Fesperman and Brewster (Child support)

[2021] AATA 4240

Fesperman and Brewster (Child support) [2021] AATA 4240 (22 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022075

APPLICANT:  Ms Fesperman

OTHER PARTIES:  Child Support Registrar

Mr Brewster

TRIBUNAL:Member H Moreland

DECISION DATE:  22 September 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Ms Fesperman had a percentage of care of 67% and Mr Brewster had a care percentage of 33% from 28 December 2020. For the reasons provided in paragraphs 17–20, the date of effect of the tribunal’s decision is 11 August 2021, the date Ms Fesperman made her application for review with the tribunal.

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. Ms Fesperman and Mr Brewster are the parents of [the child]. Mr Brewster is the parent liable to pay child support.

2. The Department of Human Services – Child Support (now Services Australia) (Child Support) determined that Ms Fesperman had a percentage of care of 62% and Mr Brewster had a percentage of care of 38% for [the child] from 1 April 2020.[1]

   [1] T documents, p 118.

3. On 4 January 2021, Ms Fesperman contact Child Support and notified them that the care percentage of [the child] had changed and said that she had a care percentage of 69% and Mr Brewster had a care percentage of 31% for [the child] and that this had been the case since 28 December 2020.

4. On 11 March 2021, Child Support refused to change the care percentage for [the child] from 28 December 2020.[2] Ms Fesperman lodged an objection to this decision on 7 April 2021.[3] On 22 May 2021, an objections officer disallowed Ms Fesperman’s objection to the original decision.[4]

   [2] T documents, p 78.

   [3] T documents, p 11.

   [4] T documents, p 10.

5. On 11 August 2021, Ms Fesperman lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 22 September 2021. Ms Fesperman and Mr Brewster participated in the hearing via conference telephone and gave sworn evidence. In making its decision, the tribunal took into consideration the documents provided by Child Support (165 pages, the “T documents”), which were also sent to Ms Fesperman and Mr Brewster.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

Has there been a change in the care of [the child]?

1. As shown in the Child Support papers, there is a court order in relation to the care of [the child], dated 2 May 2018.[5]

   [5] T documents, pp 56–60.

2. According to the court order, the general pattern of care for [the child] is that he is to be in the care of Ms Fesperman except for the following: during school term times, [the child] is to be in the care of Mr Brewster from the commencement of school on Monday until the conclusion of school on Wednesday each week; on the last weekend of each rostered month from 4.30pm (or the conclusion of kinder/school if applicable) on Friday until 9.00am (or the commencement of kinder/school if applicable) on Mondays. The court order provides for school holiday periods, as well as special occasions such as Christmas, [the child]’s birthday, Father’s Day and Mother’s Day to be split between Ms Fesperman and Mr Brewster. The court order also makes specific provision in relation to Mr Brewster’s roster (Mr Brewster is [an Occupation]), providing that if Mr Brewster is rostered on to work at a time that he is due to have care of [the child], Ms Fesperman is to have first option, to care for [the child].

3. As provided for in the court order, Ms Fesperman and Mr Brewster told the tribunal that their procedure for determining care on a roster-by-roster basis is that Mr Brewster provides Ms Fesperman with a copy of his work roster and Ms Fesperman marks up the nights of care in relation to [the child]. Discussion about amendments to the roster occur over email.

10.Ms Fesperman and Mr Brewster both told the tribunal that when the [industry] was shut down in March 2020, the care of [the child] changed, as the nights that Mr Brewster was unable to care for [the child] due to him being rostered to work, no longer occurred. This is why the care of [the child] was changed from 1 April 2020 to reflect Ms Fesperman’s care percentage of [the child] being 62% and Mr Brewster’s care percentage being 38%.

11.It is not in dispute that Mr Brewster resumed work as [an Occupation] late in December 2020, and that as a result, Mr Brewster’s care decreased, because there were nights that he was unable to care for [the child] because he was rostered on to work, and Ms Fesperman exercised her option to care for [the child] on those nights.

12.Mr Brewster told the tribunal that he is disappointed that when he is rostered on standby and doesn’t end up working, Ms Fesperman uses her option to care for [the child] and that in these cases, and when he actually undertakes shifts that reduce his care of [the child], he is not able to have nights to make up for the care. The tribunal notes that its role is to determine what the actual care of [the child] was during the relevant period, unless it appeared the court orders were not being followed, but it appears that the court orders are being followed.

13.As the tribunal is satisfied that a change in the care pattern occurred on 28 December 2020, it must determine what the new pattern and percentage of care was during the care period commencing from that date. A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event).

14.A copy of Mr Brewster’s rosters, with Ms Fesperman’s notes are included in the T documents.[6] Mr Brewster did not dispute the accuracy of the documents. The rosters show that the care of [the child] was as follows:

[6] T documents, p 61–64.

Period	Nights of care – Ms Fesperman	Nights of care – Mr Brewster
28 Dec 20 – 24 Jan 21	19	9
25 Jan 21 – 21 Feb 21	18	10
22 Feb 21 – 21 Mar 21	20	8
22 Mar 21 – 18 Apr 21	18	10
Total	75	37

15.The tribunal finds that during this period of 112 nights, Ms Fesperman’s percentage of care was 67% (75 nights) and Mr Brewster’s percentage of care was 33% (37 nights). The tribunal also notes that each of the periods reflects what appears to be similar percentages of care, and the whole period includes a school term and school holiday periods. Therefore, the tribunal is satisfied that this pattern and percentage of care reflects the pattern of care for [the child] over the 12-month care period from 28 December 2020.

Should the existing care determination in relation to [the child] be revoked?

16.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child, or children.

17.In this case, the tribunal has determined that a care determination was made under section 50 of the Act, that being that Ms Fesperman had a care percentage of 62% and Mr Brewster had a care percentage of 38% from 1 April 2020. The tribunal is also satisfied that the care that was taking place did not correspond with that care percentage decision. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [the child], the tribunal must determine the care during the care period. As noted above, the tribunal is satisfied that the care of [the child] changed from 28 December 2020, with Ms Fesperman having a care percentage from that date of 67% and Mr Brewster having a care percentage of 33%.

Date of effect of the tribunal’s decision

18.Section 95N of the Registration Act provides that a review decision will have effect from the date the application for review was made if the application was lodged more than 28 days after the objection decision. However, if there are special circumstances that prevented the person from lodging the application within 28 days, the tribunal may allow for a longer application period.

19.In this case, the objection decision was made on 22 May 2021 and Ms Fesperman lodged her appeal of that decision on 11 August 2021 (a period of 81 days).

20.Ms Fesperman provided the tribunal with confidential reasons that she was unable to lodge her appeal of the objections officer’s decision prior to 19 June 2021. Having reviewed the confidential information provided by Ms Fesperman, the tribunal is not satisfied that Ms Fesperman’s circumstances could be regarded as special circumstances such that she was prevented from lodging an application for review with the tribunal within 28 days of the objection decision on 22 May 2021. The tribunal has therefore determined that the discretion contained in section 95N should not be exercised in Ms Fesperman’s favour to give effect to this decision earlier than the date the application was lodged with the tribunal.

21.Accordingly, the date of effect of the tribunal’s decision in respect of Ms Fesperman having a percentage of care of 67% and Mr Brewster having a care percentage of 33% from 28 December 2020, will be 11 August 2021, the date Ms Fesperman made her application for review with the tribunal.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Ms Fesperman had a percentage of care of 67% and Mr Brewster had a care percentage of 33% from 28 December 2020. For the reasons provided in paragraphs 17–20, the date of effect of the tribunal’s decision is 11 August 2021, the date Ms Fesperman made her application for review with the tribunal.