Chappel and Odell (Child support)

[2023] AATA 1182

Chappel and Odell (Child support) [2023] AATA 1182 (4 April 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC024906

APPLICANT:  Mr Chappel

OTHER PARTIES:  Child Support Registrar

Ms Odell

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  04 April 2023

DECISION:

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that there was no change in the pattern of care for [Child 1] from 15 November 2021.

(b) The Tribunal declines to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 25 October 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decision – late application for review – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines 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 removed 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 review is about a change to the percentage of care determinations for Mr Chappel and Ms Odell in respect of their child [Child 1] (born October 2004).  There has been a child support assessment in place since 23 April 2008.

2. From 19 May 2021 the child support assessment reflected Mr Chappel as having 100 per cent care and Ms Odell as having 0 per cent care of [Child 1].

3. On 29 December 2021 Ms Odell notified the Child Support Agency of a change to the care arrangements stating that she provides 50 per cent care and Mr Chappel provides 50 per cent care of [Child 1] from 15 November 2021.

4. On 13 March 2022 the Child Support Agency made the decision to refuse to reflect the change in care as advised by Ms Odell.

5. On 23 March 2022 Ms Odell objected to this decision and on 2 June 2022 the Child Support Agency allowed the objection and made the decision to reflect that Mr Chappel provides 0 per cent care and Ms Odell provides 100 per cent care of [Child 1] from 15 November 2021 (the objection decision).

6. On 25 October 2022 Mr Chappel applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 17 January 2023.  Mr Chappel gave evidence on affirmation by conference telephone.  The Tribunal wrote to Ms Odell on 22 December 2022 advising her the application for review would be heard on 17 January 2023 at 10:30 am.  Ms Odell was contacted on 17 January 2023 at the stipulated time and she informed the Tribunal she did not wish to participate in the hearing as she was at work.

8. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (191 pages).

9. At the commencement of the hearing Mr Chappel advised he had not received the papers from the Child Support Agency.  Mr Chappel requested the Tribunal delay making a decision until he had seen the papers and had time to review them.  The Tribunal agreed.  The papers were resent to Mr Chappel on 23 January 2023 but no subsequent comments were received.

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 R&C Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines 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, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Chappel told the Tribunal that care of [Child 1] was arranged verbally between the parents and there were no written agreements relating to her care.  Mr Chappel said there was no real change to the pattern of care for [Child 1] from 15 November 2021.

2. Mr Chappel explained that following a disagreement with [Child 1] she did start seeing her mother more often from November 2021 but this was sporadic and perhaps one night a week at most.  Mr Chappel said as he lived in [Suburb 1] only a few minutes from where [Child 1] went to school and Ms Odell lived 45 minutes away in [Suburb 2], [Child 1] would usually only visit her mother on weekends.  Mr Chappel said [Child 1] moved in permanently with Ms Odell around 5 February 2022 and he remembered the date because it was her school ball.

3. Mr Chappel said he disputed that [Child 1] was living with Ms Odell permanently from 15 November 2021.  Mr Chappel said he believed the calendars of care provided by Ms Odell were fabricated.  Mr Chappel also pointed out that despite the calendars being incorrect they still showed he continued to have care of [Child 1] in November and December 2021.  Mr Chappel conceded he did not keep a calendar of care as [Child 1] was always in his care.

4. Although Ms Odell did not participate in the hearing the Tribunal notes that when initially notifying the Child Support Agency on 29 December 2021 that care had changed she said [Child 1] was going back and forth between the parents’ homes.  In an email to the Child Support Agency on 29 December 2021 Ms Odell states that [Child 1] “will be staying at my place regularly” and in a further email dated 6 February 2022 Ms Odell states [Child 1] stayed with Mr Chappel for five nights in January 2022.  In conversations with the Child Support Agency Ms Odell is recorded as stating that Mr Chappel had care of three nights in January 2022.

5. The Tribunal notes in evidence from the Child Support Agency calendars of care provided by Ms Odell.  These show Mr Chappel as having the following care from 15 November 2022:

   ·     November 2022 – nil

   ·     December 2022 – 19, 20, 21, 22, 29, 30, 31 (seven nights)

   ·     January 2023 – 3, 4, 5, 6, 7, 8, 9, 10, 11 (nine nights)

   ·     February 2023 – 7, 8 (two nights)

6. The Tribunal notes in evidence a third party statement from [Ms A] and [Mr B] dated 10 March 2022.  It says that [Child 1] has “been living under our roof with my daughter Ms Odell since 15 November 2021”.  The Tribunal also notes a text message exchange between [Child 1] and Ms Odell on 11 January 2022 where [Child 1] asks if she can stay at her mother’s house tomorrow.

7. Mr Chappel has told the Tribunal that care of [Child 1] did not change from 15 November 2021, however, he has conceded that [Child 1] did start spending more time with Ms Odell from around this time.  Mr Chappel argues this care was sporadic and only around one night a week.  Mr Chappel has provided no evidence to support his care of [Child 1].  Ms Odell initially told the Child Support Agency that care was 50-50 between the parents from 15 November 2021.  The care calendars provided by Ms Odell indicate she was providing significantly higher care of [Child 1], however, this evidence is contradicted by her verbal statements to the Child Support Agency.

8. The third party statement provided by [Ms A] and [Mr B] suggests [Child 1] was in the 100 per cent care of Ms Odell since 15 November 2022, however, this is contradicted by the calendars provided by Ms Odell herself.  The Tribunal places little weight on this statement.  The text message from [Child 1] to Ms Odell confirms Mr Chappel was having care in January 2022 but does not indicate for how long.

9. According to the oral evidence provided by Mr Chappel the care of [Child 1] would be approximately 14 per cent care to Ms Odell from 15 November 2021 although he has stated this care was sporadic.  According to the calendars provided by Ms Odell the care of [Child 1] would be approximately 16 per cent to Mr Chappel from 15 November 2021 although her verbal statements conflict with this care.  There is little common ground between the parents.

Care percentage decision

1. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences.  Given the completely different views of the parents the Tribunal cannot be satisfied with any certainty that a clear and obvious change in care occurred from 15 November 2021.

2. The Tribunal is, therefore, unable to find there was a change to the pattern of care for [Child 1] such that a new pattern was likely to continue during a care period commencing from 15 November 2021.

3. The Tribunal notes that Mr Chappel agrees Ms Odell had 100 per cent care of [Child 1] from around 5 February 2022.  If neither parent has already done so this would need to be the subject of a separate change of care notification to the Child Support Agency.

Date of effect of care percentage decision

1. Section 95N of the R&C Act determines the date of effect of a Tribunal decision to set aside a care percentage decision.

2. Mr Chappel applied to the Tribunal on 25 October 2022 for a review of the objection decision made by the Child Support Agency on 2 June 2022.  The Tribunal is satisfied Mr Chappel was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 2 June 2022.  Given his application to the Tribunal was not within 28 days of receiving notice of this objection decision, the date of effect of any new decision by the Tribunal is the date he applied for review.

3. The Tribunal may extend the 28 days if there are special circumstances that prevented Mr Chappel from applying for review within this period. While the R&C Act does not define special circumstances, the Child Support Guide at 4.1.8 provides some clarification. It states the circumstances must be “sufficiently special for the applicant to receive the benefit of an extension”. Examples include the parent being seriously ill, suffering a personal trauma, a natural disaster causing damage to the parent’s property, communication difficulties or the parent reasonably relied upon inaccurate or misleading information.

4. Mr Chappel told the Tribunal the delay in his application arose because his focus was on raising [Child 1] and not child support matters.  Mr Chappel added that it was only when he realised [Child 1] had moved to live permanently with Ms Odell that he decided to appeal the decision.

5. Mr Chappel was approximately 117 days late in seeking a review of the objection decision by the Tribunal.  The notification of the objection decision provided by the Child Support Agency dated 2 June 2022 outlines what to do if Mr Chappel disagreed with the decision.  This includes asking the Tribunal to undertake a review “within 28 days from the date you receive this letter”.  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.

6. The Tribunal is not satisfied the circumstances as described by Mr Chappel are sufficiently special such that they prevented him from applying for a review within the timeframe prescribed.  Accordingly, the Tribunal will not extend the 28-day period and its decision is effective from the date of the application made by Mr Chappel, being 25 October 2022.

DECISION

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that there was no change in the pattern of care for [Child 1] from 15 November 2021.

(b) The Tribunal declines to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 25 October 2022.