Allpress and Allpress (Child support)

[2022] AATA 4007

Allpress and Allpress (Child support) [2022] AATA 4007 (7 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/MC023879 and 2022/MC023899

APPLICANT:  Ms Allpress

OTHER PARTIES:  Child Support Registrar

Mr Allpress

TRIBUNAL:  Member D Tucker

DECISION DATE:  7 October 2022

DECISION:

2022/MC023879

The Tribunal affirms the decision under review that from 10 April 2018, the percentages of care for [Child 1] were 51% and 49% to the mother and father respectively.

2022/MC023899

The decision under review is set aside and in substitution the Tribunal decides that pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, subsection 87AA(1) of the Act applies in the matter as if the reference to 28 days in paragraph 87AA(1)(b) is a reference to a longer period, such that the objection was lodged within that period. This means the objection was lodged in time.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – parents living under the same roof – shared care appropriate determined – decision under review affirmed

CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist – 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 Allpress (the father) and Ms Allpress (the mother) are the separated parents of two sons. This review concerns only the care of their youngest son, [Child 1] (the child), born 15 April 2004.

2. On 10 April 2018 the mother lodged claims with Services Australia – Centrelink (Centrelink) for family tax benefit (FTB) and newstart allowance. In conjunction with these claims, she told Centrelink that she was separated under one roof (SUOR) from the father. She completed a Relationship Details (SS293) - Separated Under One Roof form (SUOR form)[1], in which she stated she had been SUOR since 1 April 2017 and was solely responsible for the child’s care.

   [1] Reproduced at page 15 of the hearing papers.

3. On 16 July 2018 the mother applied to Services Australia – Child Support (the CSA) for a child support assessment at Centrelink’s suggestion, because she would be paid at a lower rate unless she took reasonable maintenance action. With the assistance of an interpreter, she told a CSA assessment officer, ‘[Officer A]’, that she had been SUOR since 10 April 2018, and had 100% care of the child from that date and wanted private collection rather than agency collection.

4. On 16 July 2018 the CSA wrote to the father at the address he shared with the mother, to inform him that she had applied for a child support assessment:

   Before we process the application would like to speak with you to ensure that the information we have is correct and to tell you more about child support.

   …

   Please call us on 131272 before 29 July 2018. If we do not hear from you by this date, we will be required to process the application based on the information provided by [Ms Allpress].

5. The father told the Tribunal that he did not receive this letter and saw a copy of it for the first time recently. Presumably, because the father did not respond to the CSA’s letter, [Officer A] telephoned him on 24 August 2018 and noted the following from their conversation:

   Other party advised he is still married and in a domestic relationship and not sure why we are doing this.

   other party advised he still paying all bills and supporting his family and not happy we are going through this.

   I have advised i will need to speak with the applicant to discuss and will call him back with the outcome.

6. The father recalls that he was puzzled by this phone call and explained to [Officer A] that he was partnered with the mother and that she had access to his bank account, from which she withdrew up to $2,000 per month to meet their household expenses. [Officer A] said he was not aware of this and would speak to the mother again and call him back.

7. The same day, on 24 August 2018, [Officer A] requested information from Centrelink about the mother’s relationship history. Presumably this prompted Centrelink to provide the CSA with the SUOR form completed by the mother on 10 April 2018[2].

   [2] Page 15 of the hearing papers.

8. Later that day [Officer A] told the mother that her child support application could not be processed if “one party is saying that they are still in a relationship”. However, on 31 August 2018, the CSA granted the mother’s application without further contact with the father. Presumably, the CSA relied upon Centrelink’s decision that the mother was SUOR, in the face of the father’s contrary assertion.

9. The father told the Tribunal that until recently he was unaware of Centrelink’s decision that he was SUOR and that he had no contact with Centrelink by letter or telephone. At the Tribunal’s request, Centrelink provided its records relevant to its decision. They show that Centrelink did not contact the father by telephone and accepted the mother’s assertions that the father had refused to complete the SUOR form which had been mailed to him.

10. On 31 August 2018 the CSA granted the mother’s application and determined that from 10 April 2018 she had 100% care of the child, effective from 16 July 2018 (the date of her application).

11. The same day the CSA sent letters about its decision to both the mother and the father at their shared address[3]. The father told the Tribunal he did not receive this letter, was not aware of it, and had no further contact with the CSA by telephone or mail until after [in May] 2021. According to the CSA’s records, its next telephone contact with the father was on 15 June 2021.

    [3] Page 56 – 57 of the hearing papers.

12. The father stated that until 2021 he was unaware of the CSA’s decision to grant a child support assessment. The father was working as [an occupation 1] six to seven days per week, leaving home each day around 3 AM and returning around 8 PM. His wife’s role was to manage their household, which included collecting their mail. Although she regularly passed on other mail to him, he never saw any letters from the CSA or Centrelink. He speculated that the mother intercepted these letters so he would not learn of her claims that she was SUOR, and he was not providing care or financial support.

13. At the hearing, the Tribunal asked the mother several times to respond to the father’s speculation that she had intercepted his mail from Centrelink and the CSA. Her responses were oblique and appeared evasive. She stated that she had done everything correctly by the government and that “he [The father] can’t accuse me without evidence” and that he was “guessing”.

14. The mother agreed that she collected the mail at her home and said she had received letters from the CSA addressed to her. However, she denied ever seeing mail from the CSA that arrived at her home addressed to the father. The father argued that this was implausible, given that the CSA sent matching letters to him and the mother at the same address on the same day.

15. The mother eventually claimed that she had told the father about her notification to Centrelink that they were SUOR and her application for a child support assessment. She argued that this was why he transferred $300 per week to her bank account from his earnings. The father denied this and explained that he transferred $300 from his earnings into her bank account each week for her to buy groceries for the household and meet her personal expenses. These transfers were not child support as he was not aware that an assessment was in place.

16. The father stated that occasionally the mother told him that if he did not provide her with sufficient money for household expenses, she would apply for a child support assessment. He observed that according to the CSA’s letter[4] his child support liability was $1,440.50 per month – more than the $300 per week. He asked rhetorically, if there was no reason to keep the child support assessment a secret from him, why did the mother not opt for agency collection to ensure his full compliance?

    [4] Page 56 of the hearing papers.

17. On 27 April 2022 the father told the CSA that while living with the mother he was 100% financially responsible for all costs related to the home, including groceries, utilities, mortgage payments, and the child’s living and education expenses – and the mother provided care by cooking, cleaning, washing and other household duties and doing school pickups and drop-offs.

18. The father also told the CSA that in addition to being the breadwinner, he helped the child with homework, assignments, career advice, and took him away camping and fishing on the weekends. He gave the child driving lessons and on weekends cooked meals for the family and performed domestic tasks such as gardening and building. He stated that these living arrangements took the same form over 20 years, during which the mother never worked outside their home.

19. On 29 April 2022 the mother responded by telling the CSA that the father did not contribute to the care of the children as he left for work early in the morning and would return at night. He did not contribute to household duties or drop-offs and pickups from school, or do household chores or work around the house, and they employed a gardener and a driving instructor. She agreed that the father paid the mortgage and “a few bills”.

20. At hearing the father reiterated his account of his living arrangements prior to [in May] 2021. He provided financial records showing that their mortgage, council rates and utility bills were paid from his bank account. Other bills were issued in the mother’s name, but it was his earnings that she used to pay them. He was closely involved with the child and participated in family life despite working long hours. Based on this, he claimed that he and the mother each had 50% care until [in May] 2021.

21. The father told the Tribunal that he did eventually SUOR from the mother around mid-2020, because they began sleeping in separate bedrooms, at the mother’s request, because he was snoring. However, he also stated that he and the mother continued to share meals and domestic duties and that his earnings met the family’s living and housing costs. The Tribunal infers from the father’s evidence that he is not familiar with the criteria for determining whether a couple are SUOR for social security purposes.

22. The father took the Tribunal to a police report of an incident on [in May] 2021[5]. It states that the police attended his home because the mother reported he had been violent. The report states that the father and the mother had eaten dinner together before arguing because the father made pudding, causing noise that irritated the mother. The father submitted that this scenario is inconsistent with the mother’s claim that they were living separately and apart.

    [5] Page 142 of the hearing papers.

23. From the date of this incident ([in May] 2021) the father left the family home permanently and [later in May] 2021 consented (without admissions) to a family violence intervention order barring his return for 12 months. [Later in] May 2021 the mother opted for agency collection. The father speculated that prior to this, the mother had opted for private collection to prevent him knowing that an assessment was in place, which would in turn expose her claims that she was SUOR and that he was not supporting her or the child.

24. On 12 April 2022 the father objected to the CSA’s decision of 31 August 2018 to attribute 100% care to the mother, on the basis that he and the mother each had 50% care until he left the family home on [in May] 2021.

25. On 4 May 2022 the CSA allowed the father’s objection on the basis there was insufficient evidence to demonstrate that the mother had 100% care from 10 April 2018. The CSA instead determined that the care percentages were 49% and 51% to the father and the mother respectively from 10 April 2018[6].

    [6] The same day the CSA determined that from [in May] 2021 the care percentages changed to 100% and 0% to the mother and father respectively.

26. The father’s objection was outside the legislated 28-day timeframe and the CSA determined that there were no special circumstances preventing him from lodging the objection within time. It therefore determined the new care percentages took effect from 12 April 2022 – the date he lodged his objection.

27. The CSA’s objection decision retrospectively reduced the mother’s entitlement to FTB and consequently, Centrelink raised a debt against her.

28. On 12 May 2022 the mother applied to this Tribunal for further review, stating that the CSA’s care percentage decision was incorrect, because she had 100% care of the child since 10 April 2018.

29. On 16 May 2022 the mother applied to this Tribunal for further review of the date of effect determination of the care percentage decision.

30. On 28 July 2022 she and the father appeared via telephone hearing and gave affirmed evidence with the assistance of a [language] speaking interpreter. The Tribunal also considered relevant documents and submissions provided by the CSA and both parties, and additional documents provided by Centrelink at the Tribunal’s request.

31. At this hearing, the Tribunal heard evidence in relation to both decisions under review.

LEGISLATION AND ISSUES

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The Tribunal also considered the Child Support Guide (the Guide), which contains government policy about the application of child support legislation.[7]

   [7] The Tribunal is not bound by such policy, but for the sake of consistency will apply it unless there is a cogent reason not to, in accordance with the rulings by the Federal Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

3. The Tribunal has jurisdiction to review only those CSA decisions which have been subject to an objections process via the CSA.[8] On 31 August 2018 the CSA made two decisions. The first was to grant the mother’s application for a child support assessment. The second was that the percentages of care were 100% and 0% to the mother and father respectively. Although it was suggested to the father that he object to the first decision[9], his actual objection was only about the second decision and consequently it is the only decision the Tribunal can currently review.

   [8] According to section 89 of the Child Support (Registration and Collection) Act 1988.

   [9] Page 159 of the hearing papers.

4. The father has provided evidence that weighs against the CSA’s finding that the parents were SUOR in 2018 when the mother applied for a child support assessment and therefore, the correctness of the CSA’s decision to grant it. The Tribunal notes that the father is still able to lodge an objection to that decision, which would presumably be accompanied by an application for an extension of time on the basis that he was unaware of the CSA’s decision until several years after it was made.

5. The questions arising in this matter are:

   ·      What is the decision under review?

   ·      What percentages of care did the father and the mother have from 10 April 2018?

   ·      From what date should these care percentages apply?

CONSIDERATION

What percentage of care did the father and the mother have from 10 April 2018?

1. The Tribunal considered the Guide, which contains government policy about the application of child support legislation. The Tribunal is not bound by government policy but will apply it in the absence of a cogent reason not to, for the sake of administrative consistency, in accordance with a ruling of the Federal Court[10].

   [10] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

2. At section 2.2.1, the Guide states:

   2.2.1 Basics of care

   Where parents are separated but living in the same house, the Registrar will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

3. Where parents are SUOR, the starting point for the CSA is to reflect 50% care to both parents unless there is evidence to support a different decision. The mother argued that she had 100% care because she provided direct care to the child, such as preparing meals and taking him to and from school. The father does not dispute this, but the mother’s claims do not support a finding that she had 100% care, given the father’s contribution as the family breadwinner and his involvement with the child outside his working hours.

4. The Tribunal finds that the evidence does not indicate that the mother had 100% care prior to [in May] 2021 and that it is likely that each parent had 50% care from 10 April 2018, notified on 16 July 2018.

From what date should the care percentages apply?

1. The father lodged his objection to the CSA’s care percentage decision of 31 August 2018 on 12 April 2022, well outside the legislated 28-day time frame. The father claimed that he was unable to lodge an objection any earlier because, for the reasons outlined above, he was not aware that a child support assessment had been in place from 16 July 2018 until he received the hearing papers for this review. The Tribunal finds the father credible on this point and accepts that special circumstances exist that warrant an extension of time to 12 April 2022.

2. Based on this the Tribunal finds it appropriate to apply the discretion afforded by subsection 87AA(2) to provide an extension of time to deem that his objection was received within the prescribed timeframe. Therefore, the Tribunal’s decision will have effect from 16 July 2018.

3. However, the Tribunal notes that granting an extension of time will have no practical effect upon the father’s child support liability, as during the affected period, from 31 August 2018 to [in May] 2021, the child support was privately collected.

4. The Tribunal notes that on 6 May 2022 the CSA determined that the percentages of care were 100% and 0% to the mother and father respectively from [in May] 2021, notified on 4 May 2022.

DECISION

2022/MC023879

The Tribunal affirms the decision under review that from 10 April 2018, the percentages of care for [Child 1] were 51% and 49% to the mother and father respectively.

2022/MC023899

The decision under review is set aside and in substitution the Tribunal decides that pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, subsection 87AA(1) of the Act applies in the matter as if the reference to 28 days in paragraph 87AA(1)(b) is a reference to a longer period such that the objection was lodged within that period. This means the objection was lodged in time.