Dwight and Dwight (Child support)

[2019] AATA 2185

Dwight and Dwight (Child support) [2019] AATA 2185 (14 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016092

APPLICANT:  Mr Dwight

OTHER PARTIES:  Child Support Registrar

Ms Dwight

TRIBUNAL:Member K Buxton

DECISION DATE:  14 May 2019

DECISION:

The tribunal:

a.sets aside the decision under review and, in substitution, decides that from 10 September 2018 no change of care be recorded for [Child 1]; and

b.decides to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1988 that special circumstances existed, with the consequence that the date of effect of the tribunal’s decision in (a) is 10 September 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of effect of objection decision – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist – 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

1. Ms Dwight and Mr Dwight are the parents of [Child 1], born June 2013. A child support case is registered with the Child Support Agency (CSA). Ms Dwight was recorded as having 61% care and Mr Dwight was recorded as having 39% care of [Child 1]. On 10 September 2018 Mr Dwight informed the CSA that, from 6 September 2018 he would have a pattern of increased care in accordance with new Court orders. The CSA contacted Ms Dwight who provided information about the parents’ pattern of care for [Child 1]. On 10 September 2018 the CSA decided to change the recorded care for [Child 1] from 6 September 2018 to 57% with Ms Dwight and 43% with Mr Dwight.

2. On 14 November 2018 Ms Dwight objected to the CSA’s decision and, on 25 February 2019, a CSA objections officer allowed the objection and decided that, from 6 September 2018, care for [Child 1] was to be recorded as 62% to Ms Dwight and 38% to Mr Dwight. The objections officer also decided that Ms Dwight did not have special circumstances for objecting outside the 28-day time period and therefore applied the objection decision from 14 November 2018 when she lodged her objection.

3. Mr Dwight applied to the tribunal for review of the objection decision. At the hearing on 14 May 2019 the tribunal heard sworn evidence from Mr Dwight and Ms Dwight, given by telephone, and accepted into evidence the subsection 37(1) Statement and Documents provided by the CSA (Exhibit 1).

CONSIDERATION

1. The tribunal is first to determine whether there has been a care change for [Child 1]. The law relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act require a new determination of a percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination should be revoked. Subsection 54F(1) provides that the determination must be revoked in circumstances where a different cost percentage would apply if the care percentage determination was changed. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the child.

2. Mr Dwight is recorded as having told the CSA that [Child 1] was to be in his care during term time for five nights per fortnight, being each Monday night and every second Friday, Saturday and Sunday night, and for half of school holidays. [Child 1] has about 12 weeks of school holidays, and therefore 20 fortnights of term time each year. With half of the holidays amounting to 42 nights, and five nights of fortnightly care amounting to 100 nights, Mr Dwight’ evidence is consistent with a pattern of care of about 142 nights, or 38.9% across the year.

3. The tribunal notes that the Court-ordered care arrangement made on 6 September 2018 provides for some variations to ongoing care arrangements for the parents for special days, for week-about school holiday arrangements and for overseas travel, should the parents wish.

4. The Court orders appear to confirm the care arrangements already in place and that are reflected by the existing care percentages recorded by the CSA of 39% to Mr Dwight and 61% to Ms Dwight.

5. During the hearing, Mr Dwight had some difficulty in recalling exactly which days of the week he was previously having [Child 1] in his overnight care prior to the new Court orders. However, he did clearly recall that he would not see [Child 1] for nine consecutive nights of each fortnight during school term time. Ms Dwight gave evidence that, prior to the new Court orders, Mr Dwight had five consecutive nights of overnight care of [Child 1] for each fortnight of school term time, and half of the school holidays, together with some special nights and arrangements for each of the parents. She stated that the new orders also provide for Mr Dwight to have care of [Child 1] for five nights each fortnight, but now that is achieved by four consecutive nights in one week, and one night in the following week. Ms Dwight stated that school holiday and special nights of care had not really changed. She noted that the orders allow for both parents to have discretionary time overseas with [Child 1] but that, across a period of two years, or even five years, this would even out. Ms Dwight submitted that the previously recorded pattern of care of 39% to Mr Dwight and 61% to Ms Dwight has not changed, and is unlikely to change in the foreseeable future.

6. Mr Dwight accepted during the hearing that the pattern of his care of [Child 1] generally was for five nights per fortnight of term time care and half of the school holidays, plus some special days for both parents. However, he also stated that he prepared calendars (reproduced in Exhibit 1) showing that this pattern amounted to 158 nights each year. The tribunal has considered this evidence and cannot reconcile the number of nights claimed (158) with the likely pattern of care (around 142 nights, give or take).

10.  The question for the tribunal is whether there was a change in care for [Child 1] from 6 September 2018, as notified by Mr Dwight on 10 September 2018. Although Court orders were made on that day, those orders appeared to vary the days of Mr Dwight’s care but otherwise reflect the arrangements already in place for [Child 1], and already reflected in the care percentages recorded by the CSA. Therefore, the correct and preferable decision was to refuse to record a change in care for [Child 1] as a result of the notification by Mr Dwight on 10 September 2018.

11.  The CSA’s records show that an objection was lodged by Ms Dwight on 14 November 2018, which was more than 28 days after the date on which the care decision to which she objected was made, being 10 September 2018. Ms Dwight stated that she receives communications from the CSA through her MyGov account and, although she did not specifically recall receiving this letter, the tribunal is satisfied that the letter was sent to Ms Dwight electronically.

12. The CSA records show that the original decision was communicated in a letter stating that the parties had objection rights which could be exercised within 28 days. This is not, strictly, correct. The significance of Ms Dwight objecting outside the 28-day period would be that any new determination made as a result of the objection process would take effect, under section 87AA of the Child Support (Registration and Collection) Act 1988, from the date of the objection unless special circumstances existed. Therefore the tribunal’s decision will take effect only from the date of the objection unless special circumstances existed which prevented Ms Dwight from objecting within 28 days.

13.  In this case, Ms Dwight stated that she did not recall receiving notice of the decision of the CSA but that, even if she had, she would not have been concerned to note any change in care because the parents have a private arrangement for the collection of child support and, at that time, neither parent was collecting from the other. Ms Dwight stated that it was only when Mr Dwight applied for the case to be registered for collection with the CSA that she realised the recorded care percentages were incorrect. Ms Dwight stated, and the tribunal accepts, that as soon as she became aware that the recorded care for [Child 1] was incorrect she contacted the CSA to discuss an objection. The CSA’s records show that she telephoned on 13 November 2018 to enquire as to why the care percentages recorded differed from the Court order, and lodged her objection, providing further information on 14 November 2018.

14.  The tribunal is satisfied that Ms Dwight was not aware of the CSA’s decision, although it was accessible to her, but that she had legitimate reasons for not accessing the decision because neither parent was paying child support to the other as a result of their private arrangements. The tribunal is satisfied that Ms Dwight acted as soon as the matter came to her attention as a result of the application by Mr Dwight to register the child support case. The tribunal is satisfied that these matters, together, constituted a special circumstance that prevented Ms Dwight from objecting within the 28-day time frame.

15.  As the tribunal has reached a different decision as to Ms Dwight’s special circumstances to that under review, that decision is set aside and a decision substituted to reflect the findings of the tribunal, as there is to be no change in the recorded care for [Child 1], who is to continue to be recorded as being in the 61% care of Ms Dwight and the 39% care of Mr Dwight from 10 September 2018.  

DECISION

The tribunal:

a.sets aside the decision under review and, in substitution, decides that from 10 September 2018 no change of care be recorded for [Child 1]; and

b.decides to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1988 that special circumstances existed, with the consequence that the date of effect of the tribunal’s decision in (a) is 10 September 2018.