Cornell and Wright (Child support)

[2017] AATA 2861

Cornell and Wright (Child support) [2017] AATA 2861 (15 November 2017)

DIVISION:  Social Services and Child Support Division

REVIEW NUMBER:  2017/SC012142

APPLICANT:  Mr Cornell

OTHER PARTY:  Child Support Registrar

Ms Wright

TRIBUNAL:Member J Cuthbert

DECISION DATE:  15 November 2017

DECISION

The decision under review is affirmed.

Member J Cuthbert

CATCHWORDS
Child Support – Percentage of care – Care arrangement – Reasonable action for compliance – Special circumstances – Interim determination not applied – Decision under review affirmed

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 Cornell and Ms Wright are the parents of [Child 1] (born 2005). There has been a child support assessment made by the Department of Human Services – Child Support (the Department) since 2013. Prior to February 2017 the assessment was based on Ms Wright having a care percentage of 51% and Mr Cornell having a care percentage of 49%.

2. On 3 February 2017 Ms Wright notified the Department that [Child 1] had not been in Mr Cornell’s care since an apprehended violence order (AVO) was put in place. She said that [Child 1] would no longer be staying with Mr Cornell.

3. A decision was made on 24 March 2017 to vary the care percentages used in the assessment so that from 29 January 2017 Ms Wright has a care percentage of 100% and Mr Cornell a care percentage of 0%.

4. Mr Cornell lodged an objection to that decision on 6 April 2017. His objection was disallowed on 5 June 2017.

5. On 17 July 2017 Mr Cornell made an application to the tribunal for a review of the objection decision.

6. The application was heard on 15 November 2017. Mr Cornell and Ms Wright both attended the hearing by telephone. In addition to oral evidence, the tribunal had regard to documents provided by the Department (folios 1 to 494).

ISSUES

1. The issues the tribunal must decide are:

   ·whether there was a change to the care pattern for [Child 1] from 29 January 2017 such that the care percentages used in the child support assessment should be revoked; and if so

   ·the new care percentages which apply and the date from which they take effect.

CONSIDERATION

1. In the usual course of events, the Department (acting for the Child Support Registrar) makes child support assessments using a statutory formula in Part 5 of the Child Support (Assessment) Act 1989 (the Assessment Act). The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” and a “cost percentage” for each parent in relation to each child.

2. The Department makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and if there is a change to the care pattern which means that an earlier determination should be revoked.

3. Sections 49 and 50 require the Registrar, or this tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Care percentages must be revoked under section 54F or section 54G of the Assessment Act if:

   ·the care of a child that is actually taking place does not correspond with a person's existing percentage of care for the child; and

   ·the pattern of care for the child has changed such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply; or

   ·a parent who was to have “regular care” of a child has less than regular care.

4. There is no dispute that prior to late January 2017 Mr Cornell and Mr Wright cared for [Child 1] substantially equally in a week about arrangement set out in a parenting plan made in April 2014. Mr Cornell does not dispute that he has not had overnight care of [Child 1] since 29 January 2017. He initially contended that any change in care occurred on 5 February 2017 when he was next to have care of [Child 1], rather than from 29 January 2017. However, at the hearing he acknowledged that a provisional AVO issued on [a date in] February 2017 prevented him from having contact with [Child 1].

5. The tribunal is satisfied that there was a change to the care pattern for [Child 1] following a police report made by Ms Wright and [Child 1] on 29 January 2017 which led to the AVO being made. The tribunal is satisfied that since 29 January 2017 the actual care of [Child 1] changed so that Ms Wright has a care percentage of 100% and Mr Wright has a care percentage of 0%.

6. However, the decision to revoke existing care percentages is subject to section 51 or 52 of the Assessment Act which require two care percentages to be determined (those under the care arrangement as well as the actual care taking place) in certain circumstances. If either of those sections applies, a care percentage under a care arrangement is taken to continue to apply for an interim period. Section 51 applies if there is a care arrangement in place and a parent seeks to enforce the care arrangement and section 52 applies if a parent seeks to make a new care arrangement.

7. Sections 53 and 54C of the Assessment Act provide that if section 51 or 52 applies, the percentage of care based on the new arrangement applies for an interim period (generally 14 weeks, but up to 26 weeks if special circumstances exist). Subsection 54C(5) provides the Registrar with a discretion to end an interim care period if satisfied that “special circumstances” exist in relation to a child.

8. The tribunal notes that Ms Wright commenced parenting proceedings in the Federal Circuit Court in February 2017. Mr Cornell has lodged a cross-application seeking sole care of [Child 1] and the matter has been transferred to the Family Court. Mr Cornell is also defending the AVO matter which is to be heard in December 2017. On 8 March 2017 the terms of the AVO were also altered so that Mr Cornell is no longer prevented from having contact with [Child 1].

9. The term “care arrangement” is defined in section 3 of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act). It includes a written agreement and a parenting order under the Family Law Act 1975 (the Family Law Act) or a parenting plan. The tribunal finds that the parenting plan made in 2014 is a “care arrangement” and that Mr Cornell took reasonable action to make a new care arrangement by lodging a cross-application in the parenting proceedings brought by Ms Wright. An interim period of at least 14 weeks would therefore apply from 29 January 2017 under section 52 of the Assessment Act unless there are special circumstances in relation to the care of [Child 1] for which the interim period should be ended.

10. The tribunal finds that the AVOs which prevented Mr Cornell from having contact with [Child 1] provided special circumstances for which the interim period should be ended from 29 January 2017. Although Mr Cornell contends that the police only issued the provisional AVO after pressure from Ms Wright and has stated that he is actively defending the matter, the tribunal finds that the provisional and interim AVOs provide some evidence of inappropriate behaviour by him that led to the change to the care pattern.

11. The tribunal notes that even if the tribunal had determined that section 52 had applied in this case, Mr Cornell lodged his application for review to this tribunal more than 28 days after being sent notice of the objection officer’s decision of 5 June 2017. Mr Cornell acknowledged that he had arranged to receive notices from the Department by electronic means.

12. The Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) provides a mechanism for parents who are dissatisfied with an objection decision to seek a review of a care percentage decision by this tribunal. However, if an application for review of an objection decision concerning care percentages is lodged more than 28 days after notice of the objection decision is given, section 95N of the Registration and Collection Act provides that the date of effect in relation to any successful application is the date of the application. The effect of a decision by the tribunal can only be backdated if there are special circumstances which prevented the person from lodging the application for review within 28 days.

13. Although Mr Cornell told the tribunal that he was overseas from 26 June to 13 July 2017 and was very busy before he left, he acknowledged that he didn’t realise the communications he received by email advising him to check his MyGov account were significant. He told the tribunal that he thought that he would sort it out when he got back. The tribunal is satisfied that there are no special circumstances which prevented Mr Cornell from making his application for review to the tribunal within 28 days of 5 June 2017. Even if his application to the tribunal had been successful, the date of effect of the tribunal’s decision would have been 17 July 2017, more than 24 weeks after the care pattern changed.

DECISION

The decision under review is affirmed.