Cadwell and Cage (Child support)

[2020] AATA 3664

Cadwell and Cage (Child support) [2020] AATA 3664 (17 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC018960

APPLICANT:  Mr Cadwell

OTHER PARTIES:  Child Support Registrar

Ms Cage

TRIBUNAL:Member S Letch

DECISION DATE:  17 June 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations correctly revoked and new determinations made - decision under review affirmed

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

1. Mr Cadwell and Ms Cage are the parents of [the child].

2. Care for [the child] had been recorded by the Child Support Agency (CSA) as 86% to Ms Cage and 14% to Mr Cadwell when, on 27 July 2019, Mr Cadwell advised the CSA that, with effect from 1 July 2014, he had 35% care of [the child]. On 29 July 2019, the CSA decided to change the assessment and determined Mr Cadwell’s care had increased to 35% (a critical threshold for child support and family tax benefit purposes).

3. Ms Cage objected to the decision on 30 October 2019 (notably, more than 28 days after she was notified of the original decision); on 26 March 2020, an objections officer decided that Mr Cadwell’s care should be recorded as 33%. By way of background, it is convenient to reproduce extracts from the objection officer’s letter:

   On 27 July 2019 Mr Cadwell lodged a change in care application for [the child]. He advised from 1 July 2014 he had 35% care of [the child] based on the actual care he provided.

   On 29 July 2019 we spoke to Ms Cage and she confirmed Mr Cadwell`s reported change in care. She said his claims sounded right as he has care for two nights every week consistently plus additional nights throughout the year. She believes the amount would equate to 129 nights over a 12-month period. We advised we would accept Mr Cadwell`s change in care application and issue letters confirming the decision.

   On 29 July 2019 we made the decision to accept Ms Cage provided 65% care and Mr Cadwell provided 35% care of [the child] from 1 July 2014. We issued letters to both parents advising them of the decision.

   On 29 July 2019 we received Ms Cage`s objection to the decision outside the required timeframes. It was explained to Ms Cage that a special circumstances application would be required in order to apply the objection decision from an earlier date. Ms Cage has applied for special circumstances to be considered.

   …

   On 13 November 2019 Mr Cadwell responded to Ms Cage`s objection. He explained when he put in the care change on 27 July 2019 he used this year and last year's care. In comparison he established this was a similar pattern which has occurred since 1 July 2014. He explained the actual care he was having at the time was two nights every weekend; plus half of all school holidays and every long weekend (minimum 164 nights or 44% care). Lately, he has been having care every Sunday night due to work and this started on 1 September 2019.

   On 19 November 2019 Mr Cadwell`s response was exchanged with Ms Cage. Ms Cage stated Mr Cadwell`s expected pattern of care was two nights each week during school terms and half school holidays (33%).

   Despite this, Ms Cage advised he frequently misses care and in some weeks, does not have any care. So his care varies. She advised she was happy to accept Mr Cadwell has 33% care of [the child] based on his expected care pattern. But she does not agree Mr Cadwell has 35% care of [the child]. Ms Cage also confirmed this expected pattern has been the case since July 2014.

   …

   Ms Cage explained the delay was due to: - She was initially happy to leave the care at 35% to Mr Cadwell until he lost his job and lodged a nil estimate, which then meant the roles were reversed and she was now assessed to pay him child support for [the child].

4. Mr Cadwell applied for further review by the Tribunal on 1 May 2020. Both parties participated in the hearing by conference telephone.

5. Mr Cadwell told the Tribunal that he seeks what he regards as a “fair outcome”. The CSA had calculated the assessment on the basis of two nights a week and half the school holidays (122 nights); however, Mr Cadwell considers extra nights (for example, sometimes a Sunday night, and where he takes [the child] to school on a Monday morning) should be included. Mr Cadwell relied on a calendar he kept (at folio 144 of the CSA materials) where he had highlighted when he had care of [the child]; in July 2019, he highlighted the 3rd, 4th, 5th, 6th and 7th  (where he had overnight care on the 3rd, 4th, 5th and 6th, with [the child] going back to Ms Cage on 7 July 2019). Mr Cadwell recalled that would have been a school holiday period. Ms Cage told the Tribunal that she “agreed with the majority of dates recorded”; she said her own records do not go back that far.  

6. Mr Cadwell’s calendar for August 2019 recorded a “missed weekend” (9 and 10 August), with the regular Friday and Saturday night pattern for the rest of the month. In September 2019, extra Sunday nights were recorded for the whole of the month. Ms Cage agreed that there were a “couple of weekends where that happened”. “Missed weekends” were recorded on the first two weekends in November 2019.

7. Ms Cage told the Tribunal that the usual and expected global pattern, as agreed between the parties, was for Mr Cadwell to have Friday and Saturday of each week, and half the school holidays. She considers the CSA has applied Mr Cadwell’s percentage of 33% correctly.  The reason Ms Cage objected was that Mr Cadwell does not always have [the child] for the weekend; he may go away, or [the child] (or Mr Cadwell or Ms Cage) might be unwell. Ms Cage said there was a degree of flexibility to the arrangements. Mr Cadwell indicated that nights where he did not have [the child] because he was sick were “out of his reach” and should be included in the pattern of care.

8. The Tribunal observes that determinations about care do not provide a warranty of perfection; these assessments are not intended to account for every single night. The case law in this area suggests a relatively “broad brush” should be applied.

9. An examination of Mr Cadwell’s records reveal that he missed some weekends; however, he made up for nights with additional Sunday night care. In other words, the sensible and flexible arrangement between the parents involved some “swings and roundabouts”. The policy guidelines in this area allow a degree of flexibility for missed care events, and a capacity for a “missed care event” to be made up at another time.

10. In this case, the Tribunal is satisfied that the underlying pattern of the care arrangement was for Mr Cadwell to have two nights a week, and half the school holidays (122 nights a year, or 33%). This is reflective of the pattern, or likely pattern of care, and it appropriately should apply to the assessment. This is the same conclusion as the objections officer.

11. That leaves for consideration whether, for the purposes of section 87AA of the Child Support (Registration and Collection) Act 1988, there were special circumstances which prevented Ms Cage objecting to the decision within 28 days. The sorts of circumstances envisaged by the guidelines include ill health, or natural disasters – generally, circumstances beyond a person’s control.  

12. Ms Cage told the Tribunal she did not fully understand ramifications of the original decision; she said that “when she went through it properly herself”, she came to the realisation she needed to object.  

13. The Tribunal does not consider Ms Cage’s reasons to be “special”. She failed to exercise her rights within the legislated period; there were no circumstances beyond her control. The Tribunal refuses to make a determination pursuant to section 87AA; the result will be the objection decision will not take effect until 30 October 2019 (the same conclusion as the CSA).

14. As the Tribunal has reached the same conclusions as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.