Bostick and Bostick (Child support)

[2022] AATA 2119

Bostick and Bostick (Child support) [2022] AATA 2119 (25 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023515

APPLICANT:  Ms Bostick

OTHER PARTIES:  Child Support Registrar

Mr Bostick

TRIBUNAL:Member E Kidston

DECISION DATE:  25 May 2022

DECISION:

(a)The Tribunal sets aside the decision under review and, in substitution, decides that care for the children is to be recorded as 60% to Ms Bostickand 40% to Mr Bostick from the commencement of the registration of the child support case.

(b)The Tribunal makes a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 23 November 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review set aside and substituted - date of effect of the tribunal’s decision – whether there were special circumstances that prevented the application for review being lodged in time - special circumstances exist - tribunal decides 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. This review is about the percentage of care determinations for Ms Bostick and Mr Bostick in respect of their children [Child 1] (born 2010) and [Child 2] (born 2013).

2. On 23 November 2021 Ms Bostick contacted the Child Support Agency (CSA) to register a new child support case and provided a copy of a Court Order made between the parties concerning care of the children dated [in] November 2021.

3. On 10 December 2021 the CSA made the decision to commence a child support assessment case and recorded the level of care for the children as 35% care to Mr Bostick and 65% care to Ms Bostick from 11 November 2021 with effect from the start of liability of 23 November 2021. Mr Bostick is the parent liable to pay child support under the assessment.

4. On 4 January 2022 Mr Bostick lodged an objection to the decision, stating that the new determination of care percentage had not been calculated correctly based on the allocation of care in the Court Order.

5. On 14 February 2022, the CSA allowed the objection, in part.  A determination was made that from the start of the child support case Ms Bostick had 56% care for the children and Mr Bostick had 44% care for the children.

6. On 21 March 2022 Ms Bostick applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the CSA’s decision as she disagreed with the CSA’s objections officer’s determination.

7. The hearing of the application was held by the Tribunal on 23 May 2022. Ms Bostick and Mr Bostick each spoke to the Tribunal by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend, as is customary.

8. In considering the application, the Tribunal took into account the oral evidence of Ms Bostick and Mr Bostick as well as the documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1).

RELEVANT LEGISLATION

1. The legislation relevant to this review is found principally in the Child Support (Assessment) Act 1989 (the Act). That legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Tribunal is not bound by government policy, such as the Guide. However, where policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration.[1]

   [1] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

3. Section 50 of the Act 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.” Section 50 reflects the idea that point-in-time care decisions are made on the basis of what has happened up until the original notification and what is likely to happen thereafter.

4. It is recognised that what is likely to happen may not eventuate, and when that is the case, a parent can notify the CSA and a new care determination can be made.

5. The “care period” will ordinarily be the period of 12 months from the date on which the actual care of a child began or changed. The same care arrangements will then be assumed to apply for the subsequent 12-month period, unless the CSA is otherwise advised and the requirements of the legislation are satisfied such that a new care decision is made. This is further explained in the Guide at 2.2.1.

6. The Guide also explains that there may be situations where conflicting information exists as to the care provided by the parents, and in that event, consideration will be given to the information provided and evidence obtained and whether there is some common expectation about future care to determine the pattern of care likely to occur from the relevant date.

ISSUES

1. As this matter concerns the determination of care percentage for the registration of a new child support case, the Tribunal is to determine the likely pattern of care at the time of registration and establish care percentages to be attributed to Ms Bostick and Mr Bostick from the start of the child support case.

2. During the hearing submissions were made regarding certain matters between the parties concerning a change in care in early 2022, notifications to the CSA, and upcoming legal proceedings to review the existing Court Order. As discussed at hearing, the Tribunal is required to consider the issues before it based on the request for a child support case registered in November 2021 and the application of the law regarding the determination of care percentage set by the CSA for the commencement of the child support case. However, in stating that, the Tribunal does not disregard that issues can arise when disputed care arrangements are under review and the possible difficulties in navigating the review process and subsequent notification of changes particularly when the parties are new to the child support legislative scheme.

CONSIDERATION

1. At the hearing Ms Bostick told the Tribunal that she contacted the CSA to record a new child support case and provided the Court Order. She stated that at the time of her notification to the CSA, she expected the care of the children to follow the arrangement set out in the Court Order which she understood, in speaking with the CSA officers, to be based on Mr Bostick having 5 nights of care over a fortnight which equates to 35%.

2. Ms Bostick said that she was new to the child support scheme and relied on the advice and information regarding allocation of care percentages provided to her from the CSA. She told the Tribunal that she agreed with the CSA’s initial care percentage determination as 65% to her and 35% to Mr Bostick but does not accept the objection decision to increase Mr Bostick’s percentage of care from 35% to 44%. Ms Bostick told the Tribunal that over the ensuing months Mr Bostick’s actual care was less than expected as Mr Bostick travelled abroad at the end of January 2022 (which was not taken into account in the Court Order) and the children did not want to spend as much time with him, such that she has had 100% care of the children since about March 2022. Ms Bostick said that an application is before the Federal Court to review the current Court Order as a pattern was emerging where the care did not follow the care arrangement set out in the Court Order and this, among other things, prompted her to contact the CSA in May 2022.

3. Ms Bostick also stated that she disputes the care calendar submitted by Mr Bostick to the CSA (folio 88 in Exhibit 1) as it is not an accurate record of the care Mr Bostick had of the children from November 2021 and, she disagrees with his interpretation of how the Jewish festivals are allocated in clause 9.7 of the Court Order, in that where there is a reference to “night” it is only for the children to celebrate the evening meals and does not mean “overnight stay”. Ms Bostick also disagreed with Mr Bostick’s assessment of care over a 24-month period.

4. Not dissimilarly, Mr Bostick told the Tribunal that he agreed with Ms Bostick’s evidence insofar as the intention for care of the children from 11 November 2021 was to follow the Court Order. Mr Bostick said that the reason for his objection was that he did not agree with the CSA’s initial calculation of care percentages as an accurate account of the care arrangement set out in the Court Order. On his interpretation of the Court Order, Mr Bostick considered the care percentage should have been set at more than 35%, and he provided a calendar to the CSA where he marked out the nights he anticipated to have care of the children. Mr Bostick confirmed that the care calendar in evidence (at folio 88) does not reflect actual care, only the care he was expecting to have under the Court Order.

5. Mr Bostick told the Tribunal that he considered the allocation of care under clause 9.7 of the Court Order for Jewish festivals where reference is made to “night” to mean: the children spending overnight in the relevant parent’s care. Mr Bostick said that in September 2021, before the Court Order was obtained, a Jewish festival was shared in that way, where he had the children for a celebration and the children stayed overnight with him.

6. Mr Bostick said that actual care followed the Court Order for a couple of months, where he had care of the children for 5 nights every fortnight and Ms Bostick had care for the first half of the school holidays and that his expectation was that his care would continue to follow the Court Order. Mr Bostick stated that he accepts the objection decision of 14 February 2022 and agrees with the CSA’s recorded care percentage of 44% to him from 11 November 2021.

7. At the hearing Mr Bostick acknowledged that he returned the children to Ms Bostick’s care in January 2022 and said that he missed out on about 6 nights of care under the Court Order because he decided to travel overseas. He also said that his care of the children has reduced in 2022.

8. Ultimately both Ms Bostick’s and Mr Bostick’s evidence at the hearing and as detailed in the Exhibit was that, at the point in time of Ms Bostick’s notification to the CSA to register a new child support case, the care of the children was to follow the care arrangements set out in the Court Order.

9. The Tribunal accepts the information provided by Ms Bostick that after a couple of months, care did not follow the Court Order and Mr Bostick had a lower amount of care. However, as explained to Ms Bostick during the hearing, often by the time an application to the Tribunal for review is heard, the majority of the care period will be in the past. The evidence provided to the Tribunal from the parties of care that has occurred since the original determination can prove or disprove the likelihood of a pattern of care. However, evidence of a change that was not anticipated at the time of the original decision is likely to constitute a subsequent change to the pattern of care, and so ought not be relevant to the decision before the Tribunal.

10. The statutory scheme under the legislation mandates the application of a percentage of care that reflects the actual care and expected likely care until a change in care event requires the revocation of that determination and the making of a new care percentage determination. The care percentage set by the CSA is not a warranty of perfection and is not intended to account for every single day. The general approach is to use the best evidence (here, the Court Order) to arrive at a reasonable forecast of a pattern, or likely pattern, of care, going forward from the date of notification.

11. The Tribunal is satisfied that at the time of Ms Bostick’s request to register on 23 November 2021, there was an intention for her and Mr Bostick to have care of the children in accordance with the Court Order and there was no reason that care of the children should not be set and calculated from that time in accordance with the Court Order, and so finds.

12. The Tribunal had regard to the Court Order in Exhibit 1. The relevant provisions concerning allocation of care between the parties specify that the children live with Ms Bostick and set out a detailed framework for when her care is suspended and the children are then in Mr Bostick’s care. It establishes a fortnightly recurring pattern of care during school terms and sets a different care framework for the school holidays and religious and special occasions – clauses 5, 6, 7 and 9 of the Court Order (from folio 30 of Exhibit 1).

13. In the Tribunal’s view, the Court Order does not set care over alternating years but instead increases Mr Bostick’s care to an extra night a fortnight during the school term from the start of Term 2 in 2023. As such, the Tribunal considers there is no reason to depart from the general principle to calculate a care period over 12 months. It is open for either parent to notify of an increased care to Mr Bostick pursuant to clause 5.2 of the Court Order, if it eventuates.

14. Section 54A of the Act provides that the actual care of a child that a person has had or is likely to have is worked out based on the numbers of nights that a child is in a person’s care. The reference to “night” in clause 9.7 of the Court Order for Jewish festivals was canvassed in the hearing, in particular clause 9.7.2 which states: “Rosh Hashanah – the first night with the Mother and the second night with the Father.” As Mr Bostick and Ms Bostick had differing opinions to the interpretation of “night” where mentioned in clause 9.7, the Tribunal had regard to the construction of the clause. In cases where there is ambiguity as to the meaning of a term and differing views of the parties’ intention, an approach commonly adopted by the Tribunal is to consider its ordinary meaning. The definition of “night” in the Oxford Dictionary is: “The period of darkness occurring between one day and the next; that part of a 24-hour period during which a place receives no light from the sun; the time between evening and morning.” From that definition, the Tribunal considers the proper construction of the term “night” where it is found in clause 9.7 of the Court Order, is to mean “overnight” care.

15. After reading the allocation of care provisions in the Court Order and taking into account the school term dates for 2021 and 2022[2] and religious holiday dates[3] for a 12-month care period from 11 November 2021 to 10 November 2022, the percentage of care applied by the CSA at first instance and then by the objections officer was not calculated correctly, and the proper construction of the care arrangement under the Court Order was expected to be as follows:

    [2] Term Dates for 2021, 2022 and 2023: [Source deleted]

    [3]

From 11 November 2021	(starting care calendar from week 1 of Term 4 in an odd year) 11,18,19,20,23,24,25,29	8 nights
December 2021	(first half holidays to Mother) 2,3,4,8,9	5 nights
January 2022	(not including overseas travel by father as not contemplated in the Order) 7,8,9,10,11,12,13,14,15,16,17,18,19,20,21,22, 23,24,25,26,27,28,29	23 nights
February 2022	3,4,5,9,10,24 (remove nights children overseas with the Mother as contemplated in the Order and +3 nights to the Father to make up)	9 nights
March 2022	3,4,5,9,10,17,18,19,23,24,31	11 nights
April 2022	1,2,6,7,8,9,10,11,12,13,14,16,17,18,19,20,21, 22,23,24,25,28,29,30 (includes all of Term 1 school holidays to Father) (includes one night to each parent for Pesach)	24 nights
May 2022	4,5,12,13,14,18,19,26,27,28	10 nights
June 2022	1,2,5,9,10,11,15,16,23,24,25,29 (includes one night to each parent for Shavuot)	12 nights
July 2022	21,22,23,27,28 (all of the Term 2 School holidays to Mother)	5 nights
August 2022	4,5,6,10,11,18,19,20,24,25	10 nights
September 2022	1,2,3,7,8,15,16,17,21,22,23,24,25,27,28,29,30 (includes one night to each parent for Rosh Hashanah)	17 nights
October 2022	1,4,10,13,14,15,19,20,27,28,29 (includes one night to each parent for Yom Kippur) (includes one night to each parent for Sukkot)	11 nights
Up to 10 November 2022	2,3,10	3 nights
TOTAL	148 nights

1. As the care arrangement under the Court Order as calculated by the Tribunal is 148 nights to Mr Bostick (40%) and 217 nights to Ms Bostick (60%), this establishes different care percentages that ought to be applied to the child support case.

2. It follows, that as the Tribunal has reached a different percentage to the objections officer, the decision under review will be set aside.

DATE OF APPLICATION

1. Where the child support case is new, the new care percentage determinations apply from the date on which the application for child support was lodged by a parent or the day from which the person is taken to have had the relevant dependent child(ren) (paragraph 54B(2)(a) of the Act).

2. In this case, as Ms Bostick applied with the CSA on 23 November 2021, a date which is within 28 days of the Court Order, therefore the care percentage determination applies from 23 November 2021.

LATE APPEAL TO TRIBUNAL – DATE OF EFFECT

1. The Tribunal must also consider the date of effect of the new care decision. Section 95N of the Child Support (Registration and Collection) Act 1988 determines the date of effect of a Tribunal decision to set aside a care percentage decision.

2. Ms Bostickapplied to the Tribunal on 21 March 2022 for a review of the objection decision made by the CSA on 14 February 2022. As her application was not within 28 days of receiving notice of the objection decision, the date of effect of any new decision by the Tribunal is the date she applied for review.

3. The Tribunal may extend the 28-day timeframe if there are special circumstances that prevented Ms Bostick from applying for a review within this period. While the Child Support (Registration and Collection) Act 1988 does not define special circumstances, the Guide at 4.1.8 provides some guidance and states the circumstances must be “sufficiently special for the applicant to receive the benefit of an extension” and provides some examples.

4. In discussing this matter at the hearing, Ms Bostick told the Tribunal her application to the Tribunal for a review of the objection decision was late due to the fact that she and the children travelled abroad on or about the date of the objection decision to attend her sister’s wedding in [Country 1]. Upon her return to Australia, it took some time to catch up on correspondence including the CSA’s objection notice and as she is new to the CSA process, she was not cognisant of the timeframe applying from the date the letter was sent. Ms BostickBoleyn considers she was prevented from requesting a further review within the applicable timeframe due to her personal circumstances contending they are special circumstances.

5. The Tribunal is satisfied the circumstances as described by Ms Bostick would have prevented her from requesting a review of the objection decision issued on 14 February 2022 within 28 days. Accordingly, the Tribunal will extend the timeframe under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 and the relevant date of effect for this decision is the commencement of the CSA’s registration of the child support case: 23 November 2021.

OTHER MATTERS

1. As already noted, the child support legislative scheme deals with any subsequent changes of care by requiring further notification to be made, requiring a fresh decision by the CSA.

2. To the point raised by Ms Bostick that earlier in 2022 the actual care of the children stopped following the Court Order, as already canvassed, the Tribunal regards this as a new event notifiable to the CSA for a new care determination.

3. The Tribunal notes that Ms Bostick said she notified the CSA of this change in mid-May 2022. As that date is after the date of the CSA’s documents in Exhibit 1, the Tribunal cannot determine whether the CSA has recorded a notification of change in care and it is open for either Mr Bostick or Ms Bostick to ensure that the CSA are acting on the new information regarding a change in care event where a formal care arrangement exists and reasonable action is taken by the parents.

DECISION

(a)The Tribunal sets aside the decision under review and, in substitution, decides that care for the children is to be recorded as 60% to Ms Bostick and 40% to Mr Bostick from the commencement of the registration of the child support case.

(b)The Tribunal makes a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 23 November 2021.