Davenport and Hoover (Child support) - [2022] AATA 5045

Davenport and Hoover (Child support) [2022] AATA 5045 (8 December 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/HC024666
APPLICANT:  Ms Davenport
OTHER PARTIES:  Child Support Registrar
Mr Hoover

TRIBUNAL:Member M Martellotta
DECISION DATE: 8 December 2022
DECISION:

The tribunal sets aside the decision under review and in substitution decides that as from 16 June 2021 the care percentage for Ms Davenport is 100% and for Mr Hoover 0%. The date of effect of the tribunal’s decision is 17 June 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – 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 – no special circumstances exist – tribunal declines to make a determination under subsection 87AA(2)

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

This review concerns the level of care that is to be recorded for child support purposes. Ms Davenport and Mr Hoover are the parents of a child. There has been a child support assessment in place for that child since 25 January 2021. The care percentages recorded in relation to the assessment was that Ms Davenport had 72% care and Mr Hoover had 28% care.
On 13 July 2021 Ms Davenport contacted the Child Support Agency (the Agency). She advised that since 14 June 2021 she had 100% care of the child. On 14 September 2021 the Agency decided not to change the care recorded in the assessment. On 17 June 2022 she lodged an objection to the original decision made on 14 September 2021.
Her objection was disallowed on 12 August 2022. On 15 September 2022 she lodged an application with the tribunal. The tribunal held a hearing on 24 November 2022. Ms Davenport attended the hearing by telephone. She presented her submissions and provided evidence.
Mr Hoover did not participate in the application. He did not respond to correspondence regarding the application. On the day and time of hearing, attempts to contact Mr Hoover were not successful.
The tribunal deferred making a decision so as to provide Ms Davenport the opportunity to provide further documents. The tribunal has considered these documents. Other evidence before the tribunal included the Agency file which it had copied and provided to the parties and to the tribunal.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) the Child Support (Registration and Collection) Act 1988 (the RC Act) and the Administrative Appeals Tribunal Act 1975.
The issues which arise in this case include whether:
·the existing care determinations are be revoked; and if so,
·whether a new determination of care percentage should be made; and if so,
·what is the date of effect of the tribunal’s decision?

CONSIDERATION OF EVIDENCE AND STATUORY PROVISIONS

Issue 1 – Should the existing care determination be revoked and if so from when?

Sections 49 and 50 of the Act require the Agency to determine a person’s percentage of care where a person has had, or is likely to have, a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.
Section 54A of the Act sets out that the actual care of a child that a person has or is likely to have may be worked out from the number of nights the child spends in their care. A new percentage of care can be determined by the Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.
In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to the Agency of a change of care arrangement. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same.
Ms Davenport submitted that the Agency decision was incorrect because there had been change in care in June 2021. She provided the following evidence:
a)She and Mr Hoover separated in early 2021.
b)They had a verbal agreement regarding care of their child which resulted in the initial care percentages of 72% and 28%.
c)Mr Hoover’s adherence to the agreement was inconsistent but overall, care was taking place in accordance with the care determination. His behaviour, however, escalated to a point where there was an incident on 16 June 2021. As a result, Ms Davenport obtained a police family violence order. That order was not contested, and it remained in place for 12 months.
d)Whilst nothing in the order prevented Mr Hoover from making contact to continue with the care arrangements, he did not make any initial attempts to reinstate care. She was willing for him to continue to provide care as per their agreement.
e)In July 2021 Mr Hoover made contact through Family Relationships Australia. Ms Davenport was willing to attend mediation; however, due to the history of family domestic violence, mediation was not assessed as appropriate. Subsequently, in May 2022 Mr Hoover initiated proceedings in the Family Court seeking orders for care.
f)The current situation is that Mr Hoover is exercising supervised contact in the context of current proceedings.
g)Since the incident on 16 June 2021 Mr Hoover has not had any overnight care of the child.
The tribunal asked Ms Davenport to clarify the date the change in care occurred. The Agency records note that she initially stated it was 14 June 2021 and later in 2022 she advised it was in April 2021. Ms Davenport stated that there was a lot happening at the time, but she was certain the correct date was 16 June 2021 as the incident occurred a week before the police family violence order was issued on 23 June 2021. She said she did not immediately advise the Agency about the change in care because she wanted to see if Mr Hoover would make contact to resume the care arrangement.
There is no evidence from Mr Hoover regarding the change in care event detailed by Ms Davenport. As noted, he did not attend the hearing and the Agency file also shows that he did not respond to their contacts regarding the change in care reported by Ms Davenport.
Documents and orders provided by Ms Davenport are consistent with her account of events. The tribunal accepts her evidence. The tribunal is satisfied that following an incident which occurred on 16 June 2021 there was a change in care event, namely from that date Mr Hoover did not continue to have care in accordance with the verbal agreement. The tribunal is satisfied and finds that from 16 June 2021 Ms Davenport’s care increased from 72% to 100% and Mr Hoover’s care decreased from 28% to 0%.
The tribunal is required first to consider if revocation of the existing care determination is to be made pursuant to section 54G of the Act. The conditions for revocation are as follows:
·a parent was to have at least regular care (14%) of the child based on the existing care determination under section 50, but they have had no actual care or less than regular care of the child, despite the other parent making the child available;
·the other parent’s existing percentage of care was determined under section 50; and
·the other parent notified the Registrar or the Secretary within a reasonable time that the parent with the reduced care has no care or less than regular care.
In this case the tribunal is satisfied that the conditions of section 54G are met. Mr Hoover was to have at least regular care based upon the existing care determination made under section 50 of the Act, however from 16 June 2021 he had no actual care of the child despite Ms Davenport making the child available. As Ms Davenport notified the Agency of the change in care on 13 July 2021 which is within 28 days from the change in care event, the tribunal is satisfied that this was a reasonable time.[1]
[1] Explanatory Memorandum to the Bill for the Child Support and Family Assistance Legislation Amendment(Budget and Other Measures) Act 2010 (the Amending Act) states that: “Generally, a reasonable period will be if the Registrar or Family Assistance Secretary is notified within 28 days of the other responsible person becoming aware that the first responsible person never established the pattern of at least regular care, or that that person ceased their the previously established pattern of care.”
The date of revocation is determined by subsection 54G(2). In this case the tribunal is satisfied that Mr Hoover did establish a pattern of care in accordance with the first care determination but that ceased as of 16 June 2021. This means that the existing determination is to be revoked pursuant to subparagraph 54G(2)(b), namely the end of the day before the 16 June 2021.
The tribunal concluded that the existing determination of care is revoked as of 15 June 2021.

Issue 2 – Should a new determination of care percentage be made and, if so, from what date?

The tribunal is satisfied that this is not a case in which an interim care determination (section 51 of the Act) is to be made. Subsection 54B(2) of the Act provides where a care determination is made because a previous care determination has been revoked, then the new care determination takes effect the day after the revocation of the previous determination.
In this case, this means the new care determination of 100% care to Ms Davenport[2] and 0%[3] care to Mr Hoover commences from 16 June 2021.

Issue 3 – What is the date of effect of the tribunal’s decision?

[2] Section 50 of the Act

[3] Section 49 of the Act

Where an objection or application for review is made more than 28 days after notification of a decision, this will give rise to the date of effect rules. This is relevant in this case because Ms Davenport was notified of the original care decision by notice dated 14 September 2021; however, she did not object to that decision until 17 June 2022 – a period greater than 28 days.
Section 87AA of the RC Act has application where an objection is lodged outside 28 days and the objection is allowed. The general rule is that in such a case the change in care determination takes effect only from the date the objection was lodged unless the decision maker decides that special circumstances prevented the person from lodging their objection within 28 days after notification of the original decision.
In this case, however, the objection was disallowed and as such the issue of whether the discretion under section 87AA should be exercised was not considered by the objections officer. The tribunal concludes that the date of effect of the tribunal’s decision is to be made under subsection 43(6) of the Administrative Appeals Tribunal Act 1975. This section allows the tribunal to specify a date from which its decision will take effect.
In this matter, when considering the relevant date of its decision, the tribunal has considered whether special circumstances prevented Ms Davenport from making her objection and so in this regard, it’s approach on this issue is informed by section 87AA of the RC Act.[4]
[4] Kelvin Walker v Secretary, Department of Social Security [1997] FCA 589 cited in Roach and Child Support Registrar (Child support) [2021] AATA 1289 (31 March 2021)
At hearing, Ms Davenport told the tribunal that she did not think to follow up an objection until June 2022 because it was not a priority for her given everything else that was happening. Further, it was probably only after she received legal advice in response to Mr Hoover’s Family Court application that she was advised to follow this up with the Agency.
Special circumstances is not defined in the legislation. The Child Support Guide[5] suggests that:
In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date.
[5] 4.1.8
In this matter the tribunal is not satisfied that special circumstances are established such to warrant a date of effect earlier than the date of Ms Davenport’s objection. The tribunal determines that the date of effect of this decision is 17 June 2022.

DECISION