Devlin and Child Support Registrar (Child support)

[2018] AATA 4154

Devlin and Child Support Registrar (Child support) [2018] AATA 4154 (19 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC014281

APPLICANT:  Mr Devlin

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  19 September 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – change in the likely pattern of care – decision to revoke existing determination and make a new determination – 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. This review is about a change to the percentage of care determination for Mr Devlin in respect of the child [Child 1].

2. Mr Devlin and [Ms A] are the parents of [Child 1] (born February 2013) and Mr Devlin is the liable parent under the assessment.  From 30 March 2015 the child support assessment reflected Mr Devlin as having 2 per cent care and [Ms A] as having 98 per cent care of [Child 1].

3. On 31 August 2017 Mr Devlin notified the Department of Human Services, Child Support (the Child Support Agency) of a change in care stating that from 1 January 2017 he had 39 nights care of [Child 1] and expected to have 52 nights care in the 12 month period.

4. On 1 December 2017 the Child Support Agency made the decision to reflect that Mr Devlin had 9 per cent care of [Child 1] and [Ms A] 91 per cent care from 1 January 2017 but with effect from 31 August 2017.

5. On 14 March 2018 Mr Devlin objected to this decision and 12 May 2018 the Child Support Agency allowed the objection in part and made the decision to accept that Mr Devlin had 13 per cent care of [Child 1] and [Ms A] had 87 per cent care from 1 January 2017.

6. As there were no special circumstances that prevented Mr Devlin from objecting earlier the Child Support Agency applied this decision from 14 March 2018 (the date of objection).

7. On 7 June 2018 Mr Devlin applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 21 August 2018.  Mr Devlin attended the hearing in person and gave sworn evidence.  The Tribunal wrote to [Ms A] on 3 July 2018 inviting her to be added as a party to the application for review but she did not respond and so did not participate in the hearing.

9. The Child Support Agency provided the Tribunal and Mr Devlin with papers relevant to the matter (199 pages).  Mr Devlin provided additional documents prior to the hearing (A1-A20).  Mr Devlin also provided further documents on the day of the hearing, however, these were not accepted as evidence consistent with the Tribunal’s Child Support Review Directions.

10. Following the hearing the Tribunal submitted a request to the Child Support Agency under section 95G of the Child Support (Registration and Collection) Act 1988 (the Act) for documents pertaining to the conversation between the Child Support Agency and Mr Devlin at the time he notified of a change in care (31 August 2017).  An audio file of this conversation was received by the Tribunal on 20 September 2018.

ISSUES

1. The statutory provisions relevant to this review are contained in the Act.

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 the likely care is 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 a new care determination 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] which requires existing percentages of care to be revoked and new care determinations to be made; and if so,

   ·       from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Devlin told the Tribunal that care of [Child 1] was supposed to be based on an agreement reached with [Ms A] that he would have his daughter for two nights per week whenever he was home from work.  He said this was initially supposed to be on a Friday and Saturday night whenever he was home but then [Ms A] changed her mind and said care would be two nights a week based on his work roster of two weeks on and two weeks off.

2. Mr Devlin explained that he was a [occupation] and worked on a fly-in and fly-out (FIFO) basis.  He said he was usually on a two week on and two week off roster but this roster changed from time-to-time particularly when he was required to work overtime.

3. Mr Devlin said that following separation in 2015 it was a very turbulent year and he was working out of [a regional area] and so a care routine was not established even though [Ms A] had agreed to two nights per week whenever he was home.  He said in 2016 he was away a great deal working and also travelling but in 2017 he tried to arrange his schedule so he could spend more time with [Child 1] and adhere to a regular care pattern.

4. The Tribunal notes in evidence provided by Mr Devlin a copy of an email from [Ms A] dated 11 October 2015.  The email states, in part, “Friday and Saturday are set nights for you, for sleepovers (if you prefer 2 different ones thats fine).”

5. Mr Devlin said on a worse-case scenario, based on the agreement with [Ms A], he should have care of [Child 1] on four nights every 28-day work cycle.  This equated to care of his daughter 52 nights a year at the very least.  He said sometimes he had additional care of [Child 1].  He said he was very frustrated with the care arrangements because he felt [Ms A] was blocking his attempts to spend time with his daughter.  He said while [Ms A] told the Child Support Agency she was flexible about care of [Child 1] this was not actually the case.  Mr Devlin said he did not think [Ms A] was being fair about the care arrangements and was now seeking to obtain increased care of [Child 1] through court.

6. Mr Devlin said on 31 August 2017 he contacted the Child Support Agency and told them about his increased care of [Child 1].  Mr Devlin said based on his calendar of care he calculated he had care of [Child 1] for 53 nights for the period from 20 January 2017 to 20 January 2018.  Mr Devlin said the Child Support Agency was incorrect in calculating care for the 12 months from 1 January 2017 because he did not have care at the beginning of January when he was working and so it did not make sense to calculate care from that date.  Mr Devlin said he advised the Child Support Agency that care was to be considered from 20 January 2017 and was confident the change of care had commenced from this date.

7. Although [Ms A] did not participate in the hearing, the Tribunal notes she disputed the change of care as advised by Mr Devlin.  According to evidence provided by the Child Support Agency, [Ms A] said there was no pattern to the care Mr Devlin had of [Child 1] and it was less than 52 nights per year.  [Ms A] also provided the Child Support Agency with a care calendar for January 2017 to February 2018.

8. The Tribunal examined the care calendar provided to the Child Support Agency by Mr Devlin.  It shows the following:

Month	Dates	Total Nights
January (2017)	20, 21, 22, 23, 24, 25, 27, 28	8
February	1, 3, 4, 8, 10, 11, 12	7
March	3, 4, 17, 18, 21, 24, 25	7
April	21, 22, 23	3
May	19, 20	2
June	23, 30	2
July	1, 7, 8, 14, 15, 21, 22	7
August	25, 26	2
September	8, 9	2
October	20, 21	2
November	17, 18, 24, 25	4
December	15, 16, 17	3
January (2018)	12, 13, 19, 20	4

1. Mr Devlin acknowledged that his care of [Child 1] did not follow a pattern of four nights every 28-day work cycle throughout 2017.  He explained this was because care was supposed to be two nights a week whenever he was home from work but [Ms A] often changed her mind or withheld care.  Mr Devlin said from January to March he had additional care of [Child 1] because his father was here from [Country 1] and then in April, May and June he was working more overtime and had less care.  He said in July he lost his job and was able to have more care of [Child 1] but that was when [Ms A] decided to change care to four nights every 28 days.  Mr Devlin said he then went to [Country 1] to see his family for about five weeks and returned in mid-October to a more regular pattern of care.

2. In order to determine the date from which care changed, the Tribunal reviewed the audio recording of the conversation between the Child Support Agency and Mr Devlin on 31 August 2017.  When asked by the child support officer to nominate a date that care changed, Mr Devlin states:

   I think its 1^st of January then.  It just makes a calendar year…will make things more simple.  That’s how I’ve been calculating anyway.

3. Mr Devlin then goes on to advise the child support officer since 1 January 2017 he has already had 39 nights care and is confident he will have more than 52 nights.

4. Based on this evidence the Tribunal is satisfied that care changed on 1 January 2017 and it is appropriate the new care period should commence from that date.

5. The Tribunal notes the care calendar provided by [Ms A] to the Child Support Agency is consistent with that provided by Mr Devlin for the months of April, May, June, August, October, November  and December in 2017 and January in 2018.  According to her care calendar [Ms A] calculates that Mr Devlin had 41 nights care of [Child 1] in 2017 although the Tribunal notes that [Ms A] has omitted the month of September in her calendar.  Given the consistency between the two care calendars from August onwards, the Tribunal finds it reasonable to conclude that this is simply an oversight on the part of [Ms A].

6. Mr Devlin told the Tribunal he felt [Ms A]’s records were not as accurate as his for the first few months of the year as she only started putting effort into her care calendar after he contacted the Child Support Agency.

7. Based on the evidence provided by Mr Devlin, the Tribunal accepts the care calendar provided by Mr Devlin and is satisfied that he had 49 nights care of [Child 1] in 2017.  The Tribunal therefore finds that Mr Devlin provides 13 per cent care of [Child 1] and [Ms A] provides 87 per cent care from 1 January 2017.

8. From 30 March 2015 the child support assessment reflected Mr Devlin as having 2 per cent care of [Child 1].  The cost percentage is nil for percentages of care from nil to less than 14 per cent.  This means for Mr Devlin there has been no change to the cost percentage.

9. Mandatory revocation of care percentages only applies under section 54F of the Act where the new care percentage determination would change the cost percentage.  Mandatory revocation of care percentages only applies under section 54G of the Act where one of the parents who was to have at least regular care of the child under the existing determination now has no care or less than regular care despite the child being made available by the other parent.  In this case section 54F and section 54G of the Act do not apply.

10. Section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determination affects the care percentage but not the cost percentage, and certain other conditions are met.

11. In this regard, the Explanatory Memorandum to the Bill for the Amending Act states, “This discretion allows the Registrar to maintain accurate records of changes in care and, because of the alignment provisions, this assists in keeping accurate records for FTB and child support.”

12. In relation to discretionary revocation, chapter 2.2.2 of the Child Support Guide can also guide the Tribunal in its deliberations.  It states as follows:

    Whether the Registrar revokes an existing care percentage determination under section 54H will depend on the circumstances of the case. If there is clear evidence of a change in care and the Registrar is able to determine new care percentages for the parties to an assessment, the Registrar should revoke the existing care percentage determination, even though the cost percentage is not affected. This helps to ensure there is an accurate record of the care history on a case. However, if the evidence indicates that a change in care has occurred that would not affect the cost percentage, but the evidence is not conclusive as to the precise care percentages, the Registrar may decide not to revoke the existing determination. This discretion enables the Registrar to decide not to proceed with unnecessary investigations to determine precise care percentages that would not make a material difference to the assessment.

13. As section 54H of the Act is met, the Tribunal finds the previous determination can be revoked and replaced with the pattern of care that took place so the records are accurately reflected.

New care percentage decision

1. Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Mr Devlin and [Ms A].

2. For the reasons outlined above the Tribunal finds that Mr Devlin provides 13 per cent care and [Ms A] provides 87 per cent care of [Child 1] from 1 January 2017.

Date of effect of new care percentage decision

1. The Tribunal finds that Mr Devlin first notified the Child Support Agency of the change in care on 31 August 2017, which is more than 28 days after the change occurred.  Ordinarily this means the new care determination would be made from 31 August 2017 (the date of notification).

2. 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 Act).

3. 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 Act that subsection 87AA(1) applies as if the reference to 28 days were a reference to such longer period as determined to be appropriate.

4. In this case the Child Support Agency did not find special circumstances existed and declined to make such a determination. 

5. The Tribunal must also consider the implication of the late lodgement of the objection.  At hearing the Tribunal discussed with Mr Devlin what special circumstances may have prevented him from objecting to the original decision sooner.  The Tribunal, like the Child Support Agency, was unable to find there were special circumstances which prevented Mr Devlin from objecting within the relevant 28 day period.  In making such a finding, the Tribunal notes that even if special circumstances existed it would not impact the assessment given the cost percentage is nil for percentages of care from nil to less than 14 per cent.

6. Accordingly, the date of effect of the Tribunal’s decision is the date Mr Devlin lodged his objection, being 14 March 2018.

DECISION

The decision under review is affirmed.