Brower and Donelan (Child support)

[2021] AATA 3686

Brower and Donelan (Child support) [2021] AATA 3686 (19 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021876

APPLICANT:  Ms Brower

OTHER PARTIES:  Child Support Registrar

Mr Donelan

TRIBUNAL: Member M Sutherland (Presiding)

Member M Kennedy

DECISION DATE:  19 August 2021

DECISION:

The Tribunal sets aside the decision under review and in substitution decides that the objection is allowed, so as to revoke the existing care percentage determination and make a new care percentage determination of 100 percent to Ms Brower and 0 percent to Mr Donelan from 11 October 2016.

There is a limitation on the effect of the Tribunal’s decision pursuant to section 95N of the Child Support (Registration and Collection) Act 1988, so that the favourable effect of this review does not apply until 2 July 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there were changes to the likely pattern of care – existing percentage of care determinations revoked and new determinations made - decisions under review set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decisions – late applications for review - whether there were special circumstances that prevented the applications for review being lodged in time - special circumstances do not exist - tribunal decides not 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 Ms Brower and for [their daughter] (born 2004), first notified to the Child Support Agency on 11 October 2016.

2. There has been a child support assessment in place since 2010. Mr Donelan is the parent liable to pay child support under the child support assessment.

3. Prior to 11 October 2016 the child support assessment reflected Ms Brower as having 74 percent care and Mr Donelan as having 26 percent care of [the child].

4. On 11 October 2016 Ms Brower notified the Child Support Agency of a change to the care arrangements stating that she provided 100 percent care and Mr Donelan 0 percent care of [the child].

5. On 11 October 2016 the Child Support Agency made the decision to reflect that Ms Brower provided 86 percent care of [the child] and Mr Donelan provided 14 percent care from that date.

6. On 15 October 2016 Ms Brower objected to this decision and on 11 January 2017 the Child Support Agency changed the decision finding that Ms Brower had 74 percent care and Mr Donelan 26 percent care of [the child] (the objection decision). This is the decision under review.

7. On 2 July 2021 Ms Brower applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 19 August 2021. Ms Brower gave evidence on affirmation by conference telephone. The Tribunal was unable to contact Mr Donelan. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter.

THE LAW

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the 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. A care percentage determination made by the Child Support Agency continues in effect unless and until it is revoked.

4. The Department 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. Upon revocation, a new care percentage determination must be made. Usually, 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.

6. The child support law regulates when a care determination will be revoked, and when a change to a care determination will effect a child support assessment in circumstances where there has been a delay in seeking review of a care determination decision.

ISSUES

1. The issues which arise in this case are whether care was no longer taking place in accordance with the existing care percentage determination (as at 11 October 2016), and whether the existing care percentage determination should be revoked; and if so what the new care percentage determination should be, and from what date should the new percentage of care determinations take effect.

CONSIDERATION

Evidence

1. Ms Brower said that she only lived with Mr Donelan for a short time until about 2005. She applied for child support in 2010. She and Mr Donelan had a verbal agreement that he could see their two daughters on weekends. The child support assessment made was that she had 74 percent care and Mr Donelan 26 percent care.

2. In June 2015 she moved to the Victorian border a long way from where Mr Donelan lived, and from that time [the child] saw him once for a day visit and spent 4 days with him over Christmas 2019. She only informed the Child Support Agency of the change of care in October 2016; she did this over the phone and explained that she had moved away in June 2015.

3. The Tribunal accepts Ms Brower’s evidence in relation to the care arrangements for [the child], noting that she was able to cogently place the change to the care arrangements in time by reference to her move to the Victorian border. The Tribunal finds that from June 2015, Mr Donelan was no longer having any pattern of care in respect of [the child], and Ms Brower had [the child] in her care essentially all of the time.

4. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. The Tribunal is satisfied, based on the evidence provided by Ms Brower, that a new pattern of care was established from 11 October 2016, the date when she made application to the Child Support Agency for a change of care determination. (The existing percentages of care in the assessment for [the child] were 86 percent care to Ms Brower and 14 percent care to Mr Donelan.)

5. Where there is a change to the existing pattern of care the Tribunal must determine whether section 54G of the Act applies. This provides for the revocation of an existing percentage of care if a parent is to have at least regular care, but despite the other parent making the child available, the parent has had no care or less than regular care (regular care means care that is at least 14 percent but less than 35 percent). Section 54G has special rules regarding its date of effect. The revocation of a care percentage determination can take effect for child support purposes from the day before a parent ceased regular care, provided the other parent notifies the Registrar within a period considered reasonable in the circumstances. This is materially different to the date of effect of the revocation of care determinations under section 54F, which must be made within 28 days for full effect to be given.

6. The Tribunal is satisfied that in this case section 54G of the Act does not apply as Ms Brower did not notify the Child Support Agency of the change of care within a reasonable time. Care changed in June 2015 and she only notified the Child Support Agency in October 2016.

7. The statutory provisions relevant to the revocation and making of care determinations have recently been the subject of reform. The new legislation applies in circumstances where the ‘change of care day’ is after either 23 May 2018 or 1 July 2018, or if the change of care day occurs before 1 July 2018 but the Registrar is notified, or otherwise becomes aware, of the change of care more than 26 weeks after 1 July 2018 (depending on the provision applied). In this case all relevant events occurred prior to 1 July 2018, and the reforms to the legislation do not apply. The Tribunal has applied the legislation in effect prior to 1 July 2018.

8. Section 54F of the Act applies and this provides that if the care of the child that is actually taking place does not correspond with the parents’ 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 a new percentage of care determination the day before notification, being 10 October 2016.

9. If the Child Support Agency is notified, or otherwise becomes aware, within 28 days after the change of care day for the responsible person that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child, the revocation takes effect the day before the change of care day: see paragraph 54F(3)(a) of the Act.

10. If the Child Support Agency is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

    ·      if the responsible person’s care of the child has increased the revocation takes place the day before the Child Support Agency is notified, or otherwise becomes aware, of that matter; or

    ·      if the responsible person’s care of the child has reduced the revocation takes place the day before the change of care day: see paragraph 54F(3)(b) of the Act.

11. The Tribunal finds that as section 54F of the Act is met, the previous care determinations should be revoked and replaced with the pattern of care taking place for [the child].

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Brower and Mr Donelan under section 50 of the Act.

2. For the reasons outlined above the Tribunal finds that Ms Brower provides 100 percent care and Mr Donelan provides 0 percent care of [the child]. This takes effect from the day after revocation, in the case of Ms Brower revocation occurred on 10 October 2016 and for Mr Donelan revocation occurred on 31 May 2015, see section 50 of the Act (subject to section 95N discussed below). The change in care determination means that Ms Brower will be deemed to have “Above major care” and Mr Donelan “Below regular care”, this will affect the cost percentage, see section 55 of the Act.

Date of effect of successful outcome of review

1. The child support law may limit the date of effect of any care percentage determination made on review where (relevantly) more than 28 days has elapsed since the outcome of the objection was notified.

2. The purpose of limiting the date of effect is that if a decision is made to extend the period to more than 28 days it prejudices the other parent, and in particular creates large arrears of child support.

3. The Tribunal must next consider the limitation on the date of effect of its review decision. If an application to this Tribunal in respect of a care percentage decision is not lodged within 28 days of the date the objection decision is notified and the Tribunal decides to either vary the objection decision or make a new decision, the effective date is the date on which the application for review was made (subsection 95N(1) of the Child Support (Registration and Collection) Act 1988 (the Registration Act)). The objection decision under review is dated 11 January 2017. Ms Brower lodged her application to this Tribunal on 2 July 2021. Ordinarily, this would be the date of effect of the Tribunal’s decision.

4. However, the Tribunal may, if there are special circumstances that prevented the application for review being made within the relevant period, make a determination under subsection 95N(2) that a longer period in which to lodge the application is appropriate.

5. Ms Brower was notified about the objection decision on 11 January 2017. In the covering letter to her from the Child Support Agency of the same date it is clearly stated that if she did not agree with the decision then she could ask the Tribunal to review it within 28 days from the date she received the letter. Ms Brower only sought review by the Tribunal on 2 July 2021.

6. The Registration Act does not define the term ‘special circumstances’. Chapter 4.1.8 of the Child Support Guide, in referring to special circumstances (although for the purposes of subsection 87AA(2)), 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 Services Australia that the decision was being contested or raised their concerns in other ways – for example, a complaint to Services Australia or the Ombudsman?

7. The Tribunal notes Ms Brower’s evidence that when she was advised of the decision that she had been granted 86 percent care, she lodged an objection. However, she did not pursue the objection vigorously as she was told by an officer that the difference between 86 percent care and 100 percent care would not lead to a change in the amount of maintenance Mr Donelan paid her. It was only in 2021 when she had difficulties with her tax assessments and needed to deal with the Child Support Agency to sort things out that she was informed by an officer that there was a difference in the maintenance payable between 100 percent care and 86 percent care. She was told by the officer that she should lodge an appeal with the Tribunal to rectify things which she did.

8. Ms Brower in her evidence said that an officer had told her that the percentage difference of care between 86 percent and 100 percent care would not affect the child support payments she stood to receive. This is an unusual statement for an officer to make. It could well have been that the officer meant that a change between 74 percent and 86 percent care would not affect the payments she stood to receive. The Tribunal is not satisfied that the reason given by Ms Brower for not appealing to the Tribunal within 28 days prevented her from doing so, on balance there is no special circumstance which would enable the Tribunal to extend the 28‑day time limit. The date of effect of the care determination is therefore 2 July 2021.

DECISION

The Tribunal sets aside the decision under review and in substitution decides that the objection is allowed, so as to revoke the existing care percentage determination and make a new care percentage determination of 100 percent to Ms Brower and 0 percent to Mr Donelan from 11 October 2016.

There is a limitation on the effect of the Tribunal’s decision pursuant to section 95N of the Child Support (Registration and Collection) Act 1988, so that the favourable effect of this review does not apply until 2 July 2021.