mr Aleshire noted that, with the benefit of hindsight, he now realises that this was the wrong advice, as he was still required to lodge the documentation.  The result was that despite the fact [Child 1] was living with him, his objection was dismissed, and the CSA left the care being recorded as Ms O’Connell having 100% care.

14. This application before the Tribunal, and objection by Mr Aleshire, requires the Tribunal to consider whether the percentages of care determinations in place as at 18 April 2020 are required to be revoked and new percentage of care determinations made.

15. Given the circumstances of the case, and having had regard to all the documentary evidence provided and the sworn oral evidence at hearing, as at 18 April 2020, the Tribunal is satisfied that Mr Aleshire had been having 100% care of [Child 1] for some time and was likely to continue to do so from 18 April 2020. The Tribunal notes that [Child 1] has not always resided with Mr Aleshire, however Mr Aleshire provided continuing care and financial support, the type of situation which is recognised in the Guide at 2.2.1 as follows:

    Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

16. As the Tribunal has reached a different conclusion to the objections officer, the decision under review will be set aside however consideration is also required as to the date of effect of the Tribunal’s decision.

DATE OF EFFECT

1. As the objections officer did not allow Mr Aleshire’s objection, there was no need to consider any date of effect matters. Had the objections officer allowed the objection, the date of effect of the decision would be subject to section 87AA of the Child Support (Registration and Collection) Act 1988 (the Registration Act). 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. However, subsection 87AA(2) of the Registration Act provides an exception to that general rule if there are special circumstances that prevented the person from lodging the objection within 28 days such that the objection can be taken to have been lodged within time.

2. If, upon review, the Tribunal changes the decision then the Tribunal must also consider the implication of the late lodgement of the objection. Subsection 43(6) of the Administrative Appeals Tribunal Act 1975 permits the Tribunal to specify a date from when its decision should take effect.

3. Additionally in relation to applications to the Tribunal for review, section 95N of the Registration Act provides that a review decision will have effect from the date the application for review was made if the application was lodged more than 28 days after the objection decision. However, if there are special circumstances that prevented the person from lodging the application within 28 days, the Tribunal may allow for a longer application period.

4. On 12 May 2021, Mr Aleshire lodged an objection to the decision of 28 July 2020. This was outside the 28-day period for the purposes of section 87AA.

5. Further, Mr Aleshire’s application to the Tribunal on 17 August 2021 was more than 28 days after the objection decision was notified to Mr Aleshire and therefore outside the 28-day period for the purposes of section 95N.

6. Chapter 4.1.8 of the Guide in referring to special circumstances (for the purposes of subsection 87AA(2)) relevantly states as follows:

   Special circumstances:

   In considering special circumstances the Registrar will look at the particular circumstances of the applicant.  The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe.  They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date.  Some examples may include:

   -    the parent was seriously ill or had an accident that stopped them from lodging an objection;

   -    the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent’s property;

   -    the parent had communication difficulties, including isolation, illiteracy or poor English language skills;

   -    the parent reasonably relied upon inaccurate or misleading information

7. Mr Aleshire informed the Tribunal that he works on a remote FIFO [location] which has very poor communication. Mr Aleshire said that he was not aware that Ms O’Connell had lodged an application for change of care arrangements, and had not received any advice that there was an inquiry or hearing to discuss her application. Mr Aleshire conceded that it is very difficult to contact him when he is working remotely. The Tribunal accepts that Mr Aleshire’s working circumstances may delay Mr Aleshire’s response to correspondence and the Tribunal acknowledges that Mr Aleshire’s evidence that his first knowledge of the change of care to 100% to Ms O’Connell and 0% to him was when the CSA contacted him to say that he should be paying child support. However, Mr Aleshire was sent a letter on 28 July 2020 (page 108 and 109 of the hearing papers) advising him of the change. Mr Aleshire’s objection to the CSA’s decision was nearly 10 months after this correspondence and the Tribunal is not satisfied that there are special circumstances that prevented him lodging an objection at an earlier date. However, the application to the Tribunal was only slightly outside the 28-day period and in relation to that delay, the Tribunal is satisfied that there are special circumstances for the purposes of section 95N.

8. Having regard to these findings, the Tribunal finds that the date of effect of this decision should only be from the date of the objection, that is 12 May 2021.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the pre-existing care percentage determinations in place from 29 November 2019 should not be revoked. The date of effect of the Tribunal’s decision is 12 May 2021.