Crofts and Joannides (Child support)

[2021] AATA 465

Crofts and Joannides (Child support) [2021] AATA 465 (7 January 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC020047 & 2020/BC020078

APPLICANT:  Mr Crofts

OTHER PARTIES:  Child Support Registrar

Ms Joannides

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  07 January 2021

DECISION:

2020/BC020047

The Tribunal affirms the care percentage decision under review for the children [Child 1] and [Child 2].

2020/BC020078

The Tribunal sets aside the decision not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989 and substitutes a new decision that the date of effect of the objection decision is 21 February 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations not revoked – decision under review affirmed

CHILD SUPPORT – percentage of care objection – date of effect – whether there were special circumstances that prevented the objection being lodged in time – objection found to be lodged in time – 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 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 Crofts and Ms Joannides in respect of their children [Child 1] (born May 2010) and [Child 2] (born August 2013).  There has been a child support assessment in place since 8 January 2016 and Mr Crofts is the liable parent.

2. From 1 November 2018 the child support assessment reflected Mr Crofts as having 76 per cent care and Ms Joannides as having 24 per cent care of [Child 1] and [Child 2].

3. On 4 April 2019 Ms Joannides notified the Family Assistance Office of a change of care with Ms Joannides providing 51 per cent care and Mr Crofts providing 49 per cent care of the children from 21 February 2019.

4. On 28 June 2019 the Child Support Agency made the decision to apply the care as advised by the Family Assistance Office to the child support assessment and record that Ms Joannides provides 51 per cent care and Mr Crofts provides 49 per cent care of [Child 1] and [Child 2] from 21 February 2019 (the original decision).

5. On 24 June 2020 Mr Crofts objected to this decision and on 21 September 2020 the Child Support Agency allowed the objection and made the decision to refuse the change in care from 21 February 2019 (the objection decision).  The objection decision was applied by the Child Support Agency from 24 June 2020 and not from an earlier date.

6. On 13 October 2020 Mr Crofts applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision and on 20 October 2020 Mr Crofts applied for a review of the date of effect decision.

7. The Tribunal conducted hearings into both applications on 7 January 2021.  Mr Crofts and Ms Joannides gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (226 pages).

ISSUES

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

   [1] As it applied after 23 May 2018 and 1 July 2018.

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.

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] and [Child 2] 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 Crofts told the Tribunal that the care arrangements had been complicated, however, in January 2019 he and the children moved to [City 1] while Ms Joannides had remained [in City 2] about one hour away.  He said the children had started at a new school in 2019, [School 1], so it was not possible for the parents to have shared care.

2. Mr Crofts said after the move to [City 1] he initially thought he would have 100 per cent care of the children but Ms Joannides began having increased care.  He said by mid-2019 Ms Joannides was having care every second weekend for two nights and some holiday care.  Mr Crofts said as a result he had stopped referring to his care as 100 per cent care.

3. Mr Crofts said he had remained the primary care giver for the children and felt Ms Joannides was having around 24 per cent care.  He reiterated that care had never been 50-50 shared care.

4. The Tribunal notes in evidence from the Child Support Agency a letter from the Acting Principal of [School 1] dated 26 June 2020.  The letter confirms that [Child 1] and [Child 2] are attending the school and commenced on 20 February 2019.

5. Ms Joannides told the Tribunal she agreed with Mr Crofts about the level of care for [Child 1] and [Child 2].  Ms Joannides said there was a period in April 2019 when care changed but this was only minor.  Ms Joannides also said that she had care of two nights every fortnight as well as care during the school holidays and her care was more consistently around 24 per cent.  She added that Mr Crofts had never had 100 per cent care of the children.

6. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences.  The parents agree the pattern of care has remained broadly consistent at least since Mr Crofts moved from [City 2] to [City 1] in around January 2019.  As such the Tribunal is satisfied there has not been a change to the existing pattern of care.

Care percentage decision

1. The Tribunal finds that no change in care took place on 4 April 2019, therefore, the existing care determinations should not be revoked.

Date of effect of care percentage decision

1. An objection to a care percentage decision does not have to be lodged within 28 days, however, if it is lodged outside the 28-day period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the R&C Act).

2. The Child Support Agency may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days was a reference to such longer period as determined to be appropriate.

3. In this case the Child Support Agency did not find special circumstances existed and declined to make such a determination.  As a consequence the date of effect of the objection decision was 24 June 2020, which is the date the Child Support Agency states that Mr Crofts lodged his objection to the original decision.

4. A decision by the Child Support Agency to either make a determination under subsection 87AA(2) or not to make such a determination is separately reviewable by the Tribunal. Mr Crofts has also applied to the Tribunal for review of the date of effect decision made by the Child Support Agency under subsection 87AA(2) of the R&C Act.

5. Mr Crofts was advised about the outcome of the original decision in a letter from the Child Support Agency dated 28 June 2019.  Mr Crofts told the Tribunal he did not recall seeing this particular letter but had been in frequent contact with the Child Support Agency in 2019 in an attempt to resolve ongoing issues around care of the children.  He said this was a frustrating process and he had received little support from the Child Support Agency.  Mr Crofts said he did not feel like he was getting anywhere with the Child Support Agency despite expressing his view on numerous occasions that he had the majority of care.  Mr Crofts said in the end he had simply given up and focused on looking after the children.

6. The Tribunal notes in evidence from the Child Support Agency that during a conversation with a child support officer on 16 July 2019, Mr Crofts advised that he had the majority care of both [Child 1] and [Child 2] from 9 January 2019.  Mr Crofts also stated at that time the children were enrolled at [School 1] and so were in his care.  The Tribunal also notes that in further conversations with child support officers on 7 August 2019 and 18 September 2019 Mr Crofts again expressed his view that care of the children was incorrect.  The record of the conversation on 18 September 2019 indicates that Mr Crofts explicitly disagreed with the decision that the parents had 50-50 shared care.

7. The Tribunal finds that the conversation Mr Crofts had with the Child Support Agency on 16 July 2019 could reasonably be treated as an objection to the original decision made on 28 June 2018.  Given Mr Crofts objected less than 28 days after he was served with notice of the original decision, the Tribunal is satisfied that consideration of any special circumstances is not required in this case as the objection was made within the required timeframe.

8. The Tribunal therefore sets aside the decision made by the Child Support Agency not to exercise the discretion provided for in subsection 87AA(2) of the R&C Act.

DECISION

2020/BC020047

The Tribunal affirms the care percentage decision under review for the children [Child 1] and [Child 2].

2020/BC020078

The Tribunal sets aside the decision not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989 and substitutes a new decision that the date of effect of the objection decision is 21 February 2019.