Fairwether and Fairwether (Child support)

[2022] AATA 3088

Fairwether and Fairwether (Child support) [2022] AATA 3088 (4 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023352

APPLICANT:  Mr Fairwether

OTHER PARTIES:  Child Support Registrar

Ms Fairwether  

TRIBUNAL:Member D Tucker

DECISION DATE:  4 July 2022

DECISION:

The tribunal sets aside the decision under review and in substitution decides that:

1. the care of [Child 1] was 92% to Mr Fairwether from 31 October 2019, and 8% to Ms Fairwether from 17 December 2018;

2. there are no grounds for applying subsection 95N(2);

3. the date of effect of the tribunal’s decision is 23 February 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 – date of effect of the tribunal’s decision – late application for review – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines to make a determination under subsection 95N(2)

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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. Mr Fairwether and Ms Fairwether other separated parents of [Child 1], born [in] July 2002 (aged 19 years) and [Child 2], born [in] August 2006 (aged 15 years). This application for review relates to [Child 1’s] care.

2. There are no court orders or written care arrangements in place. 

3. On 17 September 2018 Services Australia – Child Support (the CSA) determined that the care of [Child 1] was 100% to Ms Fairwether and 0% to Mr Fairwether, from 17 August 2018. At that time, the parents had an agreement to collect child support privately.

4. On 1 November 2019, according to the CSA’s file note, Mr Fairwether reported that “child [Child 1] has been in his care since 2018”. The CSA officer who wrote this file note proposed a 12-month care period from 18 December 2018.

5. On 15 January 2020, according to the CSA’s file note, Ms Fairwether “confirmed child [Child 1] is with [Mr Fairwether] 100% from 18/12/19”. This file note is confusing, as it indicates Ms Fairwether confirmed a date of event (DOE) 12 months after the date notified by Mr Fairwether.

6. The same day the CSA noted a care decision[1] which states the DOE as 18 December 2019 and the date of notification (DON) as 1 November 2019. It seems likely this was a simple clerical error, as the CSA’s subsequent file notes and letters reflect a DOE of 18 December 2018.[2]

   [1] Page 73

   [2] Pages 81, 83

7. On 22 January 2020, Ms Fairwether contacted the CSA to query its decision of 15 January 2020. She explained that when she responded to the CSA’s query on 15 January 2020 regarding Mr Fairwether’s notification, she intended to confirm that the DOE was 18 December 2019, rather than 18 December 2018. Ms Fairwether surmised that she had misunderstood the question put to her by the CSA officer on 15 January 2020.

8. Parenthetically, the tribunal finds it is more likely that the CSA officer misspoke by referring to a proposed DOE of 18 December 2019 rather than 18 December 2018, as reflected in their file note (an understandable error so early in the New Year and the DOE involved).

9. In any case, on 29 January 2020, Ms Fairwether lodged an objection to the CSA’s decision on 15 January 2020, on the basis that the DOE was 18 December 2019, not 18 December 2018.

10. On 12 February 2020 the CSA contacted Mr Fairwether about Ms Fairwether’s objection. Contrary to his previous statements, Mr Fairwether agreed with Ms Fairwether’s objection, confirming that the change in care began on 18 December 2019. He clarified that between December 2018 and December 2019 [Child 1] had alternated between his care and Ms Fairwether’s, but he did not have 100% care until 18 December 2019.

11. Accordingly, on 26 February 2020, the CSA partially allowed Ms Fairwether’s objection, setting aside its decision of 15 January 2020 and determining that from 18 December 2019 (rather than 18 December 2018) Mr Fairwether had 100% care of [Child 1]. The same day the CSA notified both parents of its decision via letter.[3]

    [3] Pages 2, 3

12. Approximately two years later, on 10 February 2022, Mr Fairwether contacted the CSA to report that, contrary to his previous statements, he had 100% care of [Child 1] from 21 December 2018. Mr Fairwether explained he had previously incorrectly stated his percentage of care to benefit Ms Fairwether, as she was struggling financially, and a correct notification of her care would have reduced her rate of family tax benefit. 

13. On 23 February 2022, Mr Fairwether lodged an application for further review with this tribunal.

14. On 10 May 2022 Mr Fairwether and Ms Fairwether gave affirmed evidence via a telephone hearing. The tribunal also considered relevant documents provided to it the CSA pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975. A copy of the papers was provided to both parties prior to the hearing.

LEGISLATION

1. The legislation relevant to this review is contained in

   ·   the Child Support (Assessment) Act 1989 (the Act) and

   ·   the Child Support (Registration and Collection) Act 1988.

ISSUES

1. The tribunal must determine:

   ·   Was there was a change in care?

   ·   Should the existing care percentages be revoked, and if so, from what date should they take effect?

CONSIDERATION

Evidence presented at hearing

1. At the hearing, Mr Fairwether and Ms Fairwether did not dispute that [Child 1] was 100% in Mr Fairwether’s care from 18 December 2019. However, they disputed the care each had of [Child 1] in the preceding 12 months, from 18 December 2018.

2. According to Mr Fairwether, [Child 1] was in his care every night of this 12-month period, apart from three weekends when he stayed at his mother’s home in [Town 1]. He explained that during this period [Child 1] was working full time and undertaking a TAFE course in [Town 2] (where Mr Fairwether lives). As Ms Fairwether lives in [Town 1], it was not feasible for [Child 1] to stay with her regularly.

3. Ms Fairwether did not dispute that [Child 1] was employed and studying full time in [Town 2] during 2019, but claimed that he stayed with her more often than Mr Fairwether stated. She estimated that [Child 1] stayed with her for two days on a weekend, each month, or every three weeks – and that he stayed for longer than a weekend during school holidays.

4. Mr Fairwether refuted this, pointing out that [Child 1] had left school prior to 2019 and was employed full-time, so he did not have time off during school holidays to spend in [Town 1].

5. Mr Fairwether told the tribunal that he had inaccurately reported his percentage of care previously because he had not paid close attention to the CSA’s letters and because he and Ms Fairwether had a private collection arrangement.

Was there a change in care?

1. Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period. As Mr Fairwether and Ms Fairwether made no contrary contention, the tribunal finds that using nights is appropriate in this case.

1. The tribunal finds Ms Fairwether’s claim to have had additional care of [Child 1] during school holidays unlikely. Apart from this, if her claims are accepted, she had no more than 34 days of care per year, or 9%. 

2. Mr Fairwether’s claim is that [Child 1] was in Ms Fairwether’s care for no more than six days during the 12-month period from 18 December 2018, which equates to 1% care.

3. The tribunal notes that both parents have made inconsistent statements about their percentages of care. Each suggested that the other parent made notifications motivated by financial pressure and unrelated disputes. Neither provided documentary evidence to support their claims. The tribunal has no reason to prefer either party’s evidence.

4. In the face of uncorroborated, competing claims the tribunal is obliged to make the best decision it can with the available evidence. Accordingly, the tribunal finds that there was a change in [Child 1’s] care, from 18 December 2018, such that Ms Fairwether had 8% care and Mr Fairwether had 92% care.

Should the existing care percentages be revoked?

1. Existing care percentages apply until the CSA becomes aware of a change in care which warrants their revocation and the making of new care percentages.

2. Decision makers are obliged to revoke care percentages in the following circumstances:

   ·   a person no longer has a care percentage of at least 14%, the child is made available to the other parent and the CSA is notified of the change within a reasonable time (section 54G of the Act), or

   ·   section 54G does not apply and the person’s actual care does not correspond with the percentage of care reflected to them, such that, if it was applied, it would change their cost percentage (section 54F of the Act).

3. Section 54G of the Act is not applicable in this instance, because Mr Fairwether’s notification to the CSA was made on 10 February 2022, almost two years after its objection decision of 26 February 2020. In the tribunal’s view, this was not within a reasonable time.

4. The tribunal finds that section 54F of the Act must be applied to revoke the existing determination, as the difference between the percentage of care reflected to the parents and their actual care, if applied, would impact their cost percentages.

From what date should new care percentages apply?

1. Because Mr Fairwether’s notification of the change in care was made on 1 November 2019, more than 28 days after the change in care on 18 December 2018, subsection 54F(3) applies, requiring that:

   ·   Mr Fairwether’s percentage of care (as the parent with increased care) is revoked from the day before his notification, that is, from 31 October 2019; and

   ·   Ms Fairwether’s percentage of care (as the parent with decreased care) is revoked from the day before the change in care, that is from 17 December 2018.

2. If a person applies to this tribunal for review more than 28 days after receiving notice of the CSA’s objection decision, and the tribunal changes the objection decision, identifying different care percentages, then the tribunal’s decision will take effect from the date the person applied to the tribunal for review (subsection 95N(1)).

3. The tribunal can make an exception to this general rule, by granting an extension of time to apply, where special circumstances prevented the person applying to the tribunal within 28 days (subsection 95N(2)). Examples of special circumstances may include a serious illness or accident, a personal trauma such as a death in the family, a natural disaster, communication difficulties such as isolation, illiteracy or poor English-language skills, or the person reasonably relying upon inaccurate or misleading information.

4. In this instance the tribunal is satisfied that no such special circumstances exist and consequently decides: (i) not to make a determination pursuant to subsection 95N(2), and (ii) the new percentages of care apply from the date Mr Fairwether sought review from this tribunal, which was 23 February 2022.

DECISION

The tribunal sets aside the decision under review and in substitution decides that:

1. the care of [Child 1] was 92% to Mr Fairwether from 31 October 2019, and 8% to Ms Fairwether from 17 December 2018;

2. there are no grounds for applying subsection 95N(2);

3. the date of effect of the tribunal’s decision is 23 February 2022.