Carraher and Edelstein (Child support)

[2022] AATA 5018

Carraher and Edelstein (Child support) [2022] AATA 5018 (8 December 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024755 and 2022/SC024791

APPLICANT:  Mr Carraher

OTHER PARTIES:  Child Support Registrar

Ms Edelstein

TRIBUNAL:Member E Kidston

DECISION DATE:  8 December 2022

DECISION:

The Tribunal sets aside the decision under review dated 8 June 2022 and, in substitution, decides that from 12 February 2022, the care percentage determinations concerning the children of 86% to Ms Edelstein and 14% to Mr Carraher are revoked and replaced with new care percentage determinations for the children of 14% to Ms Edelstein and 86% to Mr Carraher, with effect from 13 February 2022.

The Tribunal sets aside the decision under review dated 9 June 2022 and, in substitution, decides that from 29 March 2022, the care percentage determinations concerning the children of 14% to Ms Edelstein and 86% to Mr Carraher is revoked and replaced with new care percentage determinations for the children of 0% to Ms Edelstein and 100% to Mr Carraher, with effect from 30 March 2022.

The Tribunal makes a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 such that the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period and both applications for review were 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 – decisions 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

1. Mr Carraher and Ms Edelstein are the separated parents of [Child 1] (born 2016), [Child 2] (born 2018) and [Child 3] (born 2020) (the children).

2. This review application concerns a decision of Services Australia – Child Support Agency (the CSA) about the recorded care for the children in relation to a registered child support case. The CSA had recorded the care percentage for the children as 86% to Ms Edelstein and 14% to Mr Carraher. 

3. On 18 March 2022 Mr Carraher notified the CSA of a change in care for the children from 2 March 2022 as 86% to him and 14% to Ms Edelstein.  Then on 30 March 2022, Mr Carraher contacted the CSA and provided another change of care notification, this time as a 100% care of all three children to him from 13 February 2022.

4. On 11 April 2022, the CSA made decisions to reject both change notifications made by Mr Carraher in March 2022 (original decisions).

5. On 2 May 2022 Mr Carraher objected to the original decisions and stated that care of the children increased to 100% to him from 23 February 2022. He informed a CSA officer that he would provide third party statements and other evidence to support his position.

6. By 8 June 2022 no evidence or communication had been received by the CSA from either Mr Carraher or Ms Edelstein and a delegate of the CSA determined to disallow Mr Carraher’s objections. An objection notice dated 8 June 2022 related to the first notification of 18 March 2022 and another objection notice dated 9 June 2022 related to the second notification of 30 March 2022.  The objection notifications were issued by the CSA to both parties online.

7. In September 2022, Mr Carraher contacted the CSA in relation to a change of assessment and debt notification he received and was informed to object to the care percentage determinations made earlier in the year.  In subsequent communication with the CSA, it was explained to Mr Carraher that objections had already been made to the original decisions of 11 April 2022 and were subsequently disallowed in June 2022 such that the care of the children continued to be recorded by the CSA as 86% care to Ms Edelstein and 14% care to Mr Carraher.  Mr Carraher was informed that his only recourse was to lodge an application for review of the objection decisions with the Tribunal.

8. On 29 September 2022, the Social Security and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) received Mr Carraher’s applications to review the objections decisions dated 8 June 2022[1] and 9 June 2022[2]. 

   [1] 2022/SC024791

   [2] 2022/SC024755

9. The hearing of Mr Carraher’s applications[3] were held concurrently by the Tribunal on 7 December 2022. Mr Carraher spoke to the Tribunal by telephone conference and gave evidence on affirmation.   Ms Edelstein, as the other party, was notified of the hearing however, she did not attend.  The Tribunal attempted to contact Ms Edelstein by telephone on four occasions during the scheduled hearing period and was not successful.  The Tribunal checked its records and noted that the usual notices of hearing and attendance requirements were issued by the Tribunal Registry to Ms Edelstein and that no information or contact had been received by Ms Edelstein prior to the hearing concerning her inability to attend the hearing as scheduled for 7 December 2022.  Accordingly, as the applicant was in attendance and notices were issued to the parties, the Tribunal considered it appropriate in this matter to continue with the hearing as scheduled. 

   [3] Tribunal matter references: 2022/SC024755 and 2022/SC024791

10.  The Child Support Registrar also did not participate in the hearing and did not attend, however this is customary in first review hearings at the Tribunal.

11. In considering the applications, the Tribunal took into account the oral evidence of Mr Carraher and the documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibits 1 comprising of 212 pages for each matter) and subsection 37(1AF) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 2 comprising of 31 pages for each matter, which were Mr Carraher’s documents that he had provided to the CSA after the objection decisions were made).

12.  At the hearing, Mr Carraher told the Tribunal that although he had not received the hearing papers comprising of Exhibit 2 from the CSA, he had received a copy from the Tribunal and was willing to proceed with the hearing. For completeness, a copy of the CSA’s material in Exhibit 2 was sent electronically by the Tribunal Registry to Mr Carraher with these written reasons.

EVIDENCE

13.  The Tribunal considers it unfortunate that Ms Edelstein did not take the opportunity to attend the hearing as scheduled nevertheless, the Tribunal is still required to make findings of fact based on the evidence before it.

14.  The CSA’s records note that the objection decisions of 8 June 2022 and 9 June 2022 were made as the CSA did not receive any evidence to show the actual care occurring for the children from 13 February 2022 and as a result the CSA was not satisfied that a change to the pattern of care occurred and so refused to change the care percentages as recorded.

15.  Mr Carraher told the Tribunal that he disagrees with the CSA’s decisions because he has had sole care of the children since February 2022 and despite repeated contact with the CSA, the percentages have not been amended and have resulted in there being an accrual of unpaid child support to Ms Edelstein for a period where she has had no care at all of the children. Mr Carraher explained that he is now faced with his wages being garnished to pay child support arrears to Ms Edelstein, which he considers harsh and unfair in the circumstances.

16.  At the hearing, Mr Carraher provided a carefully considered account of events concerning the increase of care of the children to him at the start of 2022.  The following is a summary of the salient parts of his oral evidence:

·     By the end of 2021, Mr Carraher had regular care of the three children every second weekend. 

·     Mr Carraher’s care of the children increased at the start of the year when [Child 1] started school such that he had care of them every second Wednesday to Friday in addition to every second weekend. 

·     At about the same time, Ms Edelstein requested Mr Carraher care for the children as she was moving house and working more hours. By March 2022, the children were in Mr Carraher’s sole care. Mr Carraher received text message from Ms Edelstein that she intended to have care of the children every second weekend.

·     Mr Carraher’s lawyers drafted a consent parenting order in which Mr Carraher would have 86% care of the children and Ms Edelstein would have 14%. The draft order reflected Ms Edelstein’s request from her text messages to have care of the children every second weekend. This was the basis for Mr Carraher’s first notification to the CSA on 18 March 2022.

·     The draft consent order was sent to Ms Edelstein’s lawyers but has not been agreed to.

·     Soon thereafter, Mr Carraher was contacted by Ms Edelstein’s family member and informed that a report to Child Safety had been made against Ms Edelstein in relation to the children being exposed to inappropriate content on an iPad. 

·     At about the same time, Mr Carraher attended to register the younger children ([Child 2] and [Child 3]) into day care and was made aware that [Child 2] and [Child 3] had not been fully immunised and [Child 3’s] birth had not been formally registered. Mr Carraher made arrangements to have the younger children immunised and registered so that they may attend day care. 

·     As the children had been in his sole care for more than four weeks and Ms Edelstein had not responded to the draft consent order, or provided any assistance in relation to the immunisation status of the younger children and [Child 3’s] registration, Mr Carraher made the second notification to the CSA on 30 March 2022 as he no longer expected Ms Edelstein to have care of the children every second week as initially planned until a parenting agreement was in place between them and the alleged notification to Child Safety resolved.

·     From March 2022, Mr Carraher and his partner [Partner A] were supported by Mr Carraher’s mother, Ms Carraher, who attended at their home every Monday to Friday to care for [Child 2] and [Child 3] as they could not attend day care until they were fully immunised and [Child 3’s] birth was registered.

17.  At the hearing Mr Carraher informed the Tribunal that since 13 February 2022 he has had sole care of the children and although the children have spent a couple of hours sporadically over the past few month with Ms Edelstein, Ms Edelstein has had no overnight care of the children and there is no intention for that to occur until a parenting agreement is entered into through their respective legal representatives.

18.  In Exhibit 1, the CSA’s determinations to refuse to change the care percentages were based on the lack of supporting evidence from Mr Carraher and the unsuccessful attempts to contact Ms Edelstein. Folio 120 of Exhibit 1 contains a file note of Mr Carraher’s contact with the CSA on 9 May 2022 objecting to the original decisions.  In that note, it records that Mr Carraher would provide additional supporting evidence to the CSA.

19.  The Tribunal asked Mr Carraher why the additional material he spoke of to the CSA on 9 May 2022 was not provided until a date in September 2022, well after the objection decisions.  Mr Carraher told the Tribunal that he had spoken with Ms Edelstein after the original decisions to refuse to change the care percentages were made and Ms Edelstein informed him that she would pay child support and would contact the CSA to inform it that she agreed with the change in care notifications.  At the hearing Mr Carraher relied on the additional material he provided to the CSA to support his position and referred to text message evidence in Exhibit 2 at folio 19 where Ms Edelstein’s message dated 16 March 2022 included “I’ll have the kids fortnightly weekends and I’ll pay child support”.

20.  Mr Carraher’s submission is that he relied on Ms Edelstein contacting the CSA after the original decisions were made to inform the CSA that she agrees that the care percentages concerning the children should be 86% to him and 14% to her, and it would no longer be a disputed care matter.  Mr Carraher said that the didn’t provide the evidence he said he would provide to the CSA as he thought there was no longer a need for him provide it to prove his position. 

21.  At the hearing Mr Carraher stated emphatically that, until he received correspondence from the CSA as to an arrears of child support owing from him to Ms Edelstein, he was not aware that Ms Edelstein had not contacted the CSA as she said she would and, that the care percentage remained recorded as 86% to Ms Edelstein since his notifications in March 2022. Mr Carraher said he was shocked when he was informed by the CSA in September 2022 that he was required to pay arrears of child support to Ms Edelstein for the period the children had been in his sole care after he had notified. Mr Carraher contends that the CSA’s decisions to not change the care percentage determinations concerning the children has been unfair and unjust in the circumstances.  

RELEVANT LEGISLATION AND POLICY

1. The legislation relevant for this review includes the Child Support (Assessment) Act 1989 (“the Assessment Act”) and the Child Support (Registration and Collection) Act 1988 (“the Registration and Collection Act”), together referred to as the child support legislation.

2. The provisions in relation to the revocation of a determination of a percentage of care are in Subdivision C of Division 4 – Percentage of Care of Part 5 of the Assessment Act.

3. A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for the child.

4. It is an object of the Assessment Act, set out in paragraph 4(2)(c), that a person who provides ongoing daily care for a child should be able to have the level of financial support to be provided for the child readily determined without the need for court proceedings. In most cases, the extent of the care a person provides for a child is relatively clear and can usually be calculated based on the number of nights of care (see section 54A of the Assessment Act).

5. The CSA may revoke and make new care determinations to take into account a change in care. In simple terms, existing care percentages generally apply until the CSA is notified of a change in care and a new care decision can be determined if there has been a relevant change in the pattern of care. The decision is made by the CSA with reference to a point in time, and usually corresponds with the actual care based on what has happened up until the change in care is notified and what is the likely pattern of care thereafter. To consider whether any existing care percentages should be changed, it is therefore necessary to examine the likely pattern of care by reference to an appropriate care period.

6. It is important to note that not every deviation from an existing pattern of care constitutes a change in care, and depends upon the particular circumstances of the case, as explained in the Child Support Guide at 2.2.1 and 2.2.2.   The Child Support Guide is government policy which assists its decision-makers interpreting the child support legislation. The Tribunal is not bound by such policy; however, where the policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration.[4]

   [4] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

CONSIDERATION

1. The Tribunal is required to consider the issues before it based on the application of the law regarding the determination of care percentages for when a change in care has been notified to the CSA that differs from the percentages set by the CSA for a registered child support case.

2. In this matter, the Tribunal found there were existing percentage of care determinations made under section 50 in relation to the children, and that the CSA was notified by Mr Carraher in March 2022 that care of the children did not correspond with the percentage of care in the existing care determinations. 

3. As there is no written agreement in place that applied at the relevant time, the only way to determine the correct care arrangement is to look at the actual care that was provided. The general approach is to use the best evidence to arrive at a reasonable forecast of a pattern, or likely pattern, of care, going forward from the date of notification.

4. Often by the time an application to the Tribunal for review is heard, the majority of the care period will be in the past. Generally, the evidence provided to the Tribunal of care that has occurred since the original decision can prove or disprove the likelihood of a pattern of care. The evidence in this matter includes a third party declaration dated 20 September 2022 provided by Mrs Carraher (the children’s paternal grandmother) who assisted Mr Carraher and [Partner A] in caring for the younger children when they could not attend day care.  Mrs Carraher’s statement includes details that supports Mr Carraher’s position and that care of the children changed upon Ms Edelstein moving house, working extended hours and contracting COVID-19 in February 2022 (Exhibit 2 - folios 27 to 30).  Additional evidence in Exhibit 2 includes text messages between Ms Edelstein and Mr Carraher dated March and April 2022.  Those messages also support Mr Carraher’s position that he had sole care of the children, that in March 2022 the intention was for Ms Edelstein to have care of the children every second weekend and that Ms Edelstein’s agreed to pay child support.

5. Although Ms Edelstein did not provide any supporting evidence to the CSA or to the Tribunal that was contrary to Mr Carraher’s evidence, file notes in Exhibit 1 of Ms Edelstein’s discussion with the CSA noted that she disagreed with Mr Carraher’s notifications of change in care.  In weight the evidence, on balance the Tribunal considered Mr Carraher’s oral evidence and his supporting documentary evidence to be reliable in this case and is preferred.   As such, the Tribunal accepts the reasons provided by Mr Carraher as to why he notified CSA with two different care arrangements in March 2022 and the Tribunal also accepts Mr Carraher’s reasons for not providing additional supporting evidence to the CSA until a date in September 2022.

6. In the Tribunal’s view, the central focus of the child support law is the obligation of parents to meet the financial needs of their children. In circumstances where children have been living with one parent, coupled with continued financial, educational and emotional support provided by that parent, is a weighty consideration. Taking into account all of the evidence in this matter, the Tribunal considers the preferred conclusion is that care of the children changed from at least 13 February 2022, such that the intention between the parents was that Mr Carraher would have majority of the care and Ms Edelstein would have care every second weekend however, by the end of March 2022 it became apparent to Mr Carraher that he had sole care of the children for more than 4 weeks and would likely have sole care going forward.  With the benefit of hindsight, this is exactly what has occurred.

1. The Tribunal therefore finds that, as at 13 February 2022, the likely pattern of care concerning the three children was 86% to Mr Carraher and 14% to Ms Edelstein and, then from 30 March 2022 the likely pattern of care was 100% to Mr Carraher and 0% to Ms Edelstein.

2. Section 54F of the Assessment Act provides that an existing care percentage decision must be revoked if the CSA is notified, or becomes aware, that the actual care taking place does not correspond with the existing percentages of care recorded, and the change of care percentages would alter the cost percentage used for the parent in the administrative assessment. In this case, the change in care percentages would alter the cost percentage used for both parents. Accordingly, the Tribunal finds that the existing determination of 86% to Ms Edelstein and 14% to Mr Carraher must be revoked and the new care percentage determinations are to apply.

Date of effect

1. The Tribunal must also consider the date of effect of the new care determinations to Mr Carraher. Section 95N of the Registration and Collection Act determines the date of effect of a Tribunal decision to set aside a care percentage decision.

2. Section 95N provides that a review decision will have effect from the date the application for review was made, if the application was lodged with the Tribunal more than 28 days after notice of the objection decision was given. However, the Tribunal may extend the 28-day timeframe if there are special circumstances that prevented the applicant from applying within that 28-day period.

3. In this matter, Mr Carraher applied to the Tribunal on 29 September 2022 for a review of the objection decisions issued online to him on 8 June 2022 and 9 June 2022. As Mr Carraher’s applications were not within 28 days from when he is deemed to have received the objection decisions by law, the date of effect of any new decisions by this Tribunal is limited to the date he applied for review, unless the Tribunal is satisfied that special circumstances prevented him from appealing earlier.

4. While the Registration and Collection Act does not define the term “special circumstances”, the Child Support Guide at 4.1.8 provides some guidance. It states that the person’s circumstances must be “sufficiently special for the applicant to receive the benefit of an extension” and provides some examples.

5. At the hearing, it was submitted that Mr Carraher relied on what Ms Edelstein advised him that she would contact the CSA and confirm the change in care and pay child support. This is supported in evidence at folio 19 of Exhibit 2. In such circumstances it is understandable that Mr Carraher considered he was no longer required to provide evidence of the change in care as it was no longer a disputed care arrangement between the parents.  It was only when Mr Carraher received correspondence from the CSA indicating a debt of child support payable to Ms Edelstein had been raised that he made contact again with the CSA and was advised of the present circumstances, in that the care percentage notifications concerning the children had been refused and disallowed on objection.  Mr Carraher submitted that he did not properly understand the review process and had been provided incorrect advice by the CSA to make an objection when an objection had already been made.  He was subsequently advised of the proper process for review, and immediately applied to the Tribunal. 

6. The Tribunal is satisfied that the circumstances, as submitted by Mr Carraher, would have prevented him from requesting a review of the objection decisions issued on 8 June 2022 and 9 June 2022 within 28 days respectively and considers that extending the timeframe for making an appeal is fair in the circumstances of this matter.  The Tribunal has reached this conclusion on the basis that Mr Carraher and Ms Edelstein ought to be financially responsible for their children and the Tribunal does not disregard that issues can arise when disputed care arrangements are under review and the possible difficulties in navigating the review process and subsequent notification of changes under the child support legislative scheme. Furthermore, the Tribunal does not consider that a decision to extend time would prejudice Ms Edelstein and this is based on the above finding that Ms Edelstein has not had 86% care of the children since February 2022 and such an extension of the timeframe to make an appeal for review is fair and just in the circumstances.

7. Accordingly, the Tribunal will extend the timeframe under subsection 95N(2) of the Registration and Collection Act such that the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period and the applications for review were lodged with the Tribunal within that period.

8. As the Tribunal has reached a different conclusion to the objections officers, the decisions under review will be set aside.

Other matters

1. At the hearing, submissions were made as to the impact the CSA care determinations to refuse a change in care have had on the child support assessments and that Mr Carraher’s wages have been garnished to pay child support owing to Ms Edelstein when the children have not been in her care. It is understandable that Mr Carraher is concerned and feels aggrieved in relation to the calculation of, and garnishing of, child support arrears however, as canvassed at the hearing, it is open to Mr Carraher to raise such matters with the CSA following this review outcome.

DECISION

The Tribunal sets aside the decision under review dated 8 June 2022 and, in substitution, decides that from 12 February 2022, the care percentage determinations concerning the children of 86% to Ms Edelstein and 14% to Mr Carraher are revoked and replaced with new care percentage determinations for the children of 14% to Ms Edelstein and 86% to Mr Carraher, with effect from 13 February 2022.

The Tribunal sets aside the decision under review dated 9 June 2022 and, in substitution, decides that from 29 March 2022, the care percentage determinations concerning the children of 14% to Ms Edelstein and 86% to Mr Carraher is revoked and replaced with new care percentage determinations for the children of 0% to Ms Edelstein and 100% to Mr Carraher, with effect from 30 March 2022.

The Tribunal makes a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 such that the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period and both applications for review were lodged within that period.