Alves and Alves (Child support)

[2020] AATA 5564

Alves and Alves (Child support) [2020] AATA 5564 (2 November 2020)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019759 and 2020/MC019787

APPLICANT:  Ms Alves

OTHER PARTIES:  Child Support Registrar

Mr Alves

TRIBUNAL:  Member A Ducrou

DECISION DATE:  2 November 2020

DECISION:

The decisions under review are 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 – decision under review affirmed – date of effect – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist – decision under review affirmed

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. Ms Alves and Mr Alves are the separated parents of two daughters, now aged 17 and 19. This review is about the percentages of care for Ms Alves and Mr Alves that apply in relation to the administrative assessment of child support for their children.

2. The Department of Human Services – Child Support, now Services Australia (the Agency) recorded that from 7 September 2018 Ms Alves had a percentage of care for the children of 100% and Mr Alves had a percentage of care of 0%.

3. Mr Alves contacted the Agency on 22 June 2020. He advised that he had the children in his care for 100% of the time from approximately 2 April 2019 until approximately 3 November 2019 when they returned to Ms Alves’s 100% care as Ms Alves was hospitalised and underwent a lengthy period of rehabilitation. On 24 June 2020 the Agency contacted Ms Alves who confirmed that there had been a change in the care of the children.

4. On 24 June 2020 a delegate of the Child Support Registrar (the Registrar) decided to make new percentage of care determinations for the children.  A percentage of care of 0% for Ms Alves and a percentage of care of 100% for Mr Alves were recorded as particulars of the administrative assessment of child support for the children. The care percentage of 0% for Ms Alves was applied with effect from 2 April 2019 and the care percentage of 100% for Mr Alves was applied with effect from 22 June 2020.

5. On 31 July 2020 Ms Alves lodged an objection to the decision made on 24 June 2020. On 25 August 2020 an objections officer of the Agency decided to allow the objection. The objections officer determined that care percentages of 0% for Ms Alves and 100% for Mr Alves were to be recorded as particulars of the administrative assessment of child support for the children.

6. On 25 August 2020 the objections officer made a further decision. That decision was made pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). The objections officer determined that subsection 87AA(1) of the Registration and Collection Act applies as if the reference to 28 days were a reference to the longer period that commenced on 6 April 2019 on the basis that the extension is appropriate and there were special circumstances that prevented Ms Alves from lodging her objection to the care percentage decision made on 24 June 2020 within the period of 28 days after notice of the care percentage decision was served. This resulted in the care percentages as determined by the objections officer being applied in the administrative assessment of child support for the children with effect from 6 April 2020.

7. Ms Alves lodged applications for independent review of the objections officer’s decisions with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application for review of the care percentage decision was lodged electronically on 30 August 2020 (AAT review number 2020/MC019759). The application for review of the determination of the date of effect of the objections officer’s decision was lodged by telephone on 3 September 2020 (AAT review number 2020/MC019787).

8. The tribunal conducted a hearing on 30 October 2020. Ms Alves and Mr Alves participated at the hearing by telephone via Microsoft Teams audio. They gave oral evidence on affirmation and made oral submissions. The Registrar did not participate in the hearing. The tribunal had before it documents provided by the Registrar numbered 1 to 123 (for AAT review number 2020/MC019759) and numbered 1 to 123 (for AAT review number 2020/MC019787). The Registrar’s documents were copied to Ms Alves and Mr Alves. The tribunal made its decision on 2 November 2020.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Registration and Collection Act.

2. The issues which arise in this case are:

   ·      Did the pattern of care for the children change;

   ·      Do new care percentage determinations apply; and

   ·      What is the date of effect of the new care percentage determinations?

CONSIDERATION

Issue 1 – Did the pattern of care for the children change?

1. The legislation establishes a system for the assessment of the rate of child support payable in a child support case. In most cases a statutory formula is applied. The percentage of care for a parent of the child affects the annual rate of child support assessed and payable. A parent’s percentage of care is determined under sections 49 or 50 of the Assessment Act. Sections 49 and 50 require a new determination of a parent’s percentage of care for a child to be made in certain circumstances. Prior to making a new percentage of care determination under these provisions it is necessary to determine whether the existing care percentage determination can be revoked.

2. In determining the percentage of care to be applied for a parent in the administrative assessment of child support for a child, the decision maker (the tribunal in this review) is required to consider the actual, or likely, pattern of care that the parent will have in relation to the child during the care period. There is a temporal element in reviewing care percentage decisions having regard to the actual, or likely, pattern of care at the point in time of notification to the Agency. It is not appropriate, in undertaking that task, to assess care based on what happened after the original decision was made up to the time of the tribunal hearing. Evidence of the care for this period is not likely to be relevant, save to the extent that it may inform the actual, or likely, pattern of care as at the date of notification.

3. The “care period” is the period which the decision maker considers is appropriate having regard to all the circumstances of the case. Section 2.2.1 of the Agency’s online policy guide, the Child Support Guide (the Guide), states that a care period is generally a 12-month period from the day on which the actual care of a child began or changed. The tribunal is not bound by policy. However, in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 the Full Court of the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case the tribunal accepts that the policy in the Guide is consistent with the objects of the legislation and that it assists the tribunal in making determinations under the legislation in relation to the care provided by the parties for the children.

4. The tribunal finds that Ms Alves and Mr Alves are the separated parents of the children. Based on the Agency’s records, the tribunal finds that from 7 September 2018 percentages of care for the children of 100% for Ms Alves and 0% for Mr Alves were recorded as particulars of the administrative assessment of child support for the children. The percentages of care were applied in the administrative assessment with effect from 7 September 2018.

5. Ms Alves confirmed that she had the children in her care for 100% of the time until she required extensive medical treatment in April 2019 followed by a period of rehabilitation. Ms Alves also confirmed that the children were in Mr Alves’s care, full-time, while she underwent medical treatment and rehabilitation. Ms Alves disagreed that the period during which the children were in Mr Alves’s full-time care was as lengthy as Mr Alves claimed. She maintained that Mr Alves had the children in his care for 100% of the time from April 2019 until she returned to work in July 2019 and the children were in his care for approximately 70% of the time from then until 3 November 2019. The children were in her care for the remaining 30% of the time during that period. They returned to her full-time care from 3 November 2019.

6. Ms Alves told the tribunal that she and Mr Alves made a verbal agreement that the children would live with him during her medical treatment and rehabilitation. They agreed that Mr Alves would continue to pay child support to her for the children while they were living with him but that she would pay for their school fees. Ms Alves confirmed that all arrangements between her and Mr Alves made for the children’s care had always been made orally and that there are no court orders, parenting plans or other written agreements for the children’s care. Ms Alves questioned Mr Alves’s motives in waiting until June 2020 to contact the Agency about the change in care in April 2019. She maintained that this was contrary to what they had agreed. Ms Alves acknowledged that she had not contacted the Agency about the care change.

7. Mr Alves disputed that he and Ms Alves had made any agreement concerning the care of the children during Ms Alves’s medical treatment, whether orally or otherwise. Mr Alves confirmed that he and Ms Alves had always made arrangements for the children’s care orally. Mr Alves told the tribunal that the only matter that he and Ms Alves discussed was that Ms Alves was going to hospital. He knew from that, the children would be staying with him because there was an assumption that he would take them. Mr Alves told the tribunal that he never agreed to the children staying with him for a particular period of time. Mr Alves agreed that he did not notify the Agency prior to 22 June 2020 regarding the care change. This was because he had been going through a very difficult period and was reluctant to deal with the Agency. The reason why he contacted the Agency on 22 June 2020 was to clarify what had happened following the lodgement of his 2019 financial year tax return. He discussed the care change during that contact.

8. Based on the Agency’s records and the oral evidence of Mr Alves the tribunal finds that Mr Alves contacted the Agency on 22 June 2020 and advised that the children were in his care for 100% of the time from approximately 2 April 2019. Ms Alves consistently maintained that the care of the children changed from 6 April 2019, not from 2 April 2019. Mr Alves accepted this. Consistently with the evidence of Ms Alves and Mr Alves the tribunal finds that it was the expectation of Ms Alves and Mr Alves that the children would be in Mr Alves’s care for 100% of the time from 6 April 2019.

9. Based on the oral and documentary evidence the tribunal is satisfied that the appropriate care period is the 12-month care period that commenced on 6 April 2019. The tribunal is satisfied that the evidence demonstrates that the pattern of care for the children changed from 6 April 2019 and that the pattern of care for the children that was likely in the care period that commenced on 6 April 2019 was for Mr Alves to have the children in his care for 100% of the time and for Ms Alves to have no care.

Issue 2 – Do new care percentage determinations apply?

1. The provisions relating to the revocation of a determination of a person’s percentage of care are set out in subdivision C of Division 4 – Percentage of Care in Part 5 of the Assessment Act. Section 54F of the Assessment Act is relevant and provides for the mandatory revocation of an existing care percentage determination in specified situations.

2. The existing determinations of Ms Alves’s and Mr Alves’s percentages of care for the children when the notification of the change in care was made on 22 June 2020 were 100% for Ms Alves and 0% for Mr Alves. The tribunal is satisfied that the evidence establishes that the requirements for the revocation of the existing percentages of care under section 54F of the Assessment Act are met. It is common ground that the Registrar was notified on 22 June 2020 of the care change that occurred from 6 April 2019. As this was more than 28 days after the change of care day the date of effect of the revocations of the existing determinations is worked out in accordance with paragraph 54F(3)(b) of the Assessment Act.

3. As Ms Alves’s care of the children reduced and does not correspond with her existing percentage of care, the revocation of Ms Alves’s existing percentage of care of 100% takes effect at the end of 5 April 2019, being the end of the day before the change of care day (subparagraph 54F(3)(b)(ii) of the Assessment Act). As Mr Alves’s care of the children increased and does not correspond with his existing percentage of care, the revocation of Mr Alves’s existing percentage of care of 0% takes effect at the end of 21 June 2020, being the end of the day before the Registrar was notified that the care of the children did not correspond with the existing percentages of care (subparagraph 54F(3)(b)(i) of the Assessment Act).

4. The tribunal has determined that new percentage of care determinations are to be made under sections 49 and 50 of the Assessment Act to correspond with the pattern of care that Ms Alves and Mr Alves have had, or were likely to have, for the children for the care period commencing on 6 April 2019. The percentage of care determination of 0% for Ms Alves is made under section 49 of the Assessment Act and the percentage of care determination of 100% for Mr Alves is made under section 50 of the Assessment Act.

5. These are the same percentage of care determinations as those made by the objections officer.

Issue 3 – What is the date of effect of the new care percentage determinations?

1. Under section 54B of the Assessment Act the new percentage of care determinations apply in the administrative assessment of child support from the day that began immediately after the date when the previous determinations were revoked. These dates are 6 April 2019 in relation to the new percentage of care determination for Ms Alves and 22 June 2020 in relation to the new percentage of care determination for Mr Alves. However, in this case the legislative provisions that determine the date of effect of a decision varying or substituting a care percentage decision on review must be considered.

2. If an objection to a care percentage decision is lodged more than 28 days from notice of the decision being served, and the objection is allowed in part or in full in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the Registration and Collection Act). However, the Registrar may, if satisfied that there are special circumstances that prevented the person from lodging their objection within 28 days, make a determination under subsection 87AA(2) of the Registration and Collection Act, that subsection 87AA(1) applies as if the reference to 28 days were a reference to a longer period that the Registrar determines to be appropriate. A decision made under subsection 87AA(2) of the Registration and Collection Act is a separate decision to the care percentage decision in respect of which the objection is lodged and is separately reviewable by this tribunal.

3. Based on the Agency’s records the tribunal finds that notice was sent to Ms Alves on 24 June 2020 of the decision made on that date to make new percentages of care determinations for the children. The tribunal finds that Ms Alves lodged her objection on 31 July 2020. The tribunal is satisfied that Ms Alves’s objection was lodged more than 28 days after notice of the care percentage decision that was made on 24 June 2020 was served.

4. The objections officer determined to allow Ms Alves’s objection and substituted a new care percentage determination. The objections officer found that Ms Alves first contacted the Agency on 25 June 2020 to raise concerns about the decision and its impact on the administrative assessment of child support for the children. Ms Alves then contacted the Agency six further times regarding her concerns. She discussed her options regarding the impact of the care percentage decision and lodged her objection on 31 July 2020. The objections officer was satisfied that Ms Alves took reasonable steps to notify of her concerns and given the number of other child-support matters that she was dealing with, the objections officer found that she acted in a timely manner. The objections officer considered that Mr Alves would not be disadvantaged if it was accepted that special circumstances prevented Ms Alves from objecting earlier. Pursuant to subsection 87AA(2) the objections officer determined that there were special circumstances that prevented Ms Alves from lodging the objection within 28 days after notice of the care percentage decision was served and that subsection 87AA(1) applied as if the reference to the period of 28 days for the lodgement of Ms Alves’s objection were a reference to the period that commenced on 6 April 2019.

5. As already set out, Ms Alves applied for review of this determination. Mr Alves did not take issue with the determination. Based on the oral evidence Ms Alves gave and on the documentary evidence the tribunal accepted that Ms Alves contacted the Agency on 25 June 2020 after she was notified of the care percentage decision that was made on 24 June 2020. The tribunal accepted that Ms Alves discussed the impact of the care percentage decision and her options in relation to child support for the children in detail on several occasions following that contact but that she did not lodge an objection to the decision until 31 July 2020. The tribunal observed that the context of the contacts with Ms Alves was such that they could have been regarded as objections to the care percentage decision but that the Agency did not record them as objections. Based on the available evidence the tribunal agrees with the objections officer’s findings and the tribunal is satisfied that there were special circumstances that prevented Ms Alves from lodging her objection within 28 days after notice of the care percentage decision was served. The tribunal is further satisfied that the evidence demonstrates that Ms Alves did not rest on her rights and that the extension of the period for the lodgement of the objection as determined by the objections officer to the period that commenced on 6 April 2019 does not prejudice Mr Alves. The tribunal, therefore, concludes that the determination that the objections officer’s decision made under subsection 87AA(2) of the Registration and Collection Act is correct.

6. This means that the care percentage determinations made by the objections officer of 0% for Ms Alves and 100% for Mr Alves for the children for the care period that commenced on 6 April 2019 have effect and apply to the administrative assessment of child support for the children from 6 April 2019. For the reasons discussed above the tribunal has decided to affirm the care percentage determinations made by the objections officer. In accordance with section 43 of the Administrative Appeals Tribunal Act 1975 the date of effect of the tribunal’s decision to affirm the care percentage determinations made by the objections officer is 6 April 2019.

DECISION

The decisions under review are affirmed.