Chaucer and Taunt (Child support)
[2024] ARTA 209
•20 November 2024
Chaucer and Taunt (Child support) [2024] ARTA 209 (20 November 2024)
Applicant/s: Ms Chaucer
Respondent: Child Support Registrar
Other Parties: Mr Taunt
Tribunal Number: 2024/MC028225
Tribunal: General Member L Manville
Place:Brisbane
Date:20 November 2024
Decision:
The Tribunal sets aside the decision under review and substitutes a new decision that:
(a)In respect of [Child 1], the existing care percentage of care determinations of 50% to Ms Chaucer and 50% to Mr Taunt are revoked from 22 November 2022 and replaced with new percentage of care determinations of 92% to Ms Chaucer and 8% to Mr Taunt, with effect from 9 July 2024 pursuant to section 95N of the Child Support (Registration and Collection) Act 1988;
(b)In respect of [Child 2], the existing care percentage of care determination of 50% to Ms Chaucer and 50% to Mr Taunt are revoked from 22 November 2022 and replaced with new percentage of care determinations of 96% to Ms Chaucer and 4% to Mr Taunt, with effect from 9 July 2024 pursuant to section 95N of the Child Support (Registration and Collection) Act 1988.
CATCHWORDS
CHILD SUPPORT – percentage of care – change to the pattern of care – existing percentage of care determinations revoked – new determinations made – special circumstances for the date of effect – decision under review set aside and substituted
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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Ms Chaucer and Mr Taunt are the parents of [Child 1] (born 2009) and [Child 2] (born 2017).
On 27 March 2023, Ms Chaucer notified Services Australia – Child Support (Child Support) of a change in care in that she had 100% care of both children from 22 November 2022.
Prior to the change in care notification, a pre-existing care percentage determination was recorded that Ms Chaucer had 50% and Mr Taunt had 50% care of both children. The determination was in line with orders made in the Federal Circuit and Family Court of Australia [in] December 2021.
On 6 April 2023, Mr Taunt advised Child Support that he disputed the care notification and asserted that Ms Chaucer had been withholding the children since February 2023, and that he was attempting to regain access to them. Ms Chaucer contacted Child Support on 11 May 2023, and contended that Mr Taunt was only seeking access to [Child 2] and that, following an incident with [Child 1] and his father, she would not be returning the children to Mr Taunt’s care.
On 31 May 2023, a care determination was made reflecting 100% care to Ms Chaucer and 0% care to Mr Taunt of both children from 22 November 2023, with effect from 27 March 2023.
On 13 June 2023, Mr Taunt lodged an objection to the care determination made on 31 May 2023, on the basis that his 0% care was incorrect as there was a 50/50 shared care arrangement in place up until 26 February 2023. In her response to the care determination objection, Ms Chaucer agreed that the change in care date was 26 February 2023 from which she had 100% care. That is, both parents agreed that the 50% care percentage attributed to both parents existed between 22 November 2022 to 26 February 2023.
On 27 July 2023, an objections officer of Child Support allowed Mr Taunt’s objection and refused to reflect the care as 100% to Ms Chaucer.
On 9 July 2024, Ms Chaucer applied to the Administrative Appeals Tribunal (the AAT) for review of the decision.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The matter was heard on 20 November 2024, and both Ms Chaucer and Mr Taunt participated via telephone conference and gave sworn evidence.
The Tribunal had regard to the oral evidence given and the documents produced by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (then in force), numbered as pages 1 - 322 (the hearing papers). In the course of the hearing on 20 November 2024, the Tribunal permitted both parents to lodge any further SMS messages that demonstrated the dates from November 2022 to November 2023, when Mr Taunt had care of both children. On 22 November 2024, Ms Chaucer lodged information fitting that description. The materials were accepted and numbered A1 - A10. Mr Taunt did not lodge any further materials. Both parents agreed to having received the hearing papers in advance of the hearing.
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and Child Support (Registration and Collection) Act 1988 (the Registration Act).
The Tribunal had regard to the Child Support Guide (the Guide) where relevant. The Guide reflects government policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy and is not bound to follow it, it should take into account the relevant government policy which is not inconsistent with the provisions or objects of the Act.[1] The Tribunal had regard to the Guide where relevant.
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The issues which arise in this case are:
a) Are the pre-existing percentage of care determinations for Ms Chaucer and Mr Taunt to be revoked? And, if so,
b) What are the new percentage of care determinations for Ms Chaucer and Mr Taunt? And
c) What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new care determinations?
CONSIDERATION
[In] December 2021, final orders were made in the Federal Circuit and Family Court of Australia that orders that both parents were to have equal shared responsibility in relation to [Child 1] and [Child 2]. Following those parenting orders, care determinations were made to reflect Ms Chaucer as having 50% care of both children and Mr Taunt as having 50% care of both children.
On 27 March 2023, Ms Chaucer notified Child Support that there had been a change in care from 22 November 2022, namely that she had 100% care of both children and that Mr Taunt had 0% care. Mr Taunt disagreed with the change of care and sought a decision that reflected what the court order provided for.
To support her contention, Ms Chaucer provided a number of supporting documents to Child Support[2] including 2 third-party statements dated 3 April 2023 and 5 April 2023. Both writers state that from conversations with Ms Chaucer, they understand that both children have been living with Ms Chaucer since November 2022. No independent observations of such care are referred to by either writer.
[2] Folios 127, 128, and 141
A further third-party statement dated 24 April 2023, stated that the writer has been working with [Child 1] and Ms Chaucer since “January 2024” and verified that [Child 1] has been living with Ms Chaucer since 22 February. The Tribunal is satisfied that the reference to 2024 is inaccurate but nonetheless relied on the substance of the statement.
Mr Taunt also provided supporting materials to Child Support[3] that included a third-party statement dated 26 June 2023, that confirmed that both children stayed at Mr Taunt’s in late February. Mr Taunt also relied on SMS message exchanges between himself and Ms Chaucer between 1 January 2023 and 24 March 2023.
[3] Folios 133 – 135, 197, 198 – 206, 207 - 214
Ms Chaucer told the Tribunal that from November 2022, [Child 1] no longer wanted to stay at his father’s home. She said from that date until the end of January 2023 or early February 2023, she had both children for 100% of the time. She said that she returned [Child 1] to his father’s home at the end of January 2023 or early February 2023 for a 3-week period as she was having challenges with [Child 1’s] behaviour and getting him to attend school. That arrangement was in place until around 22 February 2023 when, following disagreements with his other siblings and an altercation with his father, [Child 1] ran away from home for several days. [Child 1] returned to Ms Chaucer’s care on 26 February 2023, and has remained with her on a full-time basis.
With respect to [Child 2], Ms Chaucer said that she has had 100% care of [Child 2] since 22 November 2022. She said that [Child 2] has stayed with her father for a few weekends in the period.
In respect of the care of both children, Ms Chaucer told the Tribunal that she believed she was protecting the children.
Mr Taunt told the Tribunal that he has been wanting to see his children but that Ms Chaucer had been withholding them from his care. He agreed that Ms Chaucer has had [Child 1] in her care for 100% of the time except the 3-week period in February 2023. He told the Tribunal that [Child 2] has been 100% in Ms Chaucer’s care with the exception of some occasions. He described the care arrangements with [Child 2] to be “confusing and all over the shop”. Mr Taunt told the Tribunal that he had arranged mediation with Ms Chaucer in regard to the return of the children which was ultimately unsuccessful, and he has taken legal advice regarding contravention proceedings of the parenting orders made by the court. Mr Taunt expressed that the only reason why Ms Chaucer has the children for 100% is because she is acting in contravention of court orders by withholding them from him.
Issue 1: Are the pre-existing percentage of care determinations for Ms Chaucer and Mr Taunt to be revoked?
Care decisions are made pursuant to the Assessment Act. If a person applies for an administrative assessment of child support and the Secretary is satisfied that the person has had, or is likely to have, a pattern of care for the child during the care period, then the decision-maker must determine that parent’s percentage of care during the care period.[4] The decision about care must be based on the actual care a person has had, or likely to have during a care period.[5] This may be worked out based on the number of nights the child was, or is likely to be, in the care of the person during the care period.[6] Relevant considerations, therefore, are both the care likely to occur and, where relevant, the actual care that has occurred.
[4] Section 50 of the Assessment Act.
[5] Section 50 of the Assessment Act.
[6] Section 54A of the Assessment Act.
The term “pattern of care” is not defined in the legislation. It involves consideration of the actual care or likely care that is taking place over the care period. The care period is such period that the Registrar considers to be appropriate having regard to all the circumstances.[7]
[7] Subparagraph 50(1)(b)(ii) of the Assessment Act.
Australian Government policy in this regard, as set out in section 2.2.1 of the Guide may be followed by Child Support. Under that policy a care period is generally a 12-month period from the day on which the actual care for the child changed. Minor departures from the actual care, such as missing a weekend of care due to illness or work, will not constitute a change in the pattern of care and result in a new care determination. The Guide also recognises that determining the care over a shorter or longer care period may be more appropriate and that the specific circumstances of each case will be considered to determine the appropriate care period.
The Tribunal finds that the appropriate care period to establish a pattern of care in this application was the 12-month period from 22 November 2022 to 21 November 2023. That is, the 12-month period commencing from the change of care as notified by Ms Chaucer on 27 March 2023.
Ms Chaucer told the Tribunal that in recent weeks there has been a further change in the pattern of care and the arrangement of 50% care to both parents has resumed. The Tribunal is not aware of any subsequent care determinations being made in respect of the current arrangements and does not form part of the decision under review in this application.
By application of subsection 50(3) of the Assessment Act, that care period must be a percentage that corresponds with the actual care of the child that the responsible person has had, or is likely to have, over that care period. In following the decision of Child Support Registrar v BKCZ[8] consideration must be given to the actual care that occurred as the care period is now fully in the past.
[8] [2022] AATA 725, [86].
In view of the evidence given by both Ms Chaucer and Mr Taunt and the supporting materials, the Tribunal finds that there was a change in the care position of [Child 1] and [Child 2] from 22 November 2022. Based on the actual nights of care asserted by the parents, the change to the pattern of care was 92% (334 out of 365 nights) to Ms Chaucer and 8% (31 out of 365 nights) to Mr Taunt of [Child 1], and 96% (352 out of 365 nights ) to Ms Chaucer and 4% (13 out of 365 nights) to Mr Taunt of [Child 2].
Generally, if care subsequently changes, the pre-existing percentage of care determinations are required to be revoked pursuant to either sections 54G or 54F, or may be revoked under section 54H. New percentage of care determinations are required to be made pursuant to section 49 or section 50 of the Assessment Act.
Section 54G of the Assessment Act provides that if a responsible person who was to have at least regular care of a child during a care period (at least 14% care) under a care determination made under section 50, had no care of the child, or a pattern of care that was less than regular care of the child, the care determination must be revoked and a new determination made.[9] However, a determination can only be revoked under section 54G where the other responsible person is making the child available to the first responsible person. As Ms Chaucer was not making the children available to Mr Taunt in this case section 54G therefore cannot apply.
[9] Section 54G in Division 4, Subdivision C of the Assessment Act.
Section 54F of the Assessment provides that a responsible person’s existing percentage of care must also be revoked if the actual care of the child does not correspond with the existing percentage of care and, if a new percentage of care were determined, the responsible person’s cost percentage would change.[10]
[10] Section 54F in Division 4, Subdivision C of the Assessment Act.
The pattern of care of 92% to Ms Chaucer and 8% to Mr Taunt of [Child 1], and 96% to Ms Chaucer and 4% to Mr Taunt of [Child 2] does not correspond with the pre-existing percentage of care determinations recorded by Child Support of 50% to Ms Chaucer and 50% to Mr Taunt. A change in care to 92% to Ms Chaucer and 8% to Mr Taunt of [Child 1], and 96% to Ms Chaucer and 4% to Mr Taunt of [Child 2] would change each parent’s cost percentage pursuant to section 55C of the Assessment Act.
The existing care percentages of 50% to Ms Chaucer and 50% to Mr Taunt in respect of both children are therefore revoked pursuant to section 54F of the Assessment Act.
Issue 2: What are the new percentage of care determinations for Ms Chaucer and Mr Taunt?
Section 51 of the Assessment Act has no application in the circumstances of the 22 November 2022 care change.[11] The Tribunal observes however that there was evidence from the parents that family mediation was proposed but was not suitable. Mr Taunt told the Tribunal that he had taken legal advice about the commencement of proceedings to enforce the orders but at the date of the hearing, no such action or any other dispute resolution process had commenced or taken place. No police or court action had been taken in respect of the recovery of the children in accordance with the parenting orders. For completeness, the Tribunal would not have been satisfied that Mr Taunt had taken reasonable action to ensure the care arrangement had been complied with.
[11] Child Support Registrar v CMU23 [2024] FCA 109
The new care determinations are required under subsection 50(2). The Tribunal determines that the new percentage of care determinations are 92% to Ms Chaucer and 8% to Mr Taunt of [Child 1], and 96% to Ms Chaucer and 4% to Mr Taunt of [Child 2].
Issue 3: What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new care determinations?
There are no time limits to seek review of a care percentage determination. However, where an application for first review of an objection decision is lodged more than 28 days after the notice of the decision was served upon a person, and there is a subsequent decision that has the effect of varying the decision or substituting a new decision, the date of effect of the review decision is the day on which the application was made unless there are special circumstances that prevented the application from being brought within the 28-day period.[12]
[12] Section 95N of the Registration Act.
The term ‘special circumstances’ is not defined in the legislation. Section 4.1.8 of the Guide, albeit applicable to late objection applications, provides some guidance on circumstances that might amount to special circumstances. These include, for example, serious illness or accident, personal trauma or natural disaster, communication difficulties and reliance upon inaccurate or misleading information. These circumstances provide some guidance.
The Tribunal finds that the objection decision of 27 July 2023 was sent to Ms Chaucer and Mr Taunt by post on 27 July 2023. That letter set out the objection rights and the 28-day timeframe. The Tribunal further finds that Ms Chaucer brought her application for review on 9 July 2024. The application was therefore made more than 28 days after notice of the objection decision was given to Ms Chaucer. Given the Tribunal’s decision is to change the decision, changing the percentages of care to Ms Chaucer and Mr Taunt, the Tribunal considered whether there were special circumstances that prevented the objection being made within 28 days after the notice of the decision was given to Ms Chaucer.
Ms Chaucer’s explanation for the delay was that she was confused whether the care determination related to Mr Taunt or another person with whom she has a child support assessment in place. She also said that she was also engaged in court proceedings regarding her housing as she had gotten behind in her rent and she therefore had other circumstances to deal with.
The records of contact between Ms Chaucer and the Child Support officer show that on 17 January 2024, 1 February 2024, and 9 July 2024, Ms Chaucer stated that the care was reflected incorrectly. During the two latter calls she was advised that the next step available to her was a review by the then AAT. Ms Chaucer’s application comes almost 12 months after the objection decision was made and a number of months after she was reminded of her right to seek review. The Tribunal does not accept that the confusion Ms Chaucer experienced lends any support to a finding of special circumstances, and so finds there to be no special circumstances preventing Ms Chaucer from lodging a review within the required timeframe.
It follows that the percentage of care determinations of 92% to Ms Chaucer and 8% to Mr Taunt of [Child 1], and 96% to Ms Chaucer and 4% to Mr Taunt of [Child 2] will take effect from the date of her application to the Tribunal, that is 9 July 2024.
As the Tribunal has reached a different conclusion regarding the care percentages to be accorded to each parent to that reached by the objections officer in the decision under review, the Tribunal sets aside that decision and, in substitution, decides that the care percentage is 92% to Ms Chaucer and 8% to Mr Taunt of [Child 1], and 96% to Ms Chaucer and 4% to Mr Taunt of [Child 2] from 22 November 2022, with effect from 9 July 2024.
DECISION
The Tribunal sets aside the decision under review and substitutes a new decision that:
(a)In respect of [Child 1], the existing care percentage of care determinations of 50% to Ms Chaucer and 50% to Mr Taunt are revoked from 22 November 2022 and replaced with new percentage of care determinations of 92% to Ms Chaucer and 8% to Mr Taunt, with effect from 9 July 2024 pursuant to section 95N of the Child Support (Registration and Collection) Act 1988;
(b)In respect of [Child 2], the existing care percentage of care determinations of 50% to Ms Chaucer and 50% to Mr Taunt are revoked from 22 November 2022 and replaced with new percentage of care determinations of 96% to Ms Chaucer and 4% to Mr Taunt, with effect from 9 July 2024 pursuant to section 95N of the Child Support (Registration and Collection) Act 1988.
| Date(s) of hearing: | Wednesday, 20 November 2024 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | Self-represented |
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