Eastwood and Orton (Child support)

[2023] AATA 3293

Eastwood and Orton (Child support) [2023] AATA 3293 (9 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC025828

APPLICANT:  Mr Eastwood

OTHER PARTIES:  Child Support Registrar

Ms Orton

TRIBUNAL:Member M Martellotta

DECISION DATE:  9 August 2023

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – decision under review affirmed – whether special circumstances prevented objection being lodged on time – no special circumstances

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. The applicant and second party are the parents of a child for whom a child support assessment is registered.

2. Services Australia (Child Support) had recorded care percentages from 13 August 2021 of 100% care to the applicant and 0% care to the second party. On 12 December 2021 a change in care notification was made by the second party – namely, that her care would increase to 50%. On 15 December 2021 the applicant advised Child Support that the second party would commence to have shared care from 10 December 2021.

3. On 17 December 2021 Child Support made an original decision that from 10 December 2021 the applicant and second party had shared care.

4. On 5 December 2022 the applicant lodged an objection to that decision, advising that he retained 100% care from August 2021. The second party disagreed advising that shared care continued until about March 2022.

5. On 14 February 2022 Child Support made a decision in relation to the applicant’s objection. That decision was that there had been no change in care from 10 December 2021. The original care decision to revoke the existing care determination was set aside.

6. The effect of the objection decision (that there was no change in care) was to apply to the assessment from 5 December 2022 as this was the date the applicant objected. This is because Child Support was not satisfied that special circumstances prevented the applicant from making his objection within the 28-day period specified in legislation.

7. This is the issue that the applicant has asked the tribunal to review. He lodged his application for review on 22 March 2023. At hearing the second party stated that she disagreed with the care decision made on objection. Both issues were considered on review.

8. The tribunal held a hearing on 9 August 2023.[1] Both parties provided evidence on affirmation. Child Support provided a file of documents relevant to their decision.

ISSUES

[1] On 4 July 2023 the second party requested the hearing be rescheduled to an alternative date. The tribunal was unable to accommodate the requested date and the request was refused. The applicant attended in person. The second party was invited to attend in person but elected to provide her evidence by telephone.

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

2. Child support legislation is interpreted by Child Support with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but provided the policy is consistent with the legislation, will have regard to it.[2]

   [2] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

3. As noted, there were two issues under review:

   i.Should the existing determination of percentage of care be revoked? If so, from when should it be revoked? Should a new determination of a percentage of care be made? If so, what is the percentage of care under the new determination? From when should it apply?

   ii.Should a determination be made under subsection 87AA(2) of the RC Act? (What is the date of effect?)

CONSIDERATION OF LEGISLATION AND EVIDENCE

Issue one – should the existing determination of care be revoked and a new care determination made?

1. Sections 49 and 50 of the Act require the Child Support Registrar 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 51 deals with situations in which the care arrangement is not being complied with.

2. Section 54A of the Act sets out that 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.

3. In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to Child Support 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.

4. The following facts are not in issue and the tribunal finds:

   a)A care determination was made whereby the applicant had 100% care and the second party had 0% care from 13 August 2021.

   b)On 12 December 2021 Child Support was put on notice of a change in care when the second party contacted with evidence that care had changed to shared (50/50) care.

Applicant’s evidence about care

1. According to the Child Support record on 15 December 2021 they spoke with the applicant who confirmed that the parents were moving to a shared care arrangement. According to that file note:

   [Mr Eastwood] clarified that child [Child 1] was in his 1005 (sic)[3] care from 13/08/2021 to 09/12/2021. [Ms Orton] first week of care started from DOE 10/12/2021) and week on week off care will continue from this date[4]

   [3] 100%

   [4] Page 43. Full names redacted by the tribunal

2. The applicant stated he does not recall that conversation and does not know why he would confirm that there would be shared care from 10 December 2021. He said he is dyslexic and whilst this would not impact upon what he said, it may have contributed to his confusion. He said that he may have been referring to a care arrangement from 2020.

3. In any event, the applicant’s evidence was as follows:

   a)He received a text message from the second party’s partner on 1 November 2021 (as evidenced by a copy of the text message provided to Child Support) which proposed that the parents move to a shared care (week about) arrangement.[5]

   b)Whilst there may have been some general discussion of a change to care, in fact this never occurred, and he maintained 100% care.

   c)In early 2022 there were some occasions upon which their daughter (who at the time was 14 years old) would go and stay with the second party but it was not a regular pattern. Those occasions ceased from the end of March 2022. He is unable to provide any specific dates of care.

   d)Text messages provided by the second party are consistent with his evidence and do not demonstrate a regular pattern of shared care.

   [5] The parties at hearing stated that they do not directly communicate with each other.

Second party’s evidence about care

1. The second party stated:

   a)There was a change in care. She initially thought shared care commenced in about September 2021 but later in evidence agreed that any change started in December 2021.

   b)She does not have a clear recollection of care but believes that she had care on various occasions from December 2021 until it ceased completely after March 2022.

   c)Text messages she provided to Child Support show that she was in contact with her daughter on various dates in January, February and March 2022 which indicate that her daughter was spending nights with her. She cannot be more specific than that regarding dates of care.

   d)Ultimately, she accepts that any care happening between December 2021 and March 2022 was not consistent.

2. The tribunal, having assessed the evidence provided at hearing and considering documents contained in the Child Support file, came to the view that in November 2021 there was some discussion about the parents agreeing to a change in care. This is consistent with the text message dated 1 November 2021 and consistent with the applicant’s advice to Child Support that the care arrangement would commence from 10 December 2021. The tribunal however is also satisfied that the pattern of care in which each party had week about care did not eventuate and that the overall pattern of care was that the applicant continued to have 100% care with the second party having occasional care until it completely ceased after March 2022. This is consistent with the evidence provided by the parties at hearing.

3. The tribunal is satisfied that as there was no change to the pattern of care, there is no basis to revoke the existing care determination of 100% care to the father and 0% care to the mother. This means that the tribunal affirms the care decision made on objection.

Issue two – should a determination be made under subsection 87AA(2)?

1. The tribunal has concluded that the percentage of care decision as determined by Child Support on the objection decision is the correct decision. As noted, Child Support declined to make a determination under subsection 87AA(2) of the RC Act and this is the issue that next arises for consideration.

2. The decision to not make a determination under subsection 87AA(2) of the RC Act is reviewable by the tribunal. Section 87AA of the RC Act provides that if a person objects to a care percentage decision more than 28 days after the person was served with a notice of the decision, the decision has effect from the date the person lodged the objection.

3. Subsection 87AA(2) provides an exception to that general rule – if the objections officer is satisfied that there are special circumstances that prevented (emphasis added) the person from lodging the objection within 28 days, then they may determine that the section applies as if they had objected within time.

4. The legislation does not define special circumstances, but the Family Court in Gyselman and Gyselman (1992) FLC 92-279 held: ‘as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary’. The Guide[6] at 4.1.8 notes that:

   The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe…some examples…may include:

   ·the parent was seriously ill or had an accident…

   ·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

   ·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

   ·the parent reasonably relied upon inaccurate or misleading information.

   [6] The Guide is a policy document used by Child Support. A decision maker is not bound by such policies but can be guided by the policies articulated in the Guide unless a cogent reason exists to do otherwise (such as if the policy produces an unjust result in a particular case): Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

5. The applicant provided the following evidence:

   a)He has a recollection of receiving a notice of decision that he was determined to have 100% care from August 2021 but did not realise a decision had been made that he had shared care from 10 December 2021.

   b)He only became aware when he tried to travel overseas to [Country 1] in 2022 and was prevented due to arrears of child support that he owed.

   c)This prompted him to investigate the matter and he realised that a shared care decision had been made. He made his objection on 5 December 2022.

   d)He does not engage with Child Support correspondence including the notice of decision (17 December 2021) and notices of assessment received from that date which showed his percentage of care as shared.

   e)He also relied upon a statement provided to Child Support that he was traumatised by the behaviour of the second party and this distracted him from making his objection within time.

   f)It is unfair and unjust that he should continue to have paid child support when he had 100% care and whilst he does not want to cause an issue for the second party there should be some adjustment.

6. The applicant could not recall the date on which he said the traumatising behaviour of the second party had occurred. The second party gave evidence that there had been an incident in May 2021. The second party stated:

   a)Nothing prevented the applicant from making his objection within time.

   b)The reason that the applicant was prevented from leaving the country was because he had not paid child support for six years.

7. Authorities confirm the prima facie rule that proceedings outside of legislated prescribed periods will not be entertained unless it is proper to do so. Parliament has prescribed timeframes in child support legislation for lodging objections to decisions made by the Agency.

8. The tribunal finds that the applicant:

   a)Received a notice of decision dated 17 December 2021.

   b)He did not engage with correspondence received from Child Support.

   c)He made his objection on 5 December 2022.

9. In the tribunal’s view there were no special circumstances which prevented the second party from lodging his application within the mandated 28 days and as such the date of effect of the allowed care percentage decision is the date the objection was made. The tribunal declines to make a determination under subsection 87AA(2) of the RC Act.

DECISION

The decisions under review are affirmed.