Chanoine and Goldin (Child support)

[2023] AATA 1040

Chanoine and Goldin (Child support) [2023] AATA 1040 (22 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/CC025068

APPLICANT:  Mr Chanoine

OTHER PARTIES:  Child Support Registrar

Ms Goldin

TRIBUNAL:Member F Staden

DECISION DATE:  22 March 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – change did not amount to a change in the pattern - 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 Chanoine and Ms Goldin are the separated parents of two children, [Child 1] and [Child 2] (the children). There has been a child support assessment in this case since 3 November 2016. This review is about the care of the children from 30 April 2022.

2. From 13 December 2021 for [Child 1] and 17 December 2021 for [Child 2], Mr Chanoine’s care percentage for the children was recorded as 39% and that of Ms Goldin as 61%.

3. On 30 April 2022, Ms Goldin informed Services Australia – Child Support (Child Support) that from that day the care percentages for the children would be 59% for herself and 41% for Mr Chanoine. This was because Mr Chanoine would be providing additional nights of care for the children while Ms Goldin was travelling overseas from 8 May 2022 to 25 May 2022, even after allowing for some agreed nights of care swaps around the holiday period.

4. Child Support unsuccessfully attempted to contact Mr Chanoine about the proposed care change by telephone and letter on 4 May 2022 and by telephone on 17 May 2022.

5. On 17 May 2022, Child Support rejected the care change advised by Ms Goldin, essentially finding that the care change had yet to occur and was in any case temporary. The parents were informed of this decision by letters dated 17 May 2022, which also included information about how to object to the decision.

6. On 18 May 2022, Mr Chanoine notified Child Support of a 30 April 2022 care change, identifying the new care percentages as 42% for himself and 58% for Ms Goldin. This was initially treated as a new care change notification.

7. On 21 July 2022, Mr Chanoine informed Child Support that from 18 July 2022, his care percentage for the children was 44% and that of Ms Goldin 56%. Following 3 August 2022 confirmation of the care change by Ms Goldin, on 3 August 2022 Child Support accepted the care change with effect from 18 July 2022

8. Also on 3 August 2022, Mr Chanoine queried the status of his 18 May 2022 notification of a 30 April 2022 care change. He was informed that a 30 April 2022 care change notified by Ms Goldin was refused on 17 May 2022; that the same care change could not be considered afresh; and that his only option was to object to that refusal decision. Mr Chanoine lodged an objection to the 17 May 2022 decision on 3 August 2022.

9. On 31 October 2022, an objections officer disallowed Mr Chanoine’s objection.

10. On 17 November 2022, Mr Chanoine applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision. 

11. A hearing was held on 22 March 2023. Mr Chanoine gave sworn evidence by telephone. Ms Goldin chose not to participate in the hearing. The tribunal had before it documents provided by Child Support (100 pages), a copy of which was sent to the parents before the hearing.

12. Relevant evidence before the tribunal is referred to in the consideration below.

ISSUES

1. The statutory provisions most relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, the online technical and policy guide to the administration of the child support scheme.

2. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent or non-parent carer in relation to each child.

3. Child Support decides care percentages in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide a care percentage for each parent or non-parent carer when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require Child Support, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Centrelink are informed otherwise.

5. The key issue here is whether there was a change in the children’s pattern of care from 30 April 2022.

CONSIDERATION

Issue 1: Was there a change in the children’s pattern of care from 30 April 2022?

1. On the evidence in the Child Support papers and Mr Chanoine’s evidence at hearing, the tribunal accepted that:

   ·     From 17 December 2021 to 17 July 2022, the care percentages for the children were 39% for Mr Chanoine and 61% for Ms Goldin, other than during Ms Goldin’s 8 May 2022 to 25 May 2022 holiday and the period immediately around that holiday; and

   ·     The effect of Mr Chanoine providing extra care for the children during Ms Goldin’s holiday and of the parents’ agreed care swap arrangements before and after her trip was that Mr Chanoine provided nine extra nights of care related to Ms Goldin’s holiday.

2. Mr Chanoine argued that as a matter of fairness the care percentages used in the child support assessment should be adjusted to take account of the nine extra nights of care he provided.

3. For an existing care percentage to be revoked, it must first be established that there has been a change in the pattern of care. A temporary departure from an established pattern of care will not generally be considered to constitute a change to that pattern of care.

4. After careful consideration, the tribunal found that Ms Goldin’s holiday caused a temporary disruption of less than four weeks to an existing pattern of care. It is not disputed that that pattern of care was then re-established. Accordingly, the tribunal found that the existing care percentages of 39% for Mr Chanoine and 61% for Ms Goldin should not be revoked. The tribunal therefore affirmed the decision under review.

Other – Date of effect

1. The tribunal found Mr Chanoine to be a credible witness. He believed his 18 May 2022 contact with Child Support to be an allowable notification of a 30 April 2022 care change. He was not told until 3 August 2022 that, as Ms Goldin’s 30 April 2022 care change notification had been reviewed and refused on 17 May 2022, his only course of action was to object to that decision. Mr Chanoine lodged his objection to the 17 May 2022 refusal decision on that day, more than 28 days after the date of that decision.

2. As the tribunal is affirming the objections officer’s decision, it is not necessary to consider the date of effect provisions in the Child Support (Registration and Collection) Act 1988 (the R and C Act). However, for the sake of completeness, the tribunal will briefly discuss those provisions here.

3. Section 81 of the R and C Act provides that objections to decisions made by the Registrar must be lodged within 28 days after notice of the decision has been served. This section does not apply to care percentage decisions to which objections may be lodged at any time. However, under the date of effect provisions in section 87AA of the R and C Act, unless special circumstances prevented lodgement, the date of effect of a decision from an objection lodged more than 28 days after notification of the original decision is the date on which the objection was lodged.

4. Special circumstances are not defined in the R and C Act. The Child Support Guide at 4.1.8 Care percentage decisions gives some guidance:

   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.

DECISION

The decision under review is affirmed.