Carron and Joyner (Child support)

[2022] AATA 3509

Carron and Joyner (Child support) [2022] AATA 3509 (4 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/BC023926 and 2022/BC023920

APPLICANT:  Mr Carron

OTHER PARTIES:  Child Support Registrar

Ms Joyner

TRIBUNAL:Member J Prentice

DECISION DATE:  04 August 2022

DECISIONS:

First decision (BC023926) (25 August 2021 notification)

The Tribunal sets aside the decision under review and substitutes a new decision that:

1. the existing care percentage determination of 50% care of [Child 1] to Ms Joyner is revoked from 6 March 2021 and replaced with a new care percentage determination of 0% care of [Child 1] to Ms Joyner from 7 March 2021; and

2. the existing care percentage determination of 50% care of [Child 1] to Mr Carron is revoked from 6 March 2021 and replaced with a new care percentage determination of 100% care of [Child 1] to Mr Carron from 7 March 2021.

The date of effect of the Tribunal’s decision is 3 March 2022.

Second decision (BC023920) (5 January 2022 notification)

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 revoked and new determinations made – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – decision under review set aside and substituted

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 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

BACKGROUND

1. Mr Carron and Ms Joyner are the parents of [Child 2] (born July 2003), [Child 1] (born September 2005) and [Child 3] (born 7 December 2007).  This review is with respect to two decisions of the Child Support Agency (CSA) about the recorded care for [Child 1] (only) in relation to a child support case registered with the CSA.

The first decision

1. The existing percentage of care determinations recorded by the CSA in relation to [Child 1] were 50% care to Mr Carron and 50% care to Ms Joyner from 23 September 2019, when Mr Carron contacted the CSA on 25 August 2021 and advised a change of care from 31 March 2021 to 100% care to Mr Carron and 0% care to Ms Joyner.

2. On 4 November 2021 the CSA determined that the care had not changed on 31 March 2021 and refused Mr Carron’s change of care notification.

3. Mr Carron lodged an objection with the CSA on 3 March 2022.  On 28 April 2022, a CSA objections officer disallowed the objection.

4. On 19 May 2022 Mr Carron lodged an application for review with the Administrative Appeals Tribunal (the Tribunal) stating that he disagreed with the CSA as he believes that the CSA has based its decision on unreliable evidence.

The second decision

1. Ms Joyner contacted the CSA on 5 January 2022 and advised a change of care from 23 December 2021 to 100% care to Mr Carron and 0% care to Ms Joyner. The care until then had been 100% to Ms Joyner and 0% to Mr Carron from 6 September 2021 pursuant to a further change of care notification on 24 September 2021 and subsequent decision of the CSA (with that decision not being the subject of an objection or an application to this Tribunal).

2. On 1 March 2022 the CSA determined that the care had changed and made a decision to reflect the level of care for [Child 1] as 100% to Mr Carron and 0% to Ms Joyner from 23 December 2021.

3. Mr Carron lodged an objection with the CSA on 3 March 2022 on the basis that he claimed the care had changed on 10 December 2021, not 23 December 2021. On 28 April 2022, a CSA objections officer disallowed the objection.

4. On 18 May 2022 Mr Carron lodged an application for review with the Administrative Appeals Tribunal (the Tribunal) stating that he disagreed with the CSA as he claimed he had care of [Child 1] from 10 December 2021.

Hearing

1. Mr Carron and Ms Joyner spoke to the Tribunal by conference telephone at a hearing on 3 August 2022 in relation to both the first and second decisions of the CSA and in relation to both applications to the Tribunal. Both gave evidence on affirmation.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Carron and Ms Joyner and documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1). Mr Carron also submitted additional material which has been taken into account to the extent relevant. Notably, Mr Carron in his additional material has raised many matters not relevant to the issues before the Tribunal, or not within the jurisdiction of the Tribunal.

ISSUES

1. The first issue for the Tribunal’s consideration is whether the existing percentage of care determinations for [Child 1] in relation to Mr Carron’s notification of 25 August 2021 are to be revoked and new percentage of care determinations applied and, if so, from what date or dates.

2. The second issue for consideration is whether the existing percentage of care determinations for [Child 1] in relation to Ms Joyner’s notification of 5 January 2022 are to be revoked and new percentage of care determinations applied and, if so, from what date or dates.

CONSIDERATION

1. 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 Act).

2. 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.

3. The Tribunal has also taken into account the Child Support Guide (the Guide), which contains governmental guidelines as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

4. Under the child support scheme existing care percentages generally apply until a change is notified and a new decision, with mostly prospective effect, is made; when a change is notified this requires consideration of the likely pattern of care taking place.

5. 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.

6. 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.

7. Any new percentage of care determinations usually 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.

8. 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 can then be considered and made if appropriate.

FIRST DECISION (BC023926)

1. Mr Carron and Ms Joyner both agree that Mr Carron had 100% care of [Child 1] from 7 March 2021 to 5 September 2021.

2. Mr Carron told the Tribunal that he did not advise the CSA of the change in care until 25 August 2021 as he had encouraged [Child 1] to reconnect with her mother and he had expected the care to revert to the previous pattern of 50/50.  Mr Carron added that other issues with respect to his daughter had taken priority at the time, including enrolling her in a new school.

3. In oral evidence to the Tribunal, both Mr Carron and Ms Joyner agreed that Ms Joyner had 100% care of [Child 1] from 6 September 2021 until December 2021.  However, Mr Carron claims that [Child 1] returned to his 100% care on 10 December 2021; and Ms Joyner claims that [Child 1] did not return to Mr Carron’s 100% care until 23 December 2021.  The disagreement about the date [Child 1] returned to Mr Carron’s care is the subject of a separate application (BC023920).

4. The Tribunal notes that the CSA decision of 4 November 2021 reflects 100% care to Mr Carron from 31 March 2021 (not 7 March 2021).  Mr Carron explained that when he notified a change in care on 25 August 2021, at the time he could not recall the exact date in March and he and the CSA officer decided to make it 31 March 2021.

5. However, in the circumstances of the case and the repeated confirmation by both parties at the hearing, the Tribunal is satisfied that Mr Carron had 100% care of [Child 1] from 7 March 2021 until 5 September 2021; and Ms Joyner had 100% care of [Child 1] from 6 September 2021 (with the care decision in relation to the change in September 2021 being the subject of a later notification and decision not before the Tribunal).

6. Assigning 100% care to Mr Carron from 7 March 2021 does not correspond with the pre-existing percentage of care determinations recorded by the CSA of 50% to Mr Carron and 50% to Ms Joyner at that time.

7. As regards whether Mr Carron was making [Child 1] available to Ms Joyner, topic 2.2.3 of the Guide includes the following guidance:

   The Registrar will consider that care is not taking place despite the genuine attempts of both parties to facilitate care if a teenage child is refusing to have the planned care. In most cases, the Registrar would only be satisfied that it is the child's action that is preventing the care from occurring when the child is 15 years or older (although in some circumstances younger children will be considered).

   In these circumstances, the Registrar will generally consider that the parent or non-parent carer is making the child available, and a below regular care determination can be made.

8. [Child 1] was over 15 years of age at all relevant times and the Tribunal is satisfied in the circumstances that she was deciding the extent of time she was having with each parent. In those circumstances the Tribunal is satisfied that Mr Carron was making [Child 1] available for care by Ms Joyner. Further, although Mr Carron did not notify the change in care on 7 March 2021 until 25 August 2021, the Tribunal is satisfied that this notification was within a reasonable period in the context of Mr Carron encouraging [Child 1] to reconnect with Ms Joyner and expecting the care to revert to 50/50 at any time. Section 54G of the Act therefore applies and the existing percentages of care of 50% for Mr Carron and 50% for Ms Joyner are therefore required to be revoked and new percentage of care determinations of 100% to Mr Carron and 0% to Ms Joyner are to apply.

9. Pursuant to subsection 54G(2) of the Act, as Ms Joyner had previously had a pattern of care of 50% which ceased, the revocation of each percentage of care determination takes effect at the end of the day before the day on which the person ceased the previously established pattern of care. Therefore, the existing percentage of care determinations are revoked from 6 March 2021.

10. As this is different to the decision reached by the objections officer in relation to the first decision, the first decision under review will be set aside and a new decision substituted.

11. As the objections officer did not allow Mr Carron’s objection, there was no need to consider any date of effect matters. Had the objections officer allowed the objection, the date of effect of the decision would be subject to section 87AA of the Registration Act. Subsection 87AA(1) of the Registration Act provides that if a person objects to a care percentage decision more than 28 days after the person was served with a notice of the decision, the decision has effect from the date the person lodged the objection. However, subsection 87AA(2) of the Registration Act provides an exception to that general rule if there are special circumstances that prevented the person from lodging the objection within 28 days such that the objection can be taken to have been lodged within time.

12. If, upon review, the Tribunal changes the decision then the Tribunal must also consider the implication of the late lodgement of the objection. Subsection 43(6) of the Administrative Appeals Tribunal Act 1975 permits the Tribunal to specify a date from when its decision should take effect.

13. On 3 March 2022, Mr Carron lodged an objection to the decision of 4 November 2021. This was outside the 28-day period for the purposes of section 87AA.

14. Topic 4.1.8 of the Guide, in referring to special circumstances (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

15. The Tribunal asked Mr Carron at hearing why he had lodged the objection more than 28 days after notification of the 4 November 2021 decision however he did not provide any justification for the consideration of special circumstances.

16. The Tribunal is therefore unable to be satisfied that there are special circumstances that prevented Mr Carron from lodging an objection at an earlier date.

17. Having regard to these findings, the Tribunal finds that the date of effect of this decision is from the date of the objection, that is 3 March 2022.

SECOND DECISION (BC023920)

1. Mr Carron told the Tribunal that he had claimed to have 100% care of [Child 1] from 10 December 2021 as that was the first day of her school holidays.  Mr Carron said that [Child 1] had called him a few weeks earlier and said that she wanted to return to the 50/50 care arrangement.  However, Mr Carron told the Tribunal that because [Child 1] was about to start her end of year exams, he told her to wait until the end of the school term.

2. Ms Joyner was definite in her evidence to the Tribunal that [Child 1] stayed with her until 23 December 2021.  Ms Joyner also pointed out that Year 10 students (including [Child 1]) commenced holidays on 27 November 2021.

3. Following the hearing the Tribunal contacted the high school which [Child 1] attends.  Consistent with Ms Joyner’s evidence it was confirmed that in 2021 the last day of the school term for Year 10 students was Friday 26 November 2021. While this evidence was not before the Tribunal, and therefore raised with Mr Carron at hearing, the Tribunal is satisfied that Mr Carron had full opportunity to respond to the evidence that the change in care did not occur until 23 December 2021, rather than 10 December 2021 as submitted by him.

4. Both Mr Carron and Ms Joyner claimed that they were responsible for organising casual work in the school holidays for [Child 1].

5. Ms Joyner informed the Tribunal that she kept a care diary. Further, Ms Joyner at hearing was able to give more specific detail in relation to care of [Child 1] and relevant dates, such as the last day of school for [Child 1] in that year, and the Tribunal concluded, on balance, that the care change for [Child 1] occurred on 23 December 2021.  On that basis the Tribunal is satisfied that Ms Joyner’s 100% care of [Child 1] continued until 23 December 2021 when Mr Carron then commenced having 100% care of [Child 1].

6. Section 54G does not apply in relation to this change in care because Ms Joyner was the person with reduced care (to less than the regular care she was having) and yet it was she, not Mr Carron, who notified the change of care.

7. Alternatively, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   (a)  the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   (b)  the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child. If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

8. The change from 100% care to Ms Joyner and 0% care to Mr Carron to 0% care to Ms Joyner and 100% care to Mr Carron would alter the cost percentages used for the parents in the administrative assessment. Therefore, pursuant to section 54F of the Act, the then pre-existing percentage of care determinations of 100% to Ms Joyner and 0% to Mr Carron for [Child 1] are to be revoked with new care percentage determinations of 0% to Ms Joyner and 100% to Mr Carron applying from 23 December 2021. As the change in care at this time was notified immediately, the date of effect for both percentage of care determinations is from the date of change on 23 December 2021.

9. As this is the same decision as that reached by the objections officer in relation to the second decision, the decision under review will be affirmed.

OTHER MATTERS

1. In her evidence to the Tribunal, Ms Joyner advised that Mr Carron had 100% care of [Child 1] from 23 December 2021 to 31 March 2022.  Mr Carron advised the Tribunal that the care arrangement from 1 February 2022 was 50/50 shared care of [Child 1].

2. The only notification and subsequent decisions before the Tribunal for review are in relation to the notification of a change in care by Mr Carron on 25 August 2021 and the notification of a change in care by Ms Joyner on 5 January 2022.

1. As already noted, subsequent further changes in care, if any, require further notification to the CSA following which a new decision by the CSA is required. It is a matter for Mr Carron and/or Ms Joyner to notify any subsequent changes in care.

DECISION

First decision (BC023926) (25 August 2021 notification)

The Tribunal sets aside the decision under review and substitutes a new decision that:

1. the existing care percentage determination of 50% care of [Child 1] to Ms Joyner is revoked from 6 March 2021 and replaced with a new care percentage determination of 0% care of [Child 1] to Ms Joyner from 7 March 2021; and

2. the existing care percentage determination of 50% care of [Child 1] to Mr Carron is revoked from 6 March 2021 and replaced with a new care percentage determination of 100% care of [Child 1] to Mr Carron from 7 March 2021.

The date of effect of the Tribunal’s decision is 3 March 2022.

Second decision (BC023920) (5 January 2022 notification)

The decision under review is affirmed.