Greengard and Anstead (Child support)

[2021] AATA 2293

Greengard and Anstead (Child support) [2021] AATA 2293 (28 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020711

APPLICANT:  Mr Greengard

OTHER PARTIES:  Child Support Registrar

Ms Anstead

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  28 May 2021

DECISION:

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Greengard provides 14 per cent care of [Child 1] and Ms Anstead provides 86 per cent care from 8 January 2020.

(b)  The Tribunal declines to make a determination under subsection 43(6) of the Administrative Appeals Act Tribunal Act 1975 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 17 August 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of the likely pattern of care from the start of the administrative assessment –decision under review set aside and substituted - whether there were special circumstances that prevented the objection being lodged in time – no special circumstances

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 the percentage of care determinations for Mr Greengard and Ms Anstead in respect of their child [Child 1] (born August 2019).  Mr Greengard and Ms Anstead are the parents of two children, however, this matter relates to [Child 1] only.

2. On 10 January 2020 a new child support case was registered by the Child Support Agency with the child support liability commencing from 8 January 2020.

3. The Child Support Agency made the decision to record the level of care under the assessment as Mr Greengard having 0 per cent care and Ms Anstead having 100 per cent care of [Child 1] from 23 December 2019 (the original decision).  Mr Greengard is the parent liable to pay child support.

4. On 17 August 2020 Mr Greengard objected to the care decision and on 6 January 2021 the Child Support Agency disallowed the objection (the objection decision).

5. On 2 February 2021 Mr Greengard applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

6. The Tribunal conducted a hearing into the application on 6 May 2021.  Mr Greengard and Ms Anstead gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (318 pages).

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. If a new application is made for a parent to be assessed in respect of the costs of a child and the 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 (sections 49 and 50 of the Act).

4. The issues which arise in this case are:

   ·     what is the percentage of care each parent has for [Child 1]; and

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

CONSIDERATION

1. Mr Greengard told the Tribunal that from the start of the assessment his care of [Child 1] was daytime care only.  He said he would care for [Child 1] a minimum of three days a week on Saturday, Sunday and Wednesday from around 9:00 am to 5:30 pm, although these times varied.

2. Mr Greengard explained that after the parents separated he had received legal advice that he should accept whatever care he could until care of his daughters had been resolved.  He said initially Ms Anstead would only agree to him having daytime care of [Child 1] and at the time he did not wish to argue.  He said he was happy to have as much care as possible.

3. Mr Greengard said he wanted to have overnight care of [Child 1] from the outset but as she was very young Ms Anstead preferred to phase in overnight care after a period of daytime care.  He said it took the parents some time to work out his pattern of care.

4. Mr Greengard told the Tribunal he had very flexible work arrangements so he was able to tailor each Wednesday around his care of [Child 1].  Mr Greengard said his mother also lived with him so if he was caught up with a work-related commitment she would assist him.  Mr Greengard said on the days he cared for [Child 1] he would usually pick her up from Ms Anstead’s home and then drop her back late in the afternoon.  He said he would prepare meals for [Child 1], take her for walks to the park, give her bottles, change her and ensure she had two sleeps a day.

5. Mr Greengard said his overnight care of [Child 1] commenced in late August, however, he felt his daytime care prior to this should be considered.  Mr Greengard said he had provided the Child Support Agency with a calendar in support of his daytime care of [Child 1].

6. The Tribunal notes in evidence from the Child Support Agency a calendar of care showing the hours of care Mr Greengard had of [Child 1] from 29 December 2019 to 25 August 2020.  The calendar shows Mr Greengard commenced having daytime care of [Child 1] on Sunday, 29 December 2019 with more regular care from Wednesday, 15 January 2020.  According to the calendar, it was from this date that the pattern of daytime care on a Wednesday, Saturday and Sunday commenced.  The start time of this care is generally 9:00 am but sometimes later and the end time is usually 5:00 pm but sometimes earlier or later.

7. Ms Anstead told the Tribunal she did not dispute that Mr Greengard had daytime care of [Child 1] on Saturday and Sunday from late January.  She pointed out that his mother cared for [Child 1] on a Wednesday as Mr Greengard was working.  Ms Anstead said it would be difficult for Mr Greengard to care for [Child 1] on a Wednesday due to his work commitments, however, she agreed that Mr Greengard’s mother lived with him in the same home.

8. Ms Anstead said because [Child 1] was so young she would facilitate the daytime care provided by Mr Greengard.  Ms Anstead said she would prepare food for [Child 1] and supply reflux medication when needed.  She said the agreed time was 9:30 am to 5:30 pm as both girls would usually go to bed between 6:00 pm and 6:30 pm each evening.

9. The Tribunal notes in evidence text messages dated 25 January 2020 and 8 February 2020 which show food being prepared by Ms Anstead for [Child 1].  There is also a text message dated 28 March 2020 in which Ms Anstead refers to having to purchase medicine for [Child 1] “for the second time since we split” and requesting Mr Greengard pay half.

10. Ms Anstead told the Tribunal she was on maternity leave until around 28 April 2020 and Mr Greengard had daytime care on weekends to giver her a break.  This was extended to include daytime care on a Wednesday, however, when she returned to work the daytime care changed to every second weekend plus additional care during the week.  She said she had given the Child Support Agency an amended version of the care calendar supplied by Mr Greengard which showed the actual hours of care he had of [Child 1] from late January 2020.

11. The Tribunal also notes in evidence a second version of the care calendar with notes and comments marked by Ms Anstead.  In this version of the calendar Ms Anstead disputes some of the start and finish times of the daytime care provided by Mr Greengard but agrees with the majority of dates of care.

12. Ms Anstead said it had always been her understanding that care was only measured in nights of care.  Ms Anstead said in this case she believed using nights of care was the best approach.  She said that as soon as Mr Greengard commenced having overnight care she had notified the Child Support Agency to ensure the record was correct.

13. While the number of nights a person cares for a child is the preferred method of measuring a parent’s percentage of care, there are occasions when care can be measured other than in nights.  The ‘Child Support Guide’, at 2.2.1, provides some guidance in relation to measuring care other than in nights.  It states:

    Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.

    In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.

14. 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.

15. It is not in dispute that Mr Greengard had regular daytime care of [Child 1] on Saturday and Sunday, usually from 9:30 am to 5:30 pm.  Mr Greengard has told the Tribunal that he also had daytime care during the same hours on Wednesday as he was working from home.  Ms Anstead argues, however, it was his mother who cared for [Child 1] on a Wednesday.  According to the care calendar provided by Mr Greengard and amended by Ms Anstead this pattern of care commenced with regularity from 15 January 2020 although Mr Greengard was providing some sporadic daytime care from 29 December 2019.

16. The Tribunal accepts that Ms Anstead prepared some food for the days [Child 1] was with Mr Greengard, however, it was Mr Greengard who was predominantly providing care.  Ms Anstead has acknowledged that this daytime care was to provide her with a break from her caring responsibilities while she was on maternity leave.  The Tribunal is satisfied that, despite Mr Greengard’s mother assisting with his daytime care of [Child 1] on a Wednesday, it was again Mr Greengard who was providing the majority of this care as he was working from home.  Mr Greengard has also explained that his work responsibilities on a Wednesday were sufficiently flexible to allow him to continue providing care for [Child 1].

17. Although the start and finish times of his care varied slightly each week the Tribunal is satisfied that, on balance, Mr Greengard was providing care of eight hours every Wednesday, Saturday and Sunday.  This totals 24 hours care each week.  The Tribunal does not consider this to be a small amount of daytime care and finds, in the circumstances of this case, it is appropriate to calculate care on the basis of hours of care.

New care percentage decision

1. In total Mr Greengard has 24 hours care each week.  As there are 168 hours in each week the care Mr Greengard provides for [Child 1] is equal to 14 per cent care.  The Tribunal finds that Mr Greengard provides 14 per cent care and Ms Anstead provides 86 per cent care of [Child 1].

2. The Tribunal notes the Child Support Agency recorded the level of care to Mr Greengard and Ms Anstead from 23 December 2019. As there is no provision in the Act for a care percentage decision to be made before the administrative assessment is in place, the Tribunal is of the view the care percentage decision should be made from the date of application.

3. The Tribunal therefore finds the care percentage decision can only apply from the date of application, in this case, 8 January 2020.  Given the pattern of care provided by Mr Greengard was regular from 15 January 2020 the Tribunal is satisfied he was effectively providing care from the commencement of the child support case.

Date of effect of new care percentage decision

1. The Tribunal must also consider the date of effect of the new care decision. 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 were a reference to such longer period as determined to be appropriate.

3. Where an objection to a care percentage decision is lodged outside the timeframe and the objection is disallowed, as in this case, the date of effect of the objection decision is according to subsection 87AA(1) and therefore subsection 87AA(2) has no application.

4. If, upon review, the Tribunal changes the decision then the Tribunal must also consider the implication of the late lodgement of the objection.  Subsection 43(6) of the Administrative Appeals Act Tribunal Act 1975 permits the Tribunal to specify a date from which its decision should take effect.

5. While the R&C Act does not define special circumstances, the Child Support Guide at 4.1.8 states such circumstances must be “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”. Examples include the parent being seriously ill, suffering a personal trauma, a natural disaster causing damage to the parent’s property, communication difficulties or the parent reasonably relying upon inaccurate or misleading information.

6. Mr Greengard first objected to the original decision on 17 August 2020.  Mr Greengard told the Tribunal he did not address the matter earlier as the separation between the parents had been difficult and as he was getting time with [Child 1] he did not wish to disrupt this in any way.  Mr Greengard said he was worried Ms Anstead might cut off care of his daughters completely if he challenged the care decision and he did not want to take that risk.  Mr Greengard explained that as soon as his overnight care of [Child 1] was locked in, he then objected to the original care decision made by the Child Support Agency on 10 January 2020.

7. The Tribunal is not satisfied the events as described by Mr Greengard were sufficiently special as to prevent him from submitting his objection within the prescribed timeframe.

8. The Tribunal therefore declines to make a determination under subsection 43(6) of the Administrative Appeals Act Tribunal Act 1975.  Accordingly, the date of effect of the Tribunal’s decision is the date when Mr Greengard lodged his objection, being 17 August 2020.

DECISION

(a)The Tribunal sets aside the decision under review and, in substitution, decides that Mr Greengard provides 14 per cent care of [Child 1] and Ms Anstead provides 86 per cent care from 8 January 2020.

(b)The Tribunal declines to make a determination under subsection 43(6) of the Administrative Appeals Act Tribunal Act 1975 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 17 August 2020.