Galtres and Galtres (Child support)

[2022] AATA 3679

Galtres and Galtres (Child support) [2022] AATA 3679 (13 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023876 & 2022/SC023895

APPLICANT:  Mr Galtres

OTHER PARTIES:  Child Support Registrar

Ms Galtres

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  13 September 2022

DECISION:

2022/SC023876

The Tribunal affirms the care percentage decision under review for [the child].

2022/SC023895

The Tribunal affirms the date of effect decision under review with the consequence being the date of effect of the decision in 2022/SC023876 above is 20 December 2021.

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 affirmed

CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist – decision under review affirmed

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. This review is about a change to the percentage of care determinations for Mr Galtres and Ms Galtres in respect of [their child] (born December 2016).  There has been a child support assessment in place since 9 December 2020.

2. From 29 September 2021 the child support assessment reflected Mr Galtres as having 35 per cent care and Ms Galtres as having 65 per cent care of [the child].

3. On 24 December 2021 Mr Galtres notified the Child Support Agency of a change to the care arrangements stating that he provides 46 per cent and Ms Galtres provides 54 per cent care of [the child] from 20 December 2021.

4. On 24 December 2021 the Child Support Agency made the decision to record that Mr Galtres provides 46 per cent care and Ms Galtres provides 54 per cent care of [the child] from 20 December 2021.

5. On 28 February 2022 Ms Galtres objected to this decision and on 3 May 2022 the Child Support Agency allowed the objection in part and made the decision that Mr Galtres provides 40 per cent care and Ms Galtres provides 60 per cent care of [the child] from 20 December 2021 (the objection decision).

6. As special circumstances were met, the objection decision was applied to the assessment from 20 December 2021 rather than the date Ms Galtres submitted her objection (the date of effect decision).

7. On 12 May 2022 Mr Galtres applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision and on 16 May 2022 Mr Galtres applied to the Tribunal for a review of the date of effect decision.

8. The Tribunal conducted hearings into both applications on 4 August 2022.  Mr Galtres and Ms Galtres gave evidence on affirmation by Microsoft Teams audio.  The Child Support Agency provided the Tribunal and the parties with papers relevant to both matters (183 pages).  The Tribunal received additional information from Mr Galtres (A1–A14) and Ms Galtres (B1–B18) prior to the hearing and copies were distributed to the parties.

9. At hearing both Mr Galtres and Ms Galtres advised they had yet to receive the additional information from each parent.  Ms Galtres indicated she was nonetheless happy to procced.  Mr Galtres said he wanted to review this information prior to a decision being finalised and the Tribunal agreed.  Mr Galtres subsequently provided additional written comments (A15–A25).

ISSUES

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 R&C Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [the child] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Galtres told the Tribunal that care of [the child] was the subject of court orders which allowed for him to have increased care over time.  Mr Galtres said care of [the child] changed from 20 December 2021 in accordance with these court orders and the Child Support Agency had informed him that care should be calculated over a 12-month period.

2. Mr Galtres pointed out that calculating care for the 12 months from 20 December 2021 would incorporate further progressive increases to his care in line with the court orders.  Mr Galtres said, by relying on the advice of the Child Support Agency, he should have 46 per cent care of [the child] from 20 December 2021.  Mr Galtres said he disagreed with the way in which the Child Support Agency was now excluding all the subsequent changes in care.

3. The Tribunal notes in evidence from the Child Support Agency a copy of sealed final consent orders issued by the Federal Circuit and Family Court of Australia on 29 September 2021.  In relation to living arrangements the orders state, relevantly, that:

   2.     The child live with the Father and Mother as follows:

   2.1With the father:

   2.1.1From 2 September 2021 and each alternate week thereafter:

   (a)   From the commencement of school or preschool Thursday to the commencement of school or preschool on Monday; and

   (b)   on the alternate Thursday from after pre-school/school until 6.30pm;

   2.1.2From 13 October 2021 and each alternate week thereafter:

   (a)   From the commencement of school or preschool on Wednesday to the commencement of school or preschool on Monday; and

   (b)   on the alternate Thursday from after pre-school/school until 6.30pm.

   2.2With the mother at all other times.

   2.3From the end of term 2, 2022:

   (a)   The child live with each parent on a week about basis from Monday to Monday.

   3. During the ACT gazetted school holiday periods, the parties care for [the child] as follows:

   3.1During the September/October 2021 school holidays, in accordance with Order 2.1.2 above;

   3.2During the long summer holidays, commencing in 2021:

   3.2.1On a week about basis, but with the father caring for [the child] for the duration of the [Employer] Christmas shut down period and in accordance with Order 4.2 below; and

   3.3From the commencement of Term 1 2022, on a week about basis during all holiday periods, and during long summer holidays, subject to Order 4.3 below; and

   3.4From the commencement of Term 1 2023:

   3.4.1on a week about basis during the term holidays, continuing the pattern of care applying during the school terms…

4. The Tribunal notes that Orders 4.2 and 4.3 of the court orders relate to the Christmas period with Mr Galtres to have overnight care of [the child] on Christmas Eve in 2021 and Ms Galtres to have overnight care of [the child] on Christmas night in 2021.  The Tribunal further notes that Order 5 of the court orders states that in the event Easter falls during the school holidays the school holiday care arrangements prevail, that is, on a week about basis.

5. Mr Galtres told the Tribunal the parents were following the court orders as they related to the care of [the child]. Mr Galtres said [the child] was attending [Primary School] in the ACT and so from 20 December 2021 when school holidays started he began having holiday care on a week about basis in addition to his existing care of five nights per fortnight. Mr Galtres pointed out that, in line with the court orders, he was also to have care on a week about basis during all school holidays from the start of Term 1 in 2022 and care on a week about basis from the end of Term 2 in 2022 which was, according to him, 1 July 2022.

6. Mr Galtres said his first period of holiday care started on 20 December 2021 and [the child] spent seven nights with him except for Christmas night.  In keeping with the court orders, he had care during the Christmas shut down period with handover being on 3 January 2022.  He said the week about holiday care then continued from 3 January 2022 until the commencement of school term on 31 January 2022.  Mr Galtres said his care of five nights per fortnight then continued during the school term until Easter when his week about holiday care commenced again.  Mr Galtres added that shared care started from the end of Term 2 and [the child] was in his care for a week from 1 July 2022.

7. Ms Galtres told the Tribunal the parents were following the court orders of 29 September 2021 in relation to the care of [the child].  Ms Galtres said the court orders were progressive with care changing from certain dates through until [the child] turned 10 years old.

8. Ms Galtres said she agreed that, in keeping with the court orders, care changed from 20 December 2021 when their shared holiday care commenced.  Ms Galtres said she also agreed that, except for Christmas night, Mr Galtres had care of [the child] from 20 December 2021 until 3 January 2022 when her week of holiday care began.  Ms Galtres said the parents returned to their fortnightly pattern of care under the court orders when school started for Term 1 from 31 January 2022.

9. Ms Galtres said she disagreed with the way Mr Galtres was interpreting the court orders.  Ms Galtres argued that it would be unfair to include the shared care set out under the court orders until this new pattern of care actually commenced at the end of Term 2 in 2022.  Ms Galtres said, in her opinion, this shared care was to start from 4 July 2022 but Mr Galtres took the view that it was from 1 July 2022.

10. It is not in dispute and the Tribunal finds that care of [the child] changed on 20 December 2021 in accordance with court orders dated 29 September 2021.  The parents agree the court orders were being followed in relation to the care of [the child].

11. Mr Galtreshas told the Tribunal the court orders allow for increases in his care over time.  Mr Galtres argues, in effect, that all care changes set out in the court orders should be incorporated in the 12-month care period commencing on 20 December 2021.   Ms Galtres disagrees and submits that while Mr Galtres did have additional care from 20 December 2021 it would be unfair to include other changes in care that had yet to occur.

12. Care is generally assessed over a 12-month care period.  A change in care usually takes place when the existing pattern of care ceases and a new pattern commences.  This new pattern of care will remain in place unless, ordinarily, either parent notifies of another change in care.  Future changes in care, even those that may be anticipated, should not be considered until this care event actually commences.  When this care event takes place, for example, the expected change in care for [the child] that was to occur from the end of Term 2 in 2022, a further change in care application can be submitted to the Child Support Agency.

13. The court orders state that Mr Galtres was having ongoing care of [the child] of five nights per fortnight.  In addition to this care Mr Galtres was to have week about holiday care from 20 December 2021 (the start of the long summer holidays).  As Easter was to fall within the Term 2 school holidays in 2022, in accordance with the court orders, this does not impact his care during the relevant 12-month care period.  There is also care for each parent during special occasions, however, the Tribunal is satisfied these will balance out.

14. Based on the term dates for [Primary School][1] and including his additional care during the Christmas period the Tribunal calculates that Mr Galtres would have care of 148 nights, or 40 per cent care, in the care period commencing from 20 December 2021.

    [1] [School URL]

15. The existing percentages of care reflected in the assessment for [the child] were 35 per cent care to Mr Galtres and 65 per cent care to Ms Galtres. The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

16. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

17. The Tribunal finds that Mr Galtres notified the Child Support Agency of the change in care on 24 December 2021 which is less than 28 days after the change occurred on 20 December 2021. Therefore, according to paragraph 54F(3)(a) of the Act, the existing care determinations are revoked on the day before the change of care day. The new determinations can be made from 20 December 2021.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Galtres and Ms Galtres under section 50 of the Act.

2. The Tribunal finds that Mr Galtres provides 40 per cent care and Ms Galtres provides 60 per cent care of [the child] from 20 December 2021.

Date of effect of new care percentage determinations

1. An objection to a care percentage decision does not have to be lodged within 28 days, however, if it is lodged outside the 28-day period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the R&C Act).

2. The Child Support Agency may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days was a reference to such longer period as determined to be appropriate.

3. Ms Galtres lodged her objection to the care percentage decision on 28 February 2022 which was outside the prescribed 28-day period. In this case the Child Support Agency found special circumstances existed and made a determination under subsection 87AA(2) of the R&C Act. As a consequence, the date of effect of the objection decision was 20 December 2021 and not the date Ms Galtres lodged her objection to the original decision.

4. A decision by the Child Support Agency to either make a determination under subsection 87AA(2) or not to make such a determination is separately reviewable by the Tribunal. Mr Galtres has also applied to the Tribunal for review of the date of effect decision made by the Child Support Agency under subsection 87AA(2) of the R&C Act.

5. The Tribunal finds that Ms Galtres was advised about the outcome of the original decision in a letter from the Child Support Agency dated 24 December 2021.  Given Ms Galtres lodged her objection more than 28 days after she was served with notice of the decision, the Tribunal is satisfied it must consider any special circumstances which prevented her from lodging within the prescribed timeframe.

6. Ms Galtres told the Tribunal she received a call from the Child Support Agency on 24 December 2021 informing her the change in care submitted by Mr Galtres had been accepted.  Ms Galtres said the child support officer had explained that this new pattern of care was correct and, as a result, she would become the paying parent.  Ms Galtres said she accepted the advice provided by the child support officer.

7. Ms Galtres said she subsequently applied for a change of care on 31 January 2021 as school holidays had ended and the fortnightly pattern of care had commenced again with Mr Galtres having care of five nights per fortnight.  Ms Galtres said several weeks later a child support officer had contacted her and advised that her change in care would be rejected and she needed to instead submit an objection to the decision made on 24 December 2021.  Ms Galtres said in the period following the original decision she also moved house on three occasions and was involved in exhausting legal battles with Mr Galtres.  Ms Galtres said she objected as soon as she was told to by the Child Support Agency.

8. Ms Galtres pointed out that she accepted she would ultimately become the paying parent when Mr Galtres had more care of [the child].

9. Mr Galtres told the Tribunal that, like him, Ms Galtres had received correspondence from the Child Support Agency on 24 December 2021 which clearly stated she must object within 28 days from the date the letter was received.  Mr Galtres said Ms Galtres objected outside this period and he did not accept her explanations for the late objection.

10. Mr Galtres said Ms Galtres had sent him a text message on 24 December 2021 confirming that she would need to start paying him child support.  Mr Galtres said there was no legal pressure on either parent at the time as parenting matters had been resolved and there was no correspondence exchanged relating to property settlement until 14 February 2022.  Mr Galtres added it was his understanding that while Ms Galtres did move house this was after the date by which she was supposed to submit her objection, being 21 January 2022.  Mr Galtres argued that, in his view, Ms Galtres had rested on her rights.

11. The Tribunal notes in evidence from the Child Support Agency that during a conversation with a child support officer on 27 February 2022 Ms Galtres was informed the original care decision was incorrect.  Ms Galtres was advised to object to this decision and told her change in care application (submitted on 31 January 2022) would be rejected.  The child support officer is also recorded as stating that Ms Galtres could not be immediately transferred to objections and would need to call the next day.  The Tribunal further notes that, according to child support records, no explanation was given to Ms Galtres on 24 December 2021 as to how the care percentages were calculated in the original decision.

12. The Act does not define the term special circumstances, but the Family Court in Gyselman & Gyselman [1991] FamCA 93 has 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”.

13. The Child Support Guide also states at 4.1.8, in relation to special circumstances, that:

    Special circumstances

    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.

1. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

2. Ms Galtres has told the Tribunal that when contacted by the Child Support Agency on 24 December 2021 she accepted the advice given that calculations had been made and care had changed accordingly.  Ms Galtres was not given an explanation of how the new pattern of care had been determined and when informed on 27 February 2022 that the care decision was incorrect she objected the next day.  In the view of the Tribunal Ms Galtres reasonably relied on inaccurate information provided by the Child Support Agency.

3. The Tribunal is satisfied, based on the evidence provided, the events as described by Ms Galtres prevented her from objecting sooner. The Tribunal finds special circumstances exist and the discretion provided for in subsection 87AA(2) of the R&C Act should be exercised in this case.

4. The Tribunal therefore affirms the decision made by the Child Support Agency to exercise the discretion provided for in subsection 87AA(2) of the Act.

DECISION

2022/SC023876

The Tribunal affirms the care percentage decision under review for the child [the child].

2022/SC023895

The Tribunal affirms the date of effect decision under review with the consequence being the date of effect of the decision in 2022/SC023876 above is 20 December 2021.