Elwin and Elwin (Child support)

Elwin and Elwin (Child support) [2019] AATA 3848 (2 August 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/MC016574 and 2019/MC016558
APPLICANT:  Mr Elwin
OTHER PARTIES:  Child Support Registrar
Ms Elwin

TRIBUNAL:Member A Schiwy
DECISION DATE: 02 August 2019
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that from 14 March 2018 Ms Elwin has 100% care of the children and Mr Elwin has nil care. The date of effect of this decision is 1 March 2019.

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

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

Mr Elwin and Ms Elwin are the separated parents of two children who are currently [age] and [age] years old. This application for review is about the respective percentages of care that each parent has for the children.
The Department of Human Services (Child Support) determined that Ms Elwin had 75% care of the children and Mr Elwin had 25% care.
On 14 March 2018 Mr Elwin advised Child Support that the care had changed and the parents now had 50/50 care of the children. On 3 April 2018 a Child Support employee determined that the parents had 50/50 care of the children from 14 March 2018.
On 1 March 2019 (almost a year later) Ms Elwin lodged an objection to the care percentage decision and she also requested that special circumstances be considered when determining the date of effect of the objection decision.
On 1 May 2019, the objection was allowed. The objections officer decided that Ms Elwin had 100% care of the children, and that special circumstances existed that prevented Ms Elwin from lodging her objection within 28 days of the original decision and therefore the date of effect was from 14 March 2018.
On 17 May 2019 and 22 May 2019 Mr Elwin applied to this tribunal for an independent review of the objections officer’s decisions.
A hearing into the application for review was held by the tribunal on 2 August 2019 in Hobart. Mr Elwin and Ms Elwin both participated in the hearing by conference telephone and both gave evidence under affirmation during the hearing.
The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 107. The documents were exchanged with the parties prior to the hearing.

ISSUES

The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula, which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.
The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked. If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones. The dates of effect of the revocations and therefore also of the new determinations depend on the date of the change and sometimes on whether the parent notified the Registrar within a reasonable time.
In determining whether there has been a change in care 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.
The issues to be considered by the tribunal are:
· 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?

CONSIDERATION

Child Support recorded that Mr Elwin contacted them on 14 March 2018 to state that the parents had 50/50 care of the children. On 23 March 2018 they contacted Mr Elwin and have recorded that he said he shares the care of the children with Ms Elwin and that the arrangement had been in place for ‘quite some time’. He advised that the pattern of care was Friday night to Thursday night and that the pattern does not change in the school holidays. Child Support contacted Ms Elwin in writing on 15 March 2018 and there is no record of her responding.
Ms Elwin objected to the decision on 1 March 2019 and stated that she has had the children full time ‘forever’ and they only go to Mr Elwin’s home for one night every few weeks. In a later discussion she said he had the children for one or two nights per fortnight with the occasional block of five days when she goes away. She said that since 14 March 2018 they may have stayed with Mr Elwin for an additional two nights approximately five times and stayed with him for a two week holiday. She said they if they do spend a block of time with Mr Elwin they did not return for a few weeks.
Ms Elwin told Child Support that the reason for delaying her objection was because Mr Elwin is money oriented and manipulative. She said it is an emotional thing, he talks her into helping out, he is strong and persuasive and it is easier to agree with him. He makes her feel like she needs to help him.
Ms Elwin provided the following:
· A letter from a friend, [Ms A] stating that she has known Ms Elwin and the family for seven years or longer and calls in on them about three or four times a week. She said the [children] are always in Ms Elwin’s care and “It’s a rare occasion that they are in Mr Elwin’s care”. She said care is often planned but doesn’t occur.
Child Support contacted Mr Elwin on 1 April 2019 and he stated that the [children] stay with him when they want due to their age and it would still be 50% of the time; they were with him at present. He said Ms Elwin went to [Country] and has been on other holidays and he then has them 100% of the time for a week or more at a time.
Mr Elwin provided a letter from a friend, [Mr B] stating that Mr Elwin is a good father and that he has them all the time when Ms Elwin goes on holiday. He said “I visit Mr Elwin’s house and see the [children] there around 50% of the time. Of course, [the children] being the age they are, are regularly at friends’ places across the weekends. 5050 shared time happens regularly.”
Neither parent provided any other evidence to Child Support.
At the hearing Mr Elwin was asked why he contacted Child Support in March 2018 (given he said the care had been 50/50 for a long time). Mr Elwin’s response was vague. He said that he and Ms Elwin get on well and he has no issue with supporting her and the children. He said they agreed on 50/50 care; that he wants 50/50 care. He said it was difficult now the [children] were older and they often stayed over at friends’ places when they were with him. Mr Elwin could not be clear about when he actually had the children in his care and reiterated that it was agreed he would have 50% care; he said it was supposed to be week about care.
Ms Elwin stated that when they separated (around 2009) Mr Elwin wanted 50/50 care. The children were much younger and he was allowed two to three nights per fortnight. Since then there have been a lot of discussions and they have agreed to have 50/50 care. Ms Elwin said the children do not agree to 50/50 care and do not want to spend that much time with Mr Elwin. She has them for the majority of the time.
The tribunal did not give any weight to the letters provided by [Ms A] and [Mr B] given that they are friends of the parents. There was no reason to believe one more than the other.
The tribunal concluded that Mr Elwin contacted Child Support in March 2018 because he wanted 50/50 care; not because he was actually having 50/50 care. He was very vague about what actual care he did have at the time and since then. However Ms Elwin has conceded that he has care of the [children] for one to two days per fortnight and the occasional block of time when she is away. It is possible that Mr Elwin had the [children] in his care longer than this when they were younger but since March 2018 at least, it would appear his care has reduced. Neither parent appears to have kept an actual record of care.
If Mr Elwin has at least 52 nights care per year this will reduce the amount of child support payable compared to if he had nil care (0 to 51 nights’ care results in a nil cost percentage). This would require one night per week on average. To further reduce the child support liability he would need to have more than 127 nights’ care.
After considering all of the evidence the tribunal decided that it was more likely than not, that since 14 March 2018, Mr Elwin has not had care of the children for at least 52 nights per year. Although he may have them for a block of five days here and there the tribunal accepts that it may then be quite a while before he has them again.
The tribunal therefore decided that there has been a change in care on 14 March 2018 and that from 14 March 2018 Mr Elwin’s care has reduced from 25% to below 14% care. As this change in care percentage results in a change in the cost percentage (from 24% to nil) the existing care determination must be revoked.
The tribunal then considered what the date of effect of this decision should be.
Ms Elwin lodged her objection to the original decision more than 28 days after the decision was made. Subsection 87AA(1) of the Child Support (Registration and Collection) Act1988 (Registration and Collection Act) states that in such a case the date of effect is the date the person lodged the objection. Ms Elwin applied under subsection 87AA(2) of the Registration and Collection Act to extend the 28-day period due to special circumstances preventing her from lodging the objection on time.
At the hearing Ms Elwin stated that she does not like dealing with the controversy and upsetting Mr Elwin. She accused Mr Elwin of being manipulative and a bully. Mr Elwin denied this.
In the Child Support Guide, at chapter 4.1.8, the Registrar sets out the policy for determining if special circumstances exist and states:
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. Some examples of special circumstances may include:
·the parent was seriously ill or had an accident that stopped them from lodging an objection
·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.
The tribunal did not consider that special circumstances prevented Ms Elwin from lodging her objection earlier. Whilst she may have felt uncomfortable lodging the objection there is no evidence that Mr Elwin’s behaviour was such that it would be very difficult for her to lodge the objection; her wish to avoid any conflict is not a special circumstance preventing her from objecting. The date of effect of the tribunal’s decision is therefore from 1 March 2019.

DECISION

[2019] AATA 3848

2 August 2019

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Remedies

Judicial Review