Buchanan and Buchanan (Child support)

[2020] AATA 5839

Buchanan and Buchanan (Child support) [2020] AATA 5839 (14 December 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC019769

APPLICANT:  Ms Buchanan

OTHER PARTIES:  Child Support Registrar

Mr Buchanan

TRIBUNAL:Member M Martellotta

DECISION DATE:  14 December 2020

DECISION:

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

a)The care determination to be applied as a result of Ms Buchanan’s application for an administrative assessment of child support as lodged on 11 July 2019 is that Ms Buchanan and Mr Buchanan each have 50% care of [the child].

b)The tribunal declines to make a determination pursuant to subsection 95N(2) of the Child Support (Registration and Collection Act) 1988 (the RC Act). The date of effect of this decision is 1 September 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the pattern of care from the date of the application for administrative assessment – decision 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 matter concerns the level of care that Services Australia[1] (the Agency) recorded with respect to Ms and Mr Buchanan’s [daughter] (the child).[2]

   [1] At the time known as Department of Human Services

   [2] Born October 2002 (now 18 years of age)

2. On 11 July 2019 Ms Buchanan applied for an assessment of child support. On 20 August 2019 the Agency decided to accept Ms Buchanan’s application for an assessment of child support and in so doing recorded the child’s care as equal shared care expressed in the assessment as 51% with Ms Buchanan and 49%[3] to Mr Buchanan as from 28 February 2019.[4]

   [3] This reflects as each having a 50% cost percentage see page 61 of the documents

   [4] Page 57 of documents

3. Mr Buchanan objected to that decision on 3 February 2020. On 9 April 2020 the Agency allowed the objection instead deciding care of the child as 35% to Ms Buchanan and 65% to Mr Buchanan as from 28 February 2019 but with effect on the assessment as of 3 February 2020.[5] The Agency wrote to Ms Buchanan and Mr Buchanan on 9 April 2020 advising of their decision.

   [5] This was the date of the lodged objection as the objection was made outside of 28 days

4. Ms Buchanan lodged her application with the tribunal on 1 September 2020. On 26 November 2020 the tribunal convened a hearing. Ms Buchanan and her legal representative [Mr A], and Mr Buchanan and his legal representative [Ms B], participated by telephone conference. Ms Buchanan and Mr Buchanan gave evidence on affirmation.

5. The Agency provided documents relevant to their decision (261 pages). Written submissions and documents were received from both parties (Ms Buchanan A1-A100 and Mr Buchanan B1-B58). The tribunal deferred making a decision in order to allow the parties to provide further written submissions.

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 RC Act).

2. Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but, provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.[6]

   [6] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

3. The issues to be determined in this case are:

   ·What is the care determination to be applied ?

   ·What is the date of effect of the tribunal’s decision?

CONSIDERATION

Issue one - What is the correct care determination to be applied?

1. Section 50 of the Act requires the Agency to determine a person’s percentage of care where a person has had, or is likely to have, a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.

2. As noted in this matter the Agency, as part of the decision to accept Ms Buchanan’s application for an administrative assessment of child support, decided that the parents had equal care. This was on the basis that it accepted the child attended boarding school, Mr Buchanan and an associated family trust paid the school fees, but that Ms Buchanan provided most of the overnight care when the child came home on holidays.

3. On objection the Agency decision maker concluded that based upon nights in care between 28 February 2019 to 21 July 2019 the likely pattern of care would be that Ms Buchanan would have 35% care and Mr Buchanan 65% care.

4. Submissions made on behalf of Ms Buchanan by [Mr A] can be summarised as follows:

   a)The arrangement whereby Mr Buchanan was meeting the boarding school costs should not be given any greater weight given that financial matters between the parties were yet to be settled by the Family Court and to suggest that those resources came completely from the husband was incorrect as the funds came from joint matrimonial assets that were yet to be settled.

   b)The decision made by the Agency on objection ignored to a large extend the non-financial support provided by Ms Buchanan; for example, it is Ms Buchanan who provided emotional support and the day-to-day practical support for the child.

   c)Based upon an equal attribution of the financial support of the child and taking into account other non-financial aspects, Ms Buchanan ought to be assessed as having 84% and Mr Buchanan 18% of the care.

5. In her evidence Ms Buchanan told the tribunal that:

   a)At the point at which the parties separated and at the time she made her application for an assessment there were no court orders or written care agreements in place for the child.

   b)She spoke to the Agency in July 2019 and explained that the child attended boarding school and, on her holidays, returned to [Town] and stayed with her and saw her father sporadically. She said that this was consistent with the usual pattern that occurred prior to separation (except at that time Mr Buchanan was still in the former matrimonial home).

   c)The child had been attending boarding school since 2014 having been jointly enrolled by herself and Mr Buchanan and as such they were jointly responsible for the education and boarding costs.

   d)After separation on 28 February 2019 the child had just started back at school on 1 or 2 February 2019. She and Mr Buchanan decided and agreed not to change anything because their daughter was in the last year of school and she wanted to finish her year at the boarding school.

   e)No other changes were made formally with the school but practically there were some changes following separation in 2019. After separation she would attend events for the child at her school separately from Mr Buchanan. She and her daughter would email and phone each other on a daily basis. She would regularly engage with school correspondence and provide her daughter regular emotional and practical support.

   f)The boarding school would contact her if there were any issues. Any medical or other appointments would be made by her and then she would advise the school nurse to take the child or if Ms Buchanan was in Perth, she would take her. This arrangement was in place prior to separation and continued after separation

   g)Prior to moving to Perth Ms Buchanan kept the school holiday arrangements the same with the child returning to [Town] and staying with her at the former matrimonial home – it was in that regard “business as usual”. There was no agreement with Mr Buchanan about how and when the child would spend time with her father; however, on the advice of the Family Court, given the child’s age, [the child] was able to make those decisions herself.

   h)On 5 January 2020 Ms Buchanan moved to Perth with the child still attending boarding school. This meant that she got to see her daughter more often during the week and including the weekends and regularly stay with her from Thursday to Sunday during term. After she moved to Perth in 2020, she would take the child to any medical, dental or other appointments as required.

   i)When Mr Buchanan rented a property in Perth, the child did not spend any nights with her father.

   j)She thinks that following the separation she would have had 90% care as that was the situation prior to separation and this did not change post separation.

6. [Ms B]’s submissions included the following:

   a)Her client met 100% of the costs through personal or trust resources and he objected to the original care determination because he believed his financial contribution for the school and associated costs equated greater than 49% care.

   b)It was not correct to characterise the father’s financial contributions as coming from joint matrimonial assets.

   c)Ms Buchanan has overstated the amount of care she had of the child after she moved to Perth.

   d)The non-financial aspects of care should be given less weight given the age of the child and that to a large extent she was at that stage self-directing herself on many of those aspects.

7. Mr Buchanan told the tribunal:

   a)It was not in dispute that the child had been attending boarding school since 2014 and that following separation he and Ms Buchanan agreed to try and keep things as much as possible unchanged and that the child would remain at the boarding school.

   b)There was no real discussion regarding how care would change once he moved out of the former matrimonial home.

   c)He agreed that following separation when both parents were still in [Town], the child continued the pattern of coming to [Town] for holidays and he would be in regular contact with his daughter but agreed that she would stay at the former matrimonial home.

   d)Even when the child was at boarding school, he would also travel down to Perth to see the child  where he could spend time with her.

   e)The arrangements for payment of the school fees remained unchanged.

8. As noted in the Guide, the percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child.[7] When an application for child support assessment is received, the Registrar is required to determine the percentage of care that is to be applied to the assessment.

   [7] The Guide 2.2.1.

9. Section 50 of the Act requires the Agency to determine a person’s percentage of care where a person has had, or is likely to have a pattern of care for a child for the care period.[8] The percentage of care so determined must be a percentage that corresponds with the actual care of the child. As noted, this is not a case in which there is a written agreement, court order or parenting plan and the tribunal is required to consider the percentage of care based on actual care.

   [8] A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised (the Guide 2.2.1)

10. In this matter both parties confirmed in their evidence that the child attended boarding school at [a] School in Perth since 2014. The family resided in [Town]. Following their separation (28 February 2019) the parents agreed that the child would continue to attend boarding school. The arrangement (which was in place prior to separation) meant that the child was in Perth for the school term and travelled to [Town] for the school holidays where she stayed with her parents. Following the parent’s separation, the child continued to travel to [Town] for the holidays and would stay at the former matrimonial home with her mother and spend time with her father but this did not involve nights in care with her father.

11. In January 2020 Ms Buchanan moved to Perth with the children and was followed by Mr Buchanan who also decided to relocate to Perth. At this point the child continued to attend boarding school during the week but would spend weekends and some weeknights with the mother and spend time with her father. Mr Buchanan said that he also spent time with his daughter but not overnight care. Post separation Mr Buchanan continued to pay for the tuition and boarding costs for the child partly from what he says are his personal funds and partly from funds derived from a family trust.

12. The primary decision maker’s (that is, the ’Agency’s) essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review, there is a clear “temporal element” in reviewing care percentage decisions. This in effect means that evidence of what happened between notification and the time of review is generally not likely to be relevant except to the extent that such evidence informs the actual or likely pattern of care as of the date of notification.

13. In this case the evidence that is most consistent for both parents is that at the time of Ms Buchanan’s’ application for assessment, the pattern of care to a large extent reflected the arrangements that had been in place prior to the parents’ separation. In this regard the tribunal finds that following that separation:

    a)the child continued to attend boarding school in Perth during the school term;

    b)the child continued to return to [Town] for her holidays;

    c)each parent on various occasions travelled to Perth to visit or spend time with their daughter for particular events;

    d)each parent would regularly communicate with their daughter by phone or email when she was in Perth;

    e)Ms Buchanan was the main point of contact to organise medical or other appointments for the child;

    f)both parents continued to provide emotional support to their daughter.

14. The only real change at the point in time when the application for assessment was made was that Mr Buchanan had moved from the matrimonial home and so did not have overnight care of the child when she returned home for the holidays.

15. In relation to the financial aspects of meeting the school and boarding school expenses, there was significant argument about whether to characterise the payment of school costs as coming from matrimonial assets yet to be determined by the Family Court or as coming from Mr Buchanan. In the tribunal’s view, what is most significant is that both parents had enrolled and were mutually responsible for their daughter’s costs of education and board. The arrangement that was agreed and in place prior to separation whereby those costs were met by Mr Buchanan, continued post separation.

16. In determining the percentage of care where a child was (as in this case) attending boarding school, the tribunal noted the Federal Magistrate’s decision in Polec & Staker & Anor[9] [at paragraph 56 of that decision]:

    [9] (SSAT Appeal) [2011] FMCAfam 959 (9 September 2011)

    In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

    a.To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?

    b.To what extent does the person make arrangements for others to meet the needs of the child?

    c.To what extent does the person pay for the costs of meeting the needs of the child?

    d.To what extent does the person otherwise provide financial support for the child?

    e.To what extent does the child provide for his or her own needs or have those needs met from another source?

    f.To what extent is the child financially independent or financially supported from another source?

17. In the tribunal’s view the evidence in this case confirms that each parent was contributing to the care each in their own particular way. On balance whilst Mr Buchanan continued with the arrangement in which he organised for the payment of school and boarding costs, Ms Buchanan had overnight care of the child when she was on holidays and on the evidence was the first point of contact and the person who would more regularly organise appointments for the child. The tribunal concluded that on this basis, the likely pattern of care as of Ms Buchanan’s application for assessment was that the parents would have equal care of the child.

18. In this matter the tribunal concluded that the correct care determination to be applied as a result of Ms Buchanan’s application for an administrative assessment is to reflect that the parties each have 50% care.

19. In this matter the tribunal further notes there is evidence that since the initial date of notification there has been a subsequent change in the pattern of care. In such a case the Child Support Registrar upon notification of a change will need to determine whether to revoke the existing care determination and replace it with a new care determination.[10]

    [10] A new percentage of care can be determined by the Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act

Issue two - What is the date of effect of the tribunal’s decision?

1. The final matter the tribunal is required to consider is the date of effect of the tribunal’s decision. Section 95N of the RC Act provides for the date of effect of a decision made by the tribunal upon first review of a care percentage decision.

2. Subsection 95N(1) of that RC Act provides that where an application for tribunal first review is made more than 28 days after notice of the ’Agency’s decision is served, then if the objection decision is varied or substituted (as in this case) the tribunal’s decision has effect on and from the day the application to the tribunal was made.

3. Subsection 95N(2) of the RC Act provides that if the tribunal is satisfied that there are special circumstances which prevented (emphasis added) the application for review being made within the specified time period, it may determine a longer period as the tribunal determines to be appropriate.

4. Special circumstances are not defined in the Act. The Family Court has considered the phrase “in the special circumstances of the case” in relation to provisions in the Act which relate to consideration of grounds for departure.[11] The Family Court in Gyselman & Gyselman (1992) FLC 92-279 has held:

   As a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the court will not interfere with the formula in the ordinary run of cases.

   [11] See generally subsection 117(2) of the Act

5. The Guide at 4.1.8 in discussing special circumstances[12] relevantly notes that examples of special circumstances may include situations such as:

   ·     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.

   [12] This is in the context of subsection 87AA(2) of the RC Act

1. In this matter the tribunal finds that Ms Buchanan was sent notice of the objection decision on 9 April 2020 and that she lodged her application for review with the tribunal on 1 September 2020. This means that the application made by Ms Buchanan to the tribunal was made more than 28 days after notice of the decision was served on her.

2. Ms Buchanan told the tribunal that she did not act and seek a review because she was told by the Agency that she could not do anything about the situation because Mr Buchanan was paying the school fees and was on the enrolment forms for the child. Finally, a specialist from the Agency spoke to her and told her that she needed to go the tribunal, and this was the first time someone explained the process to her.

3. In this regard the tribunal notes that according to the Agency record, Ms Buchanan contacted it on 18 May 2020 whereby she discussed the assessment and the care for the child – Discussed care change – RP did not changed care but advd she will re lodge COA instead.[13] On 23 June 2020 the Agency advised Ms Buchanan she could change the care details online and it appears that on 3 August 2020 Ms Buchanan attempted to change the care percentage for the period already determined and was advised that if she was seeking review of that earlier period, she needed to make application to the AAT.[14]

   [13] Page 172 of documents

   [14] See pages 185-186

4. The tribunal referred Ms Buchanan to the notice of decision which set out her review rights and the relevant timeframe. Ms Buchanan said that it was a very emotional and rocky time and when she gets inundated with paperwork, she gets frustrated and misses things. At the time of the decision she was also very much involved in getting ready for Family Court proceedings and it was a stressful period in preparing for the hearing so she would not have had time to concentrate on the child support aspects.

5. [Mr A] submitted that the Agency record of her contacts with them shows that she was trying to address the care arrangements (he referred to contact made on 5 February 2020 and 3 March 2020 - which the tribunal notes predates the Agency’s objection decision). He also said that the COVID-19 situation was an unexpected event which should also be taken into consideration as Ms Buchanan at that time was home-schooling both children.

6. In response to these submissions [Ms B] submitted that Ms Buchanan’s legal representatives at the time failed to lodge her application within time and that the circumstances of the delay cannot be described as special as Ms Buchanan and her legal representatives had been provided relevant details regarding the time limits for review in the notice of decision.

7. In this matter the tribunal was not satisfied that special circumstances prevented Ms Buchanan from making her application within the legislative timeframe. In reaching this conclusion the tribunal took into account that:

   a)Whilst subsequent calls to the Agency made by Ms Buchanan raised her concerns about the care percentages, relevant information about her review rights was provided to her in the notice of decision dated 9 April 2020.

   b)Circumstances of being preoccupied with the preparation of Family Court proceedings and feeling stressed, whilst understandable, are not matters which the tribunal considers to be which is special or out of the ordinary.

   c)Likewise, the circumstance of being impacted by COVID-19 was not something that was particular to Ms Buchanan as this was an event which impacted upon all members of the community and that in itself would not have prevented Ms Buchanan from lodging her application with the tribunal within the 28 days.

8. As the tribunal declines to make a determination pursuant to subsection 95N(2) of the RC Act this means that the date of effect of the tribunal’s decision is the date on which the application was made; namely 1 September 2020

DECISION

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

a)The care determination to be applied as a result of Ms Buchanan’s application for an administrative assessment of child support as lodged on 11 July 2019 is that Ms Buchanan and Mr Buchanan each have 50% care of [the child].

b)The tribunal declines to make a determination pursuant to subsection 95N(2) of the Child Support (Registration and Collection Act) 1988 (the RC Act). The date of effect of this decision is 1 September 2020.