Bolton and Child Support Registrar (Child support)

[2022] AATA 315

Bolton and Child Support Registrar (Child support) [2022] AATA 315 (20 January 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022373

APPLICANT:  Mrs Bolton

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S De Bono

DECISION DATE:  20 January 2022

DECISION:

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

• that for the period from 28 August 2017, Mrs Bolton had 90% care of [Child 1] and [Mr A] had 10% care of [Child 1];

• to make a determination under subsection 43(6) of the Administrative Appeals Tribunal Act 1975 with the consequence that the date of effect of the tribunal’s decision is 13 June 2021 (when Mrs Bolton lodged her objection).

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 – date of effect provisions – whether there were special circumstances – no 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 removed 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. The matter to be determined by the tribunal is whether the existing determination of care should be revoked and a new care determination made.

2. Mrs Bolton and [Mr A] are the separated parents of [Child 1]. A child support assessment has been in place since 7 December 2011. [Mr A] is the parent liable to pay child support. On 14 June 2016 a care determination was made that Mrs Bolton had 93% care (339 nights) and [Mr A] had 7% care (26 nights) of care for [Child 1]. On 28 August 2017 a decision was made to accept the care of [Child 1] as 80% to Mrs Bolton and 20% to [Mr A], notified by [Mr A]. It seems that Mrs Bolton notified Services Australia (Child Support) that [Mr A] did not have a regular pattern of care of two nights a week on weekends after three occasions of care. However, Child Support made the decision that the care remained as 80% to Mrs Bolton and 20% to [Mr A] from that time.

3. On 13 June 2021 Mrs Bolton lodged an objection to record the care of [Child 1] as 80% to her and 20% to [Mr A] from 28 August 2017. On 24 August 2021 an objections officer made the decision not to allow Mrs Bolton’s objection to the decision and the care remained the same.

4. On 22 September 2021 Mrs Bolton applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. On 20 January 2022 Mrs Bolton gave evidence under affirmation via conference telephone. The tribunal had before it a bundle of documents (357 pages – referred to as the hearing papers) which had been sent to Mrs Bolton prior to the hearing. [Mr A] elected not to participate in the hearing and was removed as the second party to the review. Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

ISSUES

1. The issues for the tribunal to determine are:

   ·      Should the existing care percentages be revoked? If so,

   ·      From what date should the existing care percentages be revoked?

   ·      What is the correct level of care to be attributed to the parents? And

   ·      What is the effective date of the new care determinations?

LAW AND CONSIDERATION

1. The law relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

2. The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

3. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Child Support’s policy in this regard, as set out in chapter 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the care of a child began or changed, and the same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

4. Sections 49 and 50 of the Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the children before a revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.

5. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections of the Act reflect the idea that Child Support makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.

6. The tribunal’s task on review is to stand in the shoes of the original decision maker. In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support. It is not appropriate in undertaking that task to assess care based on what happened from initial notification to Child Support up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to Child Support. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to Child Support – so that a new primary care percentage decision can be considered and made if appropriate.

7. The term “pattern of care” is not defined in the legislation. The tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.

Issue 1 – Should the existing care percentages be revoked?

1. Documents before the tribunal confirm that [Mr A] notified Child Support on 21 August 2017 that his care of [Child 1] had increased from the previous care determination and said he would have care of [Child 1] fortnightly every Friday and Saturday nights. During this phone call [Mr A] said that [Child 1] would be in his care for 37 weekends and he would be away for 15 weekends. Child support determined that [Mr A] would have 74 nights of care a year which works out to be a 20% care determination.

2. There are no parenting orders or parenting plans in place governing the pattern of care of [Child 1] between Mrs Bolton and [Mr A]. Mrs Bolton told the tribunal that [Mr A] has never had 20% care of [Child 1] from 21 August 2017 and when she has retrospectively added up the nights of care that [Mr A] has had the care of [Child 1] that his care has been less than 14% care or less than 51 nights of care a year.

3. Mrs Bolton said she has never agreed that [Mr A] has had 20% care of [Child 1] and even after [Mr A] notified Child Support of the change of care Mrs Bolton said [Mr A]’s care of [Child 1] has always been less than regular care (that is 14% care). Mrs Bolton said [Mr A]’s care calendars are not correct and she said as far as she was able to, she based her care calendars on text messages between herself and [Mr A]. Mrs Bolton said more recently [Mr A] has been confirming what nights he would have [Child 1] on a Wednesday before the weekend he plans to have care of [Child 1]. Mrs Bolton said [Mr A] is a [Occupation 1] and from 2017 he was away approximately 15 weekends for work. This is consistent with [Mr A]’s evidence to the Department when the notification occurred in August 2017. Mrs Bolton said this changed in 2020 and 2021 due to COVID-19. [Mr A]’s [calendars] from 2017 to 2021 were before the tribunal.

4. Mrs Bolton said in reviewing the care that has actually occurred in respect of [Child 1] by [Mr A] it is Mrs Bolton’s view that [Mr A] has never had more than 51 nights of care for [Child 1] in any year since 21 August 2017. Mrs Bolton said she only had text messages confirming care arrangements from 22 September 2017 but even then, there were nights of care which were [Mr A]’s nights of care, when he did not have [Child 1] for either one night or two nights.

5. The tribunal notes that text messages between [Mr A] and Mrs Bolton on 21 July 2017[1] indicate the first trial of a two-night stay with [Mr A] commenced. On Wednesday 23 August 2017 a text message discussion between Mrs Bolton and [Mr A] confirmed that [Child 1] would stay on the weekend of 25 August 2017 and 26 August 2017. However, Mrs Bolton did not agree that this pattern of care continued and stated that [Mr A] was only having one night of care a week after this. Text messages in the hearing papers for this period show that [Mr A] did not always have care of [Child 1] for two nights a fortnight[2] and from September 2017 show that the care fluctuated. It is evident from Mrs Bolton’s care calendars that [Mr A] did not have fortnightly care for [Child 1] in October through to December 2017.[3]

   [1] Page 49 of the hearing papers.

   [2] Page 190 of the hearing papers.

   [3] Page 183 of the hearing papers.

6. Mrs Bolton’s care calendar for 2018, which has been populated following review of the text messages between Mrs Bolton and [Mr A], shows that [Mr A] had [Child 1] for 35 nights. The pattern of care from 12 January 2018 to 18 August 2018 does show that [Mr A] had the care of [Child 1] for two nights on a weekend and that there is a pattern of care for a period. However, there are periods when [Mr A] does not have [Child 1] for two nights of care every second weekend and the total number of nights for the year that [Mr A] actually had care adds up to 35 nights of care for the year.[4]

   [4] Page 184 of the hearing papers.

7. In 2019 text messages between Mrs Bolton and [Mr A] show that there are variations to the pattern of care and the total number of nights that [Child 1] stayed overnight with [Mr A] was 37 nights for that year.[5]

   [5] Page 185 of hearing papers.

8. In 2020 text messages between Mrs Bolton and [Mr A] show that he had 37 nights of care of [Child 1].[6] The 2021 care calendar is not complete but shows that the month of June 2020 was the only month that [Child 1] stayed with [Mr A] more often than every second weekend on a Friday and Saturday night, otherwise the nights of care [Mr A] had [Child 1] fluctuated.

   [6] Page 186 of the hearing papers.

9. The tribunal accepts that [Mr A] has intentions of having [Child 1] every second weekend on a Friday and Saturday night and it is his belief that this is the pattern of care however, the actual care occurring is less than 74 nights of care a year and this has been the case from the new care determination made on 28 August 2017.

10. The existing care determination was in accordance with section 50 of the Act. Section 49 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied the person has had, or is likely to have, no pattern of care during the period. In this case the tribunal must consider whether [Mr A] or Mrs Bolton had no pattern of care of [Child 1].

11. Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, its states that an existing care determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child.

12. In this case the tribunal has determined that the care determination was made under section 50 of the Act from 14 June 2016 and that Mrs Bolton had 93% care (339 nights) and [Mr A] had 7% care (26 nights) of [Child 1]. Therefore, paragraph 54F(1)(a) of the Act is satisfied. The tribunal further finds, based on Mrs Bolton’s evidence to the tribunal, that [Mr A]’s care from 28 August 2017 was 10% for [Child 1] and Mrs Bolton had 90% care of [Child 1] from this date.

13. It is on this basis that the tribunal is satisfied based on the evidence before it that the care determination of 93% care to Mrs Bolton and 7% care to [Mr A] should be revoked and a new care determination made. The tribunal revokes the existing care determination in accordance with paragraph 50(1)(b) of the Act. 

Issue 2 – What is the correct level of care to be attributed to the parents and what is the date of effect of the new care determination?

1. Having revoked the existing care determinations the tribunal must make a new care determination in respect of [Child 1]. As the tribunal has found, based on the discussions in the proceeding paragraphs, Mrs Bolton care of [Child 1] was 90%  and [Mr A]’s care of [Child 1] was 10%. The tribunal must also consider the date of effect of the new care determination.

2. The tribunal also notes that the objection was lodged outside the 28-day time period for lodging an objection to a decision of Child Support. Where an objection to a care percentage decision is lodged outside the time frame and the objection was disallowed, the date of effect of the objection decision is according to subsection 87AA(1) of the Registration Act and therefore subsection 87AA(2) of the Registration Act has no application. However, on review by the tribunal, if the decision is changed, the tribunal has to consider the implication of the late lodgement of the objection. As no decision was made under subsection 87AA(2) of the Registration Act, the tribunal is unable to consider the date of effect and whether the date of effect of any such decision would require the consideration of the circumstances which prevented Mrs Bolton from objecting to the decision within 28 days of Child Support’s original decision.

3. Subsection 43(6) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) does permit the tribunal to specify a date from which its decision should take effect. As the objection decision did not make any changes to the original decision, the date of effect would have been the date of effect of the original decision. The tribunal has set aside this decision and substituted its own decision. The tribunal has therefore considered the issue of the late lodgement of the objection by Mrs Bolton and the date of effect of the tribunal’s decision.

4. Where the objection was lodged outside the 28 days, the Registrar could have only specified the date of lodgement of the objection as the date of effect of the decision under section 87AA of the Registration Act if the Registrar was to allow or partly allow the objection unless there were special circumstances that prevented the objection to be lodged in time. Therefore, while the tribunal cannot apply the provisions in section 87AA to determine the date of effect, it can have regard to them when specifying the date of effect under subsection 43(6) of the AAT Act.

5. The Registration Act does not define the term ‘special circumstances’. The Explanatory Memorandum (EM) to the bill for the Amending Act states that: ‘The discretion to extend the period beyond 28 (or 90) days in special circumstances is intended to enable some flexibility for unusual cases’.  The EM does not provide any assistance in determining what constitutes an ‘unusual case’.  Chapter 4.1.8 of the Child Support Guide, referring to special circumstances, 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 of special circumstances 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.

   If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (section 87AA(2)). The Registrar will consider if:

   - the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?

   - the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to the department that the decision was being contested or raised their concerns in other ways e.g. a complaint to the department or the Ombudsman.

6. There is nothing before the tribunal which indicates that there were any circumstances which prevented Mrs Bolton from lodging an objection to the decision prior to 13 June 2021. Mrs Bolton disputed the care had changed when [Mr A] notified of the care change in 2017. However, Child Support accepted there had been a care change at that time and made a new care determination. Mrs Bolton said she has not agreed with the care change at that time but did not apply for a review then because [Mr A] was adamant that he would have the care of [Child 1] for two nights every fortnight, but this has not occurred. No other information was provided as to the delay in lodging an objection with Child Support. Accordingly, as the tribunal is not satisfied that there are any special circumstances which prevented the lodgement of an objection prior to 13 June 2021, the tribunal has determined under subsection 43(6) of the AAT Act that the date of effect of the tribunal’s decision is 13 June 2021.

DECISION

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

• that for the period from 28 August 2017, Mrs Bolton had 90% care of [Child 1] and [Mr A] had 10% care of [Child 1];

• to make a determination under subsection 43(6) of the Administrative Appeals Tribunal Act 1975 with the consequence that the date of effect of the tribunal’s decision is 13 June 2021 (when Mrs Bolton lodged her objection).