Brockle and Child Support Registrar (Child support)

Brockle and Child Support Registrar (Child support) [2022] AATA 3082 (12 July 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/PC023486
APPLICANT:  Mr Brockle
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Member J Prentice
DECISION DATE:  12 July 2022
DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

the existing care percentage determination of 100% to [Ms A] is revoked from 8 July 2021 and replaced with a new care percentage determination of 0% from 9 July 2021; and

the existing care percentage determination of 0% to Mr Brockle is revoked from 8 July 2021 and replaced with a new care percentage determination of 100% from 9 July 2021.

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 in this matter as if the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Mr Brockle’ application for review was made 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

CHILD SUPPORT – date of effect of the tribunal’s decision – late application for review - 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

Mr Brockle and [Ms A] are the parents of [Child 1] (born February 2013). This review is with respect to a decision by Services Australia – the Child Support Agency (CSA) - about the recorded care for [Child 1] in relation to a child support case which has been registered with the CSA since 15 February 2018.
The existing percentage of care determinations recorded by the CSA in the case in relation to the children was 86% for Mr Brockle and 14% for [Ms A] from 23 December 2019; when [Ms A] contacted the CSA on 12 July 2021 and advised a change of care from 9 July 2021 to 100% to [Ms A] and 0% to Mr Brockle.
On 19 October 2021 the CSA determined that the care had changed on 9 July 2021 and revoked the existing percentage of care determinations and determined that new percentage of care determinations be recorded as 100% for [Ms A] and 0% for Mr Brockle effective from 9 July 2021, the date of notification.
Mr Brockle lodged an objection with the CSA on 20 October 2021. On 2 December 2021, a CSA objection officer disallowed the objection.
On 16 March 2022 Mr Brockle lodged an application for review with the Administrative Appeals Tribunal (the Tribunal) stating that he disagreed with the CSA decision as [Ms A] had never had 100% care of [Child 1].
Mr Brockle spoke to the Tribunal by conference telephone at a hearing on 2 June 2022 and gave evidence on affirmation. [Ms A] was also a party to Mr Brockle’ application, and she was sent the hearing papers and the details of the scheduled hearing. However [Ms A] had indicated that she would not attend the hearing and did not participate. The Tribunal did attempt to call [Ms A] at the start of the hearing on a telephone number she had provided, however she did not answer the call or respond in any way. As [Ms A] failed to appear the Tribunal removed [Ms A] as a party pursuant to subparagraph 42A(2)(b) of the Administrative Appeals Tribunal Act 1975.
In considering the application, the Tribunal took into account the oral evidence of Mr Brockle and documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1).

ISSUE

The issue is whether the existing percentage of care determinations for [Child 1] from 9 July 2021 are to be revoked and new percentage of care determinations are to be made.

CONSIDERATION

The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection 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.

11. 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 (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).

The scheme of the child support legislation is that existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made and requires consideration of the likely pattern of care when a change is notified.
Where a parent has a pattern of care for a child, the child support legislation provides for the determination of 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, care decisions are made at a point in time based on what has happened up until the change in care is considered and what will likely be the care thereafter. What is likely to happen may not eventuate or may subsequently change and when that is the case, a parent can notify the CSA and a new percentage of care determination can be made. However, the legislative test at first instance and on review requires assessment of the pattern of care for the care period based upon what had happened until the date of notification and what is likely to happen thereafter.
Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[1] The relevant policy appears at 2.2.1 of the Child Support Guide, which includes the following:
What constitutes a change to the pattern of care will depend upon the individual circumstances of the case …
Not all changes in care will result in the calculation of a different care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.
The child support legislation provides for revoking of care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and the making of new care determinations to take account of a care change.

16.Any new percentage of care determinations take effect from the date that care changed or, if the Registrar is not notified within 28 days of care changing, then the date of the notification as regards the increased level of care. It follows that there is the possibility of differential dates of effect for the increased care percentage to one parent and the decreased care percentage to the other parent depending upon when the CSA is notified of the change.
17.The legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, so that a new percentage of care determination decision or decisions can then be considered and made if appropriate.
[1] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

Mr Brockle told the Tribunal that [Ms A] has a history of making false claims about her care of [Child 1]. In normal circumstances Mr Brockle responds with factual details to the CSA and the matter is resolved. However on this occasion he had lost his phone and had changed address and the CSA were unable to contact him; and he had not realised [Ms A] had made another false claim.
Mr Brockle informed the Tribunal that he has had 100% care of [Child 1] since 9 July 2021. He advised that [Child 1] spent four hours with [Ms A] on Mother’s Day 2022 but has spent every night in his care from then until now.
Mr Brockle noted that on 9 July 2021 [Ms A] had returned [Child 1] to his care. However because he had been evicted from his house and was in the process of sourcing new accommodation, he was staying with his mother ([Ms B]). In her statement to the CSA, [Ms A] advises that she did leave [Child 1] with [Ms B].
Mr Brockle told the Tribunal that some of the documents supplied by [Ms A] to the CSA are falsified and incorrect. The Tribunal notes that Mr Brockle provided written statements from third parties (including from [Child 1]’s teacher and doctor) which contradicted claims made by [Ms A].
The CSA’s records show that [Ms A] contacted the CSA on 4 August 2021 and advised that [Child 1] had been staying at his grandmother’s ([Ms B]’) whilst he was taking medication to assist with [a medical condition] before moving in with [Ms A] (page 15 of Exhibit 1).
The various third-party statements/documents provided to the CSA by Mr Brockle and [Ms A] relevant to the care of [Child 1] from July 2021 included as follows:
(a) Copy of what appears to be a text message from [Ms B] (page 16 of Exhibit 1) stating as follows (unedited):
This is to inform you that [Child 1] is temporarily living with me [Ms B] .His mother organized this after he tried to [deletion] his younger brother [deletion] whilst unmedicated. This happened on the 10^th of July 2021. This poses a risk to [deletion] safety and he is living here until it is sorted out, then to my knowledge he will be living with his mother.
He is attending year 3 at [deletion] primary school. His [m]other enrolled him and bought his booklist and paid his fees, I purchase his uniforms.
His father has not supported him financially and told me to go see his pediatrician.
No help at all in any form.
(b) Text messages dated 23 July 2021 between [Child 1]’s primary school and [Ms A] advising regarding [Child 1]’s belongings being ready to be picked up (pages 17 and 18 of Exhibit 1).
(c)   Receipts from [Ms A] for education material purchased for [Child 1] on 21 July 2021 (pages 17, 18, 24 and 25 of Exhibit 1).
(d) Letter dated 11 August 2021 from the Department of Education regarding [Child 1]’s enrolment at school confirming that he commenced at a certain primary school on 21 July 2021, that Mr Brockle is not on the contact list and that the contacts for [Child 1] are Ms [Ms B], [Ms A] and Mr [C] (page 32 of Exhibit 1).
(e) Letter from [Child 1]’s paediatrician stating that Mr Brockle attended an appointment with [Child 1] on 30 September 2021 (page 122 of Exhibit 1).
(f)    Letter from school dated 22 October 2021 (page 123 of Exhibit 1) stating that [Child 1] was enrolled at the school on 22 July 2021 by his grandmother [Ms B] with whom he resides.
(g) Signed letter dated 20 October 2021 (page 124 of Exhibit 1) from [Ms B] stating that Mr Brockle is living with her and that Mr Brockle has 100% care of [Child 1] and that she only acts as a babysitter.
(h) Letter dated 4 February 2022 from [an organisation] (page 165 of Exhibit 1) including as follows:
I can confirm that I know Mr Brockle . I have been advocating for him for housing and assisting with some other processes.
Mr Brockle … is the father of [Child 1] .. .and has had him in his care exclusively since July 2019.
Mr Brockle has received no payments for [Child 1] and there is no formal arrangement in place.
[Child 1]’s mother has been charged with fraud and will be serving a jail term commencing soon. Mr Brockle will need to be receiving the payment for his care of [Child 1] so he can meet his day to day needs. Without receiving payment Mr Brockle finds it difficult to do so including being able to afford housing. At the moment Mr Brockle is living with friends.
(i)    Letter dated 11 February 2022 from [Child 1]’s teacher (Page 170 of Exhibit 1) stating that she has been [Child 1]’s teacher for Terms 3 and 4 of 2021, that she only ever saw and communicated with his grandmother, [and] his dad who was living at [her] house and that she did not meet or communicate with [Child 1]’s mum.
(j)    Email from another teacher (received 15 February 2022) (page 171 of Exhibit 1) stating that she had known Mr Brockle and [Child 1] for three years and that Mr Brockle had been the exclusive caregiver of [Child 1] for that entire time.
(k)   Email from [a named individual] dated 15 March 2022 (page 174 of Exhibit 1) stating Mr Brockle and [Child 1] had been living with them since 14 February 2022 and paying rent with [Child 1] staying there every night and them not having seen [Child 1]’s mother.
(l)    Further signed (undated) letter from [Ms B] (page 175 of Exhibit 1) stating that Mr Brockle has had care and custody of [Child 1] for the whole time since July 2021 until the current date, March 2022 and that [Ms A] had had no care of [Child 1] in that time.
(m) Email from [another person] dated 16 March 2022 (page 177 of Exhibit 1) stating that she had known Mr Brockle for three years and lived with him and [Child 1] for a short time, had visited his mother’s home after July 2021 where he was living with his mother and [Child 1] and in that three years had only seen [Child 1] spend a handful of nights at his mother’s house with the rest of the time with Mr Brockle.
Mr Brockle claimed that [Ms A] keeps trying to change the care arrangements so she can claim more money from Centrelink; and because she used to work [with a government agency] she is familiar with how the system works and what she needs to do.
The Tribunal questioned Mr Brockle why he took so long to apply to the Tribunal. Mr Brockle said he was trying to put together all the evidence he would need to contradict the false information presented by [Ms A]. Mr Brockle also told the Tribunal that he was struggling with depression at the time; as well as moving accommodation.
Mr Brockle noted that he and [Child 1] stayed with his mother, [Ms B], from July 2021 to early February 2022, when they moved to independent accommodation. Mr Brockle reiterated that at no time did [Ms A] have overnight care of [Child 1].
Mr Brockle informed the Tribunal that his mother attempted to speak with the CSA to confirm what Mr Brockle had told them, but they would not talk to her.
In making their decision, the CSA noted that the statements from both parents disagree about what care arrangements occurred for [Child 1] and they provided conflicting evidence.
The Tribunal notes that the CSA initially spoke to Mr Brockle on 30 July 2021 when he disagreed with the care change advised by [Ms A], that [Child 1] was living with his paternal grandmother for a couple of weeks and that he was still financially responsible for him. On 6 August 2021, [Ms A] is recorded as advising the CSA that [Child 1] had remained in her care since 9 July 2021 because Mr Brockle was not at home when she went to drop [Child 1] to him following care by her but that it had been decided that [Child 1] would stay with Mr Brockle’ mother due to issues with another child at [Ms A]’s home; with the plan to be that [Child 1] would stay with [Ms A] once medication had assisted [Child 1]. She further advised that Mr Brockle was trying to source new accommodation with relatives after eviction from his home but that he did not speak to his mother; that she was making 100% of the decisions for [Child 1] even though he was staying with [Ms B] and that she was sending what money she could to cover costs. CSA was unsuccessful in their attempt to contact Mr Brockle for a response to these claims made by [Ms A] before they made their decision on 19 October 2021.
Mr Brockle told the Tribunal that [Ms A] was currently on trial for fraud charges. The Tribunal notes that the letter from [an organisation] also refers to [Ms A] being charged with fraud. [Ms A] has not chosen to participate in the hearing of this application. There is no objective evidence before the Tribunal in relation to any fraud charges against [Ms A] nor to what those charges may relate.
The CSA accepted evidence from [Ms A] claiming that Mr Brockle’ mother (Ms [Ms B]) had provided a statement advising [Child 1] was not in Mr Brockle’ care; yet they did not speak to [Ms B] direct to determine the veracity of [Ms A]’s claims. As noted by the CSA the various documents and statements provided to the CSA conflict. On the one hand [Ms A] has purportedly provided an email from [Ms B] and the Department of Education supporting her position that [Child 1] has been in her care since 9 July 2021. On the other hand, Mr Brockle has provided statements and documents as outlined to the contrary including, and in particular, signed letters from his mother. The Tribunal has had regard to all of the documents provided to the CSA but does not find any of the documents determinative on their own. The Tribunal also took into account Mr Brockle’ oral evidence at the hearing. Mr Brockle was able to articulate the circumstances relating to [Child 1]’s care in a logical and plausible manner and the Tribunal places significant weight on his evidence. The Tribunal also notes that [Ms B] contacted the CSA on 11 November 2021 (page 142 of Exhibit 1) advising that she had not written a letter for [Ms A] and that Mr Brockle and [Child 1] were living with her and that Mr Brockle had 100% care of [Child 1], that they do not see [Ms A] and that she ([Ms B]) is only a babysitter.
On the evidence provided and in the circumstances of the case, the Tribunal is satisfied that Mr Brockle has had 100% care of [Child 1] since 9 July 2021 such that the pre-existing percentage of care determinations are to be revoked and replaced by percentage of care determinations of 100% to Mr Brockle and 0% to [Ms A].
Having had regard to all of the evidence, the Tribunal is satisfied that [Ms A] was to have at least 14% care (regular care) of [Child 1] under the pre-existing percentage of care determinations made under section 50 of the Act and has had no overnight care of [Child 1] and that from 9 July 2021 Mr Brockle has had 100% care and [Ms A] has had 0% care of [Child 1]. It is not clear whether Mr Brockle made [Child 1] available for care by [Ms A]. If so the existing percentage of care determinations must be revoked under section 54G
Whether revoked under either section 54F or section 54G of the Act, as the change in care was notified on 12 July 2021, within 28 days after the Tribunal has found the change occurred on 9 July 2021, the increased percentage of care from 86% to 100% to Mr Brockle and the decreased percentage from 14% to 0% to [Ms A] both take effect from 9 July 2021 (the date of the care change).
There is no time limit on a person lodging an application for review with this Tribunal, of a decision on objection relating to the determination of a percentage of care. However, if an application to the Tribunal is made more than 28 days after the notice of the objection decision was served upon the person, and the Tribunal’s decision is to vary or substitute a decision on that objection, the Tribunal’s decision only takes effect from the day the application for review was made unless there are “special circumstances” that prevented the application from being made within that 28-day period, pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988.

In this case, the objection decision was made on 2 December 2021 and Mr Brockle applied to the Tribunal on 16 March 2022. Mr Brockle ’s evidence to the Tribunal was that he did not realise he had lodged his application to the Tribunal outside the objection period of 28 days and that he was trying to put together all the evidence he needed, that he was struggling with depression at the time and was also moving accommodation.

37.Whilst Mr Brockle did not apply to the Tribunal until 16 March 2022, the Tribunal notes that he contacted the CSA on 10 December 2021 and it was suggested that he start gathering further evidence to support his claim. Notification of a new change in care was also discussed, which Mr Brockle ultimately did. The Tribunal is satisfied that Mr Brockle was impacted by a number of challenges at the relevant time, including mental health and accommodation issues. Further, Mr Brockle was continuing to contact the CSA for changes to the care recorded and was gathering evidence as suggested to support his position. Having had regard to all matters the Tribunal is satisfied that there are special circumstances in Mr Brockle’ case pursuant to subsection 95N(2) of the Registration and Collection Act that prevented an application to the Tribunal being made within the prescribed period such that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Mr Brockle’ application for review was made within the required period.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of the children:

the existing care percentage determination of 100% to [Ms A] is revoked from 8 July 2021 and replaced with a new care percentage determination of 0% from 9 July 2021.; and

the existing care percentage determination of 0% to Mr Brockle is revoked from 8 July 2021 and replaced with a new care percentage determination of 100% from 9 July 2021.

[2022] AATA 3082

12 July 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Judicial Review

Statutory Construction