Broakes and Jonber (Child support)

[2022] AATA 2372

Broakes and Jonber (Child support) [2022] AATA 2372 (16 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023568

APPLICANT:  Mr Broakes

OTHER PARTIES:  Child Support Registrar

Miss Jonber

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  16 June 2022

DECISION:

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Broakes provides 60 per cent care of [the child] and Miss Jonber provides 40 per cent care from 1 July 2020 but with effect from 24 September 2021 for Mr Broakes and from 1 July 2020 for Miss Jonber.

(b) The Tribunal determines, pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, that subsection 95N(1) of that Act applies as if the reference to 28 days in that subsection was a reference to a longer period such that Mr Broakes’s application for review in this matter was lodged within that period.

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 – date of effect provisions – date of effect of the tribunal’s decision – late application for review – 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 a change to the percentage of care determinations for Mr Broakes and Miss Jonber in respect of [their child] (born July 2011).  There has been a child support assessment in place since 21 April 2015.

2. From 24 June 2015 the child support assessment reflected Mr Broakes as having 0 per cent care and Miss Jonber as having 100 per cent care of [the child].

3. On 24 September 2021 Mr Broakes notified the Child Support Agency of a change to the care arrangements stating that he provides 72 per cent care and Miss Jonber provides 28 per cent care of [the child] from 1 January 2021.

4. On 27 November 2021 the Child Support Agency made the decision to reflect that Mr Broakes provides 60 per cent care and Miss Jonber provides 40 per cent care of [the child] from 1 March 2021 but with effect from 24 September 2021 for Mr Broakes and from 1 March 2021 for Miss Jonber.

5. On 5 January 2022 Mr Broakes objected to this decision and on 25 February 2022 the Child Support Agency disallowed the objection (the objection decision).

6. On 27 March 2022 Mr Broakes applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 16 June 2022.  Mr Broakes and Miss Jonber gave evidence on affirmation by Microsoft Teams audio.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (221 pages).

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&C Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [the child] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Broakes told the Tribunal that care of [the child] was arranged informally based on verbal agreement between the parents.  Mr Broakes said, in effect, care varied in accordance with the roster Miss Jonber was working and was between three nights and five nights a week.

2. Mr Broakes said he believed his level of care changed around 25 August 2018 but he was not certain of the exact date.  Mr Broakes said he initially told the Child Support Agency the pattern of care changed from 1 January 2021 because he had no evidence to show that it was from an earlier date.  He said he had subsequently been able to gather more evidence from third parties which supported the amount of care he was having of [the child].

3. The Tribunal notes in evidence from the Child Support Agency statutory declarations provided by [Mr A], [Ms B], [Ms C], [Mr D] and [Ms E].  The statutory declarations from [Mr A], [Ms B] and [Ms C] are dated 2 November 2021 and the statutory declarations from [Mr D] and [Ms E] are dated 3 November 2021.  The statutory declarations confirm Mr Broakes has care of [the child] for three to five days per week, however, none provide a specific date from when this pattern of care commenced.  The Tribunal further notes in evidence a series of text message exchanges between the parents relating to the care of [the child].  These text messages do not confirm the date Mr Broakes commenced having care of three to five nights a week.

4. Miss Jonber told the Tribunal that she agreed Mr Broakes was providing care of [the child] but said his care was around 60 per cent care at the most.  Miss Jonber said this level of care was based on her work roster at the time.  Miss Jonber pointed out that care had since changed again based on a parenting plan the parents had recently agreed upon.

5. Miss Jonber said she believed that Mr Broakes began having 60 per cent care in mid-2020.  Miss Jonber pointed out that Mr Broakes commenced having some irregular contact with [the child] in 2018 but definitely did not have 60 per cent care until at least two years later.  She said Mr Broakes was working in 2018 and was unable to have more care.  Miss Jonber said she thought she had contacted the Child Support Agency to advise that care had changed from around mid-2020 rather than a later date.

6. Miss Jonber has argued that Mr Broakes has care of [the child] of approximately 60 per cent based on her work roster at the time.  Mr Broakes did not dispute this level of care.

7. The Act requires the primary decision maker to assess the actual or likely pattern of care, by reference to an appropriate care period, to establish whether or not the existing care determinations should be revoked and new determinations made.  The task of the Tribunal on review is the same.  Mr Broakes believes his care changed from a point around 25 August 2018.  The statutory declarations he provided to the Child Support Agency are inconclusive and provide no clarity around when the pattern of care for [the child] may have changed.  Miss Jonber argues that care changed from around mid-2020 in accordance with her work roster.

8. The Tribunal is satisfied, based on the evidence provided, that care of [the child] changed from 1 July 2020 with Mr Broakes providing 60 per cent care and Miss Jonber providing 40 per cent care from this date.  This is the point of agreement between the parents.

9. The existing percentages of care reflected in the assessment for [the child] were 0 per cent care to Mr Broakes and 100 per cent care to Miss Jonber. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

10. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

11. The Tribunal finds that Mr Broakes notified the Child Support Agency of the change in care on 24 September 2021 which is more than 28 days after the change occurred on 1 July 2020. According to paragraph 54F(3)(b) of the Act, the existing care determinations are therefore revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Broakes and Miss Jonber under section 50 of the Act.

2. The Tribunal finds that Mr Broakes provides 60 per cent care of [the child] from 24 September 2021 and Miss Jonber provides 40 per cent care from 1 July 2020.

Date of effect of new care percentage determinations

1. 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. Mr Broakes applied to the Tribunal on 27 March 2022 for a review of the objection decision made by the Child Support Agency on 25 February 2022.  The Tribunal is satisfied Mr Broakes was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 25 February 2022.  Given his application to the Tribunal was not within 28 days of receiving notice of this objection decision, the date of effect of any new decision by the Tribunal is the date he applied for review.

3. The Tribunal may extend the 28 days if there are special circumstances that prevented Mr Broakes from applying for review within this period. While the R&C Act does not define special circumstances, the ‘Child Support Guide’ at 4.1.8 provides some clarification. It states the circumstances must be “sufficiently special for the applicant to receive the benefit of an extension”.

4. Mr Broakes told the Tribunal he was uncertain how to deal with the outcome of the objection decision particularly as the Child Support Agency had also disallowed an earlier care matter he had objected to.  Mr Broakes explained that he sought advice through legal aid to understand the options available to him and then submitted his appeal to the Tribunal.  Mr Broakes said it took some time for him to receive this legal advice.  Miss Jonber said she had no comment to make in relation to the application for review made by Mr Broakes.

5. Mr Broakes was approximately two days late in seeking a review of the objection decision by the Tribunal.  The Tribunal accepts it may have taken Mr Broakes some time to receive advice from legal aid given the resource constraints on such services and this would explain the short delay in his application for review.

6. The Tribunal finds there were special circumstances preventing Mr Broakes from applying for review within the timeframe prescribed.  Accordingly, the Tribunal will extend the 28-day period and its decision is effective from 24 September 2021 for Mr Broakes and from 1 July 2020 for Miss Jonber.

7. On 5 January 2022 Mr Broakes objected to the original care decision made by the Child Support Agency. His objection was disallowed. It appears, according to the evidence provided, that Mr Broakes submitted his objection outside the required timeframe. As this decision made by the Tribunal will apply in substitution of the objection decision made by the Child Support Agency the date of effect of the Tribunal decision is in accordance with subsection 87AA(1) of the R&C Act. The Child Support Agency may, under certain circumstances, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days was a reference to such longer period as determined to be appropriate. To do so requires the Child Support Agency to make an original decision which the Tribunal is unable to make in the current proceedings.

DECISION

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Broakes provides 60 per cent care of [the child] and Miss Jonber provides 40 per cent care from 1 July 2020 but with effect from 24 September 2021 for Mr Broakes and from 1 July 2020 for Miss Jonber.

(b) The Tribunal determines, pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, that subsection 95N(1) of that Act applies as if the reference to 28 days in that subsection was a reference to a longer period such that Mr Broakes’s application for review in this matter was lodged within that period.