Chaucer and Catleugh (Child support)

[2021] AATA 2733

Chaucer and Catleugh (Child support) [2021] AATA 2733 (21 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC020847

APPLICANT:  Ms Chaucer

OTHER PARTIES:  Child Support Registrar

Mr Catleugh

TRIBUNAL:Member S Brakespeare

DECISION DATE:  21 June 2021

DECISION:

a.The decision under review is varied so that Ms Chaucer’ and Mr Catleugh’s percentages of care in respect of [Child 1] were both 0% from 11 September 2020;

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 decision in (a) above is 20 February 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of whether care exists – older child living out of the home – existing percentage of care determinations revoked and new determinations made – decision under review varied

CHILD SUPPORT – date of effect of the tribunal’s decision – whether there were special circumstances that prevented the application for review being lodged in time - special circumstances do not exist - tribunal refuses to make a determination - the date of effect of the tribunal’s decision is the date the application for review was lodged

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. Mr Catleugh is the parent liable to pay child support to Ms Chaucer in respect of their child [Child 1] who turned 16 [in] September 2020. The existing percentage of care determinations held by the Child Support Agency recorded Ms Chaucer as having 100% care of [Child 1] and Mr Catleugh as having 0% care of [Child 1].

2. On 10 September 2020 an officer of the Child Support Agency revoked the existing percentage of care determinations and replaced them with determinations reflecting that both parents had 0% care of [Child 1] with effect from 22 April 2020.  A Centrelink officer applied the same percentage of care determinations to Ms Chaucer’s family tax benefit.

3. On 22 September 2020 Ms Chaucer asked Centrelink to review the percentage of care determinations. An authorised review officer of Centrelink affirmed the decision on 29 October 2020.

4. Ms Chaucer lodged an objection to the percentage of care determinations with the Child Support Agency on 29 September 2020. An objections officer disallowed the objection on 15 January 2021.[1] The Child Support Agency sent a written notice of the objection decision via electronic transmission to Ms Chaucer on 15 January 2021.

   [1] As a review of the care percentage decision had already been carried out under Division 1 of Part 5 of the A New Tax System (Family Assistance) (Administration) Act 1999 the objections officer could not allow the objection in a way that has the effect of varying the determination or substituting a new determination (subsection 87(1B) of the R&C Act).

5. Ms Chaucer lodged an application for review of the decision with the tribunal on 20 February 2021. A hearing was held on 4 June 2021. Ms Chaucer and Mr Catleugh gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with a bundle of papers relevant to the review (196 pages). After the hearing the tribunal deferred the matter to obtain further material from Ms Chaucer (folios A1 to A5). A copy of the extra information was provided to Mr Catleugh as information only. The tribunal chose not to seek further comment from Mr Catleugh for reasons noted in later in these “Reasons for Decision”.

6. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

1. The statutory provisions relevant to this review are in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The issues which arise in this case are:

   ·     whether the existing percentage of care determinations should be revoked and replaced; and  

   ·     the date from which the tribunal’s determination is to have effect.

CONSIDERATION

Issue 1 – Are the existing percentage of care determinations to be revoked and replaced?

1. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Child Support Agency is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. Section 54F applies if section 54G of the Act does not apply.

2. Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children.

3. Section 54G provides that if a responsible person was to have at least regular care of a child (that is, at least 14%) and the person had either no care or less than regular care, and the other responsible person notifies the Child Support Agency or the Family Assistance Office of the changing care within a period that the Child Support Agency considers is reasonable in the circumstances, the percentage of care determinations must be revoked and replaced under section 49 or section 50 of the Act.

4. Subsection 12(2AA) of the Act provides that a “terminating event” happens if neither parent is an eligible carer and there are no alternative non-parent carers entitled to be paid child support in relation to the child. Sections 5 and 7B of the Act provide that an eligible carer must have at least 35% of the child’s care. A terminating event means that the child support case in respect of the child is ended.

5. Section 74 of the Act provides that the Child Support Agency, upon being notified of or becoming aware of a terminating event, must immediately take action to give effect to the terminating event. If the Child Support Agency is required to end an assessment, the assessment will end from the date of the terminating event, regardless of the date that the Child Support Agency was notified of the terminating event (section 74 of the Act).

6. The term “care” is not defined in the legislation.  The tribunal had regard to the Federal Magistrates Court case of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959] which discusses the meaning of “care” in detail including the factors that should be taken into account when deciding if a person is providing care for a child.  The court stated that in determining whether and to what extent a person has care of a child for the purpose of the Act and the R&C Act it is necessary to consider the following:

   a.To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?

   b.To what extent does the person make arrangements for others to meet the needs of the child?

   c.To what extent does the person pay for the costs of meeting the needs of the child?

   d.To what extent does the person otherwise provide financial support for the child?

   e.To what extent does the child provide for his or her own needs or have those needs met from another source?

   f.To what extent is the child financially independent or financially supported from another source?

7. It is not in contention, and the tribunal finds that [Child 1] ceased residing with Ms Chaucer on 22 April 2020. On that date he started residing with his girlfriend’s family. He has not returned to reside with Ms Chaucer.

8. Ms Chaucer told the tribunal that the original care decision made by the Child Support Agency was that there was a terminating event because [Child 1] was living in a de facto relationship. Ms Chaucer said that it is this decision that she wishes to have reviewed because she has since been advised by the Child Support Agency that [Child 1] could not be considered to be in a de facto relationship as he was under 16 at the time.

9. The tribunal notes that the decision made on review by the authorised review officer was based upon [Child 1] not being in Ms Chaucer’s care – it was not based on [Child 1] being in a de facto relationship. The tribunal advised Ms Chaucer that the decision under review is broadly defined – that is whether there had been a change to the care of [Child 1] which changes the percentage of care determinations.

10. Ms Chaucer told the tribunal that between April 2020 and September 2020:

    ·She continued to buy [Child 1]’s clothing for him, take him out occasionally for a meal, and take him to all of his medical appointments.

    ·She accompanied him to parent/teacher meetings and psychologist appointments.

    ·She talked to him daily by telephone or via text and gave him advice and support when he called her.

    ·She provided money on a fortnightly basis to the person in whose home [Child 1] currently resides (at the person’s request the money went to the person’s de facto partner’s account, that is, [Mr A]’s account).

    ·She provided pocket money to [Child 1] via transfers to his bank account and she also gave him cash. She restricted the amount of money that went directly to [Child 1] as she did not want him purchasing drugs, alcohol or cigarettes.

    ·She continued to pay for [Child 1]’s mobile phone, haircuts, prescriptions and private health insurance.

11. Ms Chaucer said that when [Child 1] turned 16 he was granted a Centrelink payment. This was an outcome she did not support as she does not believe that [Child 1] has maturity to be financially responsible. She said that he has been diagnosed as being on the autism spectrum. It had been her hope for him to return and reside with her.

12. Mr Catleugh told the tribunal that he believed that [Child 1] was not in Ms Chaucer’s care once he ceased residing at her home and in his view she no longer had any entitlement to child support from him. He said that the money Ms Chaucer was transferring to [Child 1] was essentially his (Mr Catleugh’s) money and the amount was nowhere near the amount he was required to transfer to Ms Chaucer for [Child 1]’s support. He said that [Child 1] was eventually granted a Centrelink payment to support himself.

13. Ms Chaucer provided evidence from [Child 1]’s school and from the Youth Justice Co- ordinator SA which indicated that, at least during semester 1, 2020, she remained the main point of contact in respect of [Child 1], despite him not residing with her. She also provided evidence of regular bank transfers of $150 per fortnight to third parties in respect of [Child 1]’s food and numerous transfers of funds of varying amounts directly to [Child 1] through to late August 2020.

14. On 3 September 2020 the original decision maker contacted the third party ([Ms B]) with whom [Child 1] was residing.  [Ms B] advised that in the time that [Child 1] had resided at her home she had not received any direct payments from Ms Chaucer for his support. She said that Ms Chaucer pays [Child 1] directly and he does his own shopping. She also said that he makes his own medical appointments, gets himself to the appointments and pays for his own medicines.  She said she had not spoken to Ms Chaucer since [Child 1] had commenced living at her home. She assumed that if there were decisions to be made about [Child 1] she would have to make those decisions as he lives with her. She said that [Child 1] attends school one day per week as part of a special program.

15. The tribunal finds that [Ms B] was not providing financial support to [Child 1] to any great extent.  Most of [Child 1]’s needs were being paid for by Ms Chaucer, either in transfers of money to [Child 1], or to a third party to use on his behalf, or by direct purchases. [Child 1] had no independent source of funds with which to support himself.

16. After the hearing the tribunal requested Ms Chaucer provide evidence relating to [Child 1]’s receipt of an income support payment.  That evidence was in the form of Centrelink grant notices indicating that [Child 1] was granted special benefit from 11 September 2020 and was transferred to youth allowance from [date in] September 2020, once he turned 16. Mr Catleugh had also advised that [Child 1] was granted an income support payment at hearing but was unsure of the grant date. (The tribunal did not find it necessary to seek further comment from him regarding the information in the Centrelink notices).

17. The tribunal finds that Ms Chaucer continued to be the person providing care to [Child 1] until such time as he was granted his own income support payment. She appears to be the person who was providing for his emotional needs and dealing with various authorities  his behalf (e.g. school, and courts).  Whilst [Child 1] was making some decisions independently, his ability to do that during the relevant period was underpinned by the support Ms Chaucer continued to  provide.

18. The tribunal finds that [Child 1] had an independent income source for his own support from 11 September 2020. The tribunal is satisfied that  as of that time [Child 1] ceased being in Ms Chaucer’s care.

19. The tribunal finds that Ms Chaucer’s percentage of care for [Child 1] was 0% with effect from 11 September 2020 as he ceased being in her care. It follows that there was a terminating event in respect of [Child 1] from 11 September 2020.

20. The decision under review is varied so that the existing percentage of care determinations are revoked and replaced by percentage of care determinations reflecting that Ms Chaucer had 0% care and Mr Catleugh had 0% care of [Child 1] from 11 September 2020.

Issue 2 – What is the date of effect of the review decision?

1. Subsection 43(6) of the Administrative Appeals Tribunal Act 1975 provides that if the tribunal on review varies or substitutes a decision, the varied or substituted decision has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

2. However, section 95N of the R&C Act applies where the tribunal varies or substitutes a decision on an objection to a care percentage decision. If the application for review was made to the tribunal more than 28 days after notice was given, and the tribunal makes a decision which varies or substitutes a decision on the basis of an objection to a care percentage decision, the decision as substituted by the tribunal is taken to have been made on the day the application for review was made to the tribunal (subsection 95N(1) of the R&C Act).

3. Regulation 31 of the Child Support (Registration And Collection) Regulations 2018 (the Regulations) provides that any notice or other communication by or on behalf of the Registrar may be personally served on the person; or left at the person’s address for service; or sent by pre-paid post to the person’s address for service. If the person has consented to notices or communications of that kind, by way of electronic communication: “leaving it at the person’s address for service” includes delivering the notice or other communication by means of electronic communication. Section 14A of the Electronic Transactions Act1999 says that, “for the purposes of a law of the Commonwealth, an electronic communication will be deemed to be received by the addressee when it becomes capable of being retrieved at an electronic address designated by the addressee”. Subsection 14A(2) says that “it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address”.

4. If the tribunal is satisfied that there are special circumstances that prevented the application for review being made within the 28 day period after the notice was given, that period may be extended (subsection 95N(2) of the R&C Act).

5. The Child Support Agency advised the tribunal that Ms Chaucer was given a written notice of the objection decision via electronic transmission on 15 January 2021.

6. After the hearing the tribunal wrote to Ms Chaucer asking for to address whether there were special circumstances which prevented her from lodging her application within 28 days of notice being given.

7. Ms Chaucer responded that the Child Support letters are sent electronically to her myGov account; however, she did not receive notification that there was a new letter. She said that she read the letter on 25 January 2021. She said that the letter states she can appeal 28 days after she receives the letter, not 28 days after the date of the letter. She said that she rang the AAT prior to lodging her application and was told this was allowed, hence why she noted the date of 25 January 2021 as being the date she received the letter.

8. The tribunal notes that the date the notice is received is the date it was being capable of being retrieved from a person’s electronic address; it is not the date a person accesses and reads the notice.  In Ms Chaucer’s case that date of receipt is 15 January 2021 as that was the date the notice was capable of being retrieved from her myGov account. This remains the case even if Ms Chaucer was not notified that she had a new notice in her myGov account. The tribunal does not find that the circumstances outlined by Ms Chaucer constitute special circumstances that prevented her lodging her application in time. The tribunal therefore refuses to make a determination to extend the period for lodging the application for review.

9. This means that the date of effect of the tribunal’s decision to vary the percentage of care decision is the date that the application was made to the tribunal, being 20 February 2021.

DECISION

a.The decision under review is varied so that Ms Chaucer’s and Mr Catleugh’s percentages of care in respect of [Child 1] were both 0% from 11 September 2020;

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 decision in (a) above is 20 February 2021.