Clements and Norris (Child support)

[2023] AATA 1185

Clements and Norris (Child support) [2023] AATA 1185 (16 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024969

APPLICANT:  Mr Clements

OTHER PARTIES:  Child Support Registrar

Ms Norris

TRIBUNAL:Member J Prentice

DECISION DATE:  16 March 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that percentage of care determinations with respect to the child are to be recorded as 43% to Mr Clements and 57% to Ms Norris from 3 November 2021, effective from 18 November 2021. The Tribunal also decides pursuant to Section 87AA of the Child Support (Registration and Collection) Act 1988 applies as if the reference to 28 days in that subsection were a reference to a longer period extending to 2 September 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review set aside and substituted

CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist

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. As relevant to this application, Mr Clements and Ms Norris are parties to a child support case registered with Services Australia – the Child Support Agency (the CSA) from 18 November 2021 in relation to [Child 1] (born December 2014) (the child). The application concerns the recorded care for [Child 1] utilised in calculation of the child support liability.

2. On 18 November 2021, Mr Clements applied to the CSA for registration of a child support case for assessment in respect of [Child 1] and advised that the care of the child was 44% to him and 56% to Ms Norris from 3 November 2021.

3. On 14 December 2021 the CSA decided to accept the application for assessment and to record a percentage of care of 42% for Mr Clements and a percentage of care of 58% to Ms Norris for the child from 3 November 2021, effective from the assessment start date of 18 November 2021.

1. On 2 September 2022, Mr Clements objected to this decision and, on 12 October 2022 a CSA objections officer disallowed the objection.

1. On 3 November 2022 Mr Clements lodged an application with the Tribunal seeking an independent review of the CSA’s decision stating:

   I don’t think, I know, it is incorrect.  I have explained this to child support and I was ignored.  I (the father) care for [Child 1] more than 162 nights pa.  This can be calculated at over 44% care.

1. The hearing of the application was held on 10 March 2023.  Mr Clements participated in the hearing by conference telephone and gave evidence on affirmation.   Despite several attempts, the second party, Ms Norris, was not able to be contacted for the hearing. and did not participate in the hearing. The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Clements and the documentary material provided by the CSA to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 206). Mr Clements provided additional relevant material after the hearing, marked Exhibit A, pages A1 to A13 which has also been taken into account. Copies of all documents were exchanged with each party.

3. There are a number of background circumstances of understandable importance to Mr Clements which were raised in evidence which are not relevant to the issues before the Tribunal. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

RELEVANT LEGISLATION

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 Registration Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The 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.

10.  The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy 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.

11.  Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

12.  A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless the CSA is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

13.  The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what has happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

14.  Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.

15.  Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Topic 2.2.1 of the Guide contains the following guidance in this regard:

Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

16. Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or section 50 of the Act.

17.  The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

18.  However, in certain circumstances, pursuant to section 51, parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing; that is, an interim care determination may apply.

ISSUES

19.  It follows that the issues to be determined by the Tribunal are as follows:

(a)What are the percentage of care determinations to apply in the assessment? And,

(b)From what date are the percentage of care determinations to apply?

CONSIDERATION

20.  Exhibit 1 records the following relevant conversations between Mr Clements and the CSA and Ms Norris and the CSA:

(a)On 22 November 2021 – the CSA called Ms Norris who told them that Mr Clements “started paying CS a few months ago privately” but she “asked him to stop”.  Ms Norris advised that “care is occurring in line with the current court order” which equates to six nights per fortnight.

(b)On 31 December 2021 – Mr Clements contacted the CSA and objected to their calculation of care of only 42% to him and stated he has 44.6% (page 83 of the hearing papers); the officer transferred Mr Clements to Objections.

(c)On 2 September 2022 – Mr Clements followed up on his objection to the care percentage decision and advised that his care of the child was “164 nights since 28 July 2020”.

(d)On 27 September 2022 – in response to a call from the CSA, Ms Norris advised that there had been court ordered care since 28 October 2021 and that care has not been occurring as per court order (a copy of which had been provided to the CSA).

21.  Relevant documentation and evidence provided to the CSA included as follows:

(a)On 23 October 2022 – statement by Mr Clements.

(b)On 28 October 2022 – third party statement by Mr Clements’s partner.

(c)Copy of Interim Court Orders dated 5 December 2022.

22.  Relevant additional documentation provided to the Tribunal includes as follows:

(a)On 3 November 2022 – statement by Mr Clements with his application to the AAT objecting to the CSA’s decisions; and a supporting statement from his partner.

(b)Copy of Mr Clements’s care diary from November 2021 to December 2022 inclusive.

(c)Following the hearing Mr Clements provided a copy of the court orders dated 28 October 2021 which the CSA had not included in the hearing papers.

23.  Mr Clements informed the Tribunal that the reason he has objected to the CSA’s decision is that he does not believe it accurately reflects what the original court orders intended and it also does not reflect what has actually occurred. 

24.  Mr Clements explained to the Tribunal that the court orders are not very precise so he decided to lodge a formal application for assessment with the CSA as he realised it would establish certainty with respect to the care arrangements and would minimise contact with the other party and therefore reduce potential conflict; and in addition would establish a routine for the child and pattern of care arrangements.

25.  In response to questions from the Tribunal, Mr Clements said that he had tried to object to the decision when he received it, however he has found it incredibly difficult to get in contact with his allocated CSA case worker and the other officers he talks to tell him that he must speak to the person handling his case.  Mr Clements told the Tribunal that he had rung many times and eventually he would get through to someone who invariably told him that his case manager was not available and they would leave a message for them to return his call.  However, Mr Clements says his calls were never returned.  Mr Clements advised the Tribunal that with four children he leads a very hectic life and he does not have time to hold for extended periods of time.  However on one occasion, in frustration at not having his calls returned, Mr Clements went to the local Centrelink office and asked for their assistance.  The officer tried to help and called the CSA for Mr Clements; they were transferred and then cut off.  Mr Clements acknowledges that it took some time for him to eventually lodge a formal objection to the decision but points out that it was not from lack of trying and he advised of his objection and disagreement with the CSA’s care percentage calculations immediately after they made their decision.  Mr Clements noted that he still finds it nearly impossible to get through to his case worker, who is never available.

26.  Mr Clements told the Tribunal that he is very frustrated with the whole process and very upset with how the CSA has handled his matter.  Mr Clements believes he has a minimum of 162 nights’ care – in line with what was intended by the court orders and wants an accurate record of the court ordered arrangements.  Mr Clements advised the Tribunal that he had provided a copy of the court orders to the CSA.

27.  The Tribunal notes that the court orders dated 28 October 2021 prescribe interalia that the child will:

… spend time and communicate with the Father, as follows:

a) Each Wednesday from the conclusion of school Wednesday (or 3pm) until the commencement of school on Thursday (or 9am) commencing 3 November 2021;

b) Each alternate week, from the conclusion of school Thursday (or 3pm) to the commencement of school on Monday (or 9am) commencing 4 November 2021;

c) During each of the school holidays, for half of the school holiday period as agreed, but in default of agreement, then as nominated by the Mother, to best align with any time that the Mother’s child [Child 2] is in the Mother’s care.

d) During the long summer holidays, for half of the holiday period

i)  From the conclusion of school (approximately 17 December 2021) until 12noon on 31 December 2021;

ii) From 12 noon on 14 January 2022 to 12 noon on 21 January 2022;

or as agreed but in default of agreement, then as nominated by the Mother, to best align with any time that the Mother’s child [Child 2] is in the Mother’s care.

e) Such further times as agreed between the parents from time to time in writing.

1. The Tribunal is satisfied that the court orders reflect care of six nights a fortnight with the exception of the school holidays, where each parent has half the holiday period.  In addition the court orders specify which weeks the child spends with Mr Clements during the “long summer holidays”.   The Tribunal calculates that there are 13 weeks of school holidays during the care period.  

2. The Tribunal has applied the court orders to the 2021–2022 calendar and calculates that in October 2021 it was anticipated that Mr Clements would have the following nights of care for the child:

   NOVEMBER 2021       3, 4, 5, 6, 7, 10, 17, 18, 19, 20, 21 and 24   (12)

   DECEMBER 2021       1, 8, 9, 10, 11, 12, 15,

   17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30                (21)

   JANUARY 2022          14, 15, 16, 17, 18, 19, 20            (7)

   FEBRUARY 2022        2, 3, 4, 5, 6, 9, 16, 17, 18, 19, 20, 23  (12)

   MARCH 2022             2, 3, 4, 5, 6, 9, 16, 17, 18, 19,20, 23, 30, 31  (14)

   APRIL 2022                1, 2, 3, 6, 17, 18, 19, 20, 21, 22, 23, 27  (12)

   MAY 2022                  4, 5, 6, 7, 8, 11, 18, 19, 20, 21, 22, 25  (12)

   JUNE 2022                1, 2, 3, 4, 5, 8, 15, 16, 17, 18, 19, 22, 25, 26, 27, 28, 29, 30       (18)

   JULY 2022                1, 13, 14, 15, 16, 17, 20, 27, 28, 29, 30, 31  (12)

   AUGUST 2022           3, 10, 11, 12, 13, 14, 17, 24, 25, 26, 27, 28, 31  (13)

   SEPTEMBER 2022      7, 8, 9, 10, 11, 14, 23, 24, 25, 26, 27, 28, 29, 30  (14)

   OCTOBER 2022          5, 6, 7, 8, 9, 12, 19, 20, 21, 22, 23 26  (12)

This is a total of 159 nights of care.

1. The Tribunal acknowledges that the vagaries of family life are such that care arrangements may change from time to time to accommodate unexpected commitments.  As noted in paragraph 15 of these Reasons, minor departures from the normal pattern of care will not usually constitute a change to the pattern of care.  As well, the court orders note  “… such further times as agreed by the parents from time to time in writing”.  The Tribunal is not aware of any further written agreement other than the court orders.

2. Having had regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from the date of the change of care pursuant to the court order, viz 3 November 2021. Further the Tribunal is satisfied based on the evidence that the pattern of care of the child was likely to be 159 nights to Mr Clements and 206 nights to Ms Norris. This equates to 43% care to Mr Clements and 57% care to Ms Norris (rounded pursuant to section 54D of the Act).

3. The Tribunal explained at hearing that in reviewing the CSA decision, the relevant legislation requires the Tribunal to put itself back in the place of the CSA as at 18 November 2021 (when Mr Clements lodged an application for assessment for the child) and work out what the expected pattern of care going forward was likely to be. The Tribunal’s role is to make that assessment as at 18 November 2021 and is not to take into account subsequent changes that were not in contemplation at that time. What was reasonably in contemplation as at 18 November 2021 as a result of the court orders may be quite different to what has subsequently occurred.

Issue 1 – What are the percentage of care determinations to apply in the assessment?

1. An application has been made by Mr Clements to be assessed in respect of the care of the child and the Tribunal has found that Mr Clements was to have had a pattern of care for the child during the care period and Ms Norris was to have had a pattern of care for the child during the care period.  Percentage of care determinations are therefore required pursuant to subsection 50(2). Based on the court orders dated 28 October 2021, the Tribunal has determined that Mr Clements’ percentage of care for the child during the care period was expected to be 43% and Ms Norris’s percentage of care during the care period was to be 57%.

Issue 2 – From what date are the percentage of care determinations to apply?

1. Pursuant to subsection 50(2) the Tribunal therefore determines a percentage of care of 43% for Mr Clements and a percentage of care of 57% for Ms Norris from 3 November 2021, effective from the date of registration of the child support case, 18 November 2021.

Conclusion

35.  As this is different to the decision of the objections officer, the decision under review will be set aside and a new decision substituted.

36. The Registration Act provides a mechanism for parents who are dissatisfied with a care percentage decision to seek a review of the decision by lodging a written objection. However, if an objection concerning care percentages is lodged more than 28 days after notice of the care percentage decision is given, section 87AA of the Registration and Collection Act provides that the date of effect in relation to variation to or new determination is the date of the objection. The effect of an objection decision can only be backdated if there are special circumstances which prevented the person from lodging their objection within 28 days.

37.  The CSA found that Mr Clements lodged his written objection on 2 September 2022, considerably more than 28 days after the decision they made on 14 December 2021.  However, the Tribunal notes that Mr Clements did contact the CSA on 31 December 2021 (within 28 days of the CSA decision) (page 83 of the hearing papers) and noted his objection to their decision and challenged their care percentage calculation.  The officer notes that they transferred Mr Clements to “Objections”.  Mr Clements was not advised at the time that he needed to lodge the objection in writing.

38.  The Tribunal further notes that the letter from the CSA to Mr Clements dated 14 December 2021 with respect to “Child Support Assessment Application Acceptance” (page 65 of the hearing papers) did not detail the care percentage decision and did not advise Mr Clements of his appeal rights with respect to the care percentage decision.  The paragraph “If you think this decision is incorrect ….” refers to whether he believes that he is “not a parent of the child” and refers to seeking legal advice.  He is not advised of his rights to object to the care percentage decision and/or to ask for a review.

39.  On the other hand, the same correspondence to Ms Norris (page 69 of the hearing papers) includes the paragraph: 

Call us if you think this decision is incorrect because information was not provided or taken into account; or the legislation has not been applied correctly. We will check the details and explain the decision. You can ask us to review the decision (we call this an objection) within 28 days from the date you receive this letter. For more information about how to object go to our website servicesaustralia.gov.au/reviewsandappeals

40.  The Tribunal notes that this “offer” was not made to Mr Clements, and this paragraph was not included in his version of the advice/correspondence.  The Tribunal further notes that Ms Norris is informed that she should “ask us to review the decision (we call this an objection)” and she is not advised that the review/objection needs to be put in writing.

41. Arguably Mr Clements was not properly notified of the decision and his review rights. In any event, taking all of these circumstances into account together, the Tribunal is satisfied that there are special circumstances which prevented Mr Clements from lodging his written objection within 28 days and the reference to 28 days in section 87AA of the Registration Act in this case is a reference to a longer period extending to 2 September 2022 and as such Mr Clements’ application for review was made within the required period.

OTHER MATTERS

42.  As already noted, 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, and the CSA then is tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision.

43.  !f not already notified, it is a matter for Ms Norris or Mr Clements if they wish to follow up any subsequent change of care with the CSA for a further decision by the CSA. Any such subsequent change is not before the Tribunal in relation to this application for review.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that percentage of care determinations with respect to the child are to be recorded as 43% to Mr Clements and 57% to Ms Norris from 3 November 2021, effective from 18 November 2021. The Tribunal also decides pursuant to Section 87AA of the Child Support (Registration and Collection) Act 1988 applies as if the reference to 28 days in that subsection were a reference to a longer period extending to 2 September 2022.