Aveyard and Venables (Child support)

[2021] AATA 2755

Aveyard and Venables (Child support) [2021] AATA 2755 (16 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/BC021256

APPLICANT:  Mr Aveyard

OTHER PARTIES:  Child Support Registrar

Ms Venables

TRIBUNAL:Member S Hoffman

DECISION DATE:  16 June 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides as follows:

• Mr Aveyard and Ms Venables each provided 50% of the care of [Child 1] and [Child 2] from 21 June 2017.

• The date of effect of this decision is 16 April 2021.

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 – no special circumstances exist that prevented the application for review being lodged in time – 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

1. Mr Aveyard and Ms Venables are the parents of [Child 1] and [Child 2]. The case was first registered with the Department of Human Services (now Services Australia) – Child Support (the CSA) on 21 June 2017. The CSA has not been involved in the collection of child support.

2. On 7 July 2017, a CSA officer decided that from 21 June 2017, the care of the children was shared equally between the parents. This was reflected in CSA records as Mr Aveyard providing 51% of the children’s care and Ms Venables providing 49% care (the original decision).

3. On 10 October 2018, Ms Venables contacted the CSA to advise that there had been a change of care. This was taken to be an objection to the original decision, with the objection being lodged on 19 October 2018.

4. On 23 January 2019, a CSA objections officer decided to set aside the original decision and replace it with a decision that from 21 June 2017, Mr Aveyard provided 40% of the children’s care and Ms Venables provided 60% of their care (the objection decision).

5. The objections officer did not find that there were special circumstances that prevented Ms Venables from lodging her objection within the prescribed timeframe of 28 days from being notified of the original decision. The date of effect of the change to their respective care percentages applied from 19 October 2018.

6. On 16 April 2021, Mr Aveyard lodged an application for review by this tribunal. The matter was heard on 16 June 2021. Both parents attended via conference telephone. The tribunal had before it a bundle of documents provided by the CSA (numbered 1 to 252), copies of which were given to the parties before the hearing.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R and C Act).

2. The central issues which arise in this case are as follows:

   ·     What care was each parent likely to provide when the case started on 21 June 2017?

·     What is the date of effect of the tribunal’s decision?

CONSIDERATION

What care was each parent likely to provide when the case started on 21 June 2017?

1. At the time the child support case was registered, section 50 of the Act required the CSA to determine a person’s percentage of care during a care period, if the CSA was satisfied that the person has had, or was likely to have, a pattern of care during the care period. The percentage of care so determined had to be a percentage that corresponded with the actual care of the child that the CSA was satisfied that the responsible person had, or was likely to have, during the care period.

2. Broadly speaking, sections 54F and 54G of the Act provided for the changing of care determinations where there was a change in the parents’ care of the child or children.

3. The legislative test for this review is, therefore, what percentage of care was being provided, or was likely to be provided, by each parent when the case was registered on 21 June 2017.

4. It is of course possible that what was expected to happen from that time going forward did not eventuate, in which case a parent could notify the CSA accordingly and a new care determination would be made.

5. The parents were each party to a binding child support agreement dated 4 May 2017. It set out that the care of the children would be shared equally between them, and also that neither parent would pay child support to the other.

6. The parents confirmed at the hearing that this was their expectation at the time the case was registered on 21 June 2017. This seems reasonable given the binding child support agreement was signed on 4 May 2017, and the case was registered with the CSA about seven weeks later.

7. The parents also agreed that over time, largely because of Mr Aveyard’s work, Ms Venables provided more care than him.

8. Ms Venables contacted the CSA on 10 October 2018 to notify a change in care. This was treated as an objection to the original decision made on 7 July 2017.

9. According to the record of a conversation between a CSA officer and Ms Venables on 19 October 2018, Ms Venables said that the agreement that the care was 50/50 had never been adhered to.[1] For that reason, the CSA officer decided that the notification by Ms Venables should be treated as an objection to the original decision rather than as a change in care.

   [1] Page 78 of the CSA documents

10. The tribunal notes that in the objection decision, under the heading Reasons for the Decision, the first paragraph starts “Ms Venables has objected …” and the second paragraph starts “When considering a new change in care arrangements … if there has been a change to the pattern of care …”. These statements are somewhat contradictory.

11. Given the parents’ expectations regarding the care of the children when the case was registered; that there was a binding child support agreement that had been recently signed by them; and that Ms Venables’s contact with the CSA about the care percentages was more than 15 months after the original decision, the tribunal considers it would have been appropriate to treat the October 2018 contact as a change in care notification which appears to have been the initial response by the CSA.

12. However, as the CSA treated it as an objection to the original decision, the tribunal has to conduct its review on that basis.

13. At the hearing, the parents were in agreement that they expected the care would be 50/50 in accordance with the binding child support agreement, and that was the case for some time although it later changed. The tribunal is satisfied, therefore, that the original decision should not be varied or set aside as it reflected what the parents thought was likely to happen with the children’s care at the time the original decision was made.

14. The tribunal finds that the CSA records are to reflect that the parents shared the care of the children equally from 21 June 2017.

What is the date of effect of the tribunal’s decision?

1. Section 95N of the R and C Act is about the date of effect of a tribunal decision to do with care percentages. Relevantly, if the tribunal varies or sets aside the objection decision, and the application for review by the tribunal was made more than 28 days after the notice of the objection decision was given to the person, then the date of effect of the tribunal’s decision is the date when the application for review was made.

2. If there were special circumstances that prevented a person from lodging their application for review within the prescribed timeframe, the tribunal can decide on a different timeframe to 28 days, as it considers appropriate.

3. Mr Aveyard said that he sought review of the CSA objection decision as it created a family tax benefit (FTB) debt for him which was raised by Centrelink. He said the debt amount was about $4,000 and covered a period going back to 2017. He said that because of COVID‑19, Centrelink delayed raising debts which was why he sought a review when he did and not earlier.

4. This does not explain why Mr Aveyard did not lodge an application for review within 28 days of being notified of the objection decision which was made on 23 January 2019; his application for review was made more than two years later.

5. Mr Aveyard said that he did not know he was supposed to do that. The tribunal notes that the letter sent to him on 23 January 2019 notifying him of the objection decision set out information about his appeal rights.

6. The tribunal observes, however, that as Mr Aveyard and Ms Venables had an agreement not to pay each other child support, the change in care percentages did not impact him at the time. It is understandable if he did not realise the objection decision would affect his FTB entitlement, and that a debt would be raised years later as a result.

7. It is, therefore, understandable why Mr Aveyard did not lodge an application for review of the objection decision at the time. However, that is different to him being prevented from lodging an application for review in early 2019. There was nothing, in the tribunal’s view, that prevented him from lodging an application for review of the objection decision. Rather, he failed to pursue that option because he did not see any need to do so.

8. The tribunal finds that there were no special circumstances that prevented Mr Aveyard from lodging his application for review within the prescribed timeframe. It determines, therefore, that the date of effect of its decision is when he lodged his application for review, which was on 16 April 2021.

9. The tribunal understands that Centrelink is not constrained by the date of effect of decisions made under child support legislation and will apply the care percentages as determined by the tribunal from the date that those care percentages applied; that is, 21 June 2017.

10. It is, of course, open to Mr Aveyard to follow up with Centrelink the effect this decision will have on the FTB debt raised by Centrelink.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides as follows:

• Mr Aveyard and Ms Venables each provided 50% of the care of [Child 1] and [Child 2] from 21 June 2017.

• The date of effect of this decision is 16 April 2021.