Grenville and Cooksey (Child support)

[2022] AATA 1571

Grenville and Cooksey (Child support) [2022] AATA 1571 (28 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023252

APPLICANT:  Mr Grenville

OTHER PARTIES:  Child Support Registrar

Ms Cooksey

TRIBUNAL:Member P Jensen

DATE OF DECISIONS:                  28 April 2022

DECISIONS:

The objections officer’s decision is set aside and, in substitution, Mr Grenville is recorded as providing 50% care and Ms Cooksey is recorded as providing 50% care for [Child 1] with effect from 20 April 2021 and for the duration of the interim period, and Mr Grenville is to be recorded as providing 100% care and Ms Cooksey is to be recorded as providing 0% care thereafter (“the Tribunal’s care decision”).

A determination is not made pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988. The Tribunal’s care decision has effect from 10 November 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – interim period – date of effect provisions - whether there were special circumstances that prevented the objection being lodged in time – no special circumstances – decision under review set aside and substitute

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 DECISIONS

Introduction

1. Mr Grenville and Ms Cooksey are the parents of [Child 1] and [Child 2]. This case concerns the parents’ care of [Child 1] as recorded by the Child Support Agency (“the CSA”).

2. On 17 March 2021, interim court orders were made concerning the parents’ care of [Child 1]. Each parent was to provide 50% care. The CSA subsequently decided to record each parent as providing 50% care with effect from 22 March 2021.

3. On 20 April 2021, Mr Grenville informed the CSA that [Child 1] did not want to return to Ms Cooksey’s care and he (Mr Grenville) would be providing full-time care from 20 April 2021. The CSA contacted Ms Cooksey who effectively stated that Mr Grenville was withholding care and she was taking action to have her court-ordered care.

4. On 23 April 2021 the CSA decided to record Mr Grenville as providing 50% care and Ms Cooksey as providing 50% care from 20 April 2021 to 15 March 2022, and record Mr Grenville as providing 100% care and Ms Cooksey as providing 0% care from 16 March 2022.

5. Both parents were notified of that decision via letters dated 23 April 2021. The letters informed the parents that they could object to the decision and, if they wished to object, they should do so within 28 days of receiving the letter.

6. On 27 October 2021, final court orders were made concerning the parents’ care of [Child 1]. The final orders were in the same terms as the interim orders. The final orders included a note which stated: “These proceedings have been finalised today in the absence of the father who has refused or failed to attend on the last two Court dates.”

7. On 10 November 2021, Mr Grenville contacted the CSA. It recorded the contact as an objection to the decision dated 23 April 2021. Its file note includes the following: “[Mr Grenville] advised that [Ms Cooksey] has dropped the court case”. In fact, Ms Cooksey had not “dropped” the court case; the court had made final orders in the terms that Ms Cooksey had been seeking.

8. An objections officer disallowed Mr Grenville’s objection to the decision dated 23 April 2021. Mr Grenville promptly applied to the Tribunal for further review. I heard the matter on 28 April 2022. Mr Grenville and Ms Cooksey gave sworn evidence via a Teams conference call.

The care decision

1. It is necessary at this point to give an overview of the complicated provisions of the Child Support (Assessment) Act 1989 (“the Assessment Act”) so far as they apply to the current case. Care decisions consist of the revocation of existing care determinations, usually pursuant to section 54F or 54G of the Assessment Act,[1] and the making of new care determinations pursuant to section 49 or 50 of the Assessment Act. New care determinations usually reflect the parents’ actual patterns of care. However, in certain circumstances, section 51 of the Assessment Act requires a decision-maker to make two sets of new care determinations. The first set reflects the patterns of care that the parents were ordered to provide[2] and the second set reflects the patterns of care that the parents were actually providing. The first set applies during an “interim period” and the second set applies once the interim period has ended: section 54C of the Assessment Act. The term “interim period” is defined in section 53A of the Assessment Act. In the current case, the interim period started when the change in care occurred: subparagraph 53A(1)(a)(i). The Assessment Act provided that the interim period would end:

   ·   52 weeks after the date on which the court orders first took effect; or

   ·   when Ms Cooksey stopped taking reasonable action to have her court-ordered care; or

   ·   the day on which the court orders ceased to apply; or

   ·   “if a care arrangement in relation to the child begins to apply on a day – on the day before that day”;

   whichever occurs first.[3]

   [1]In this case they were the existing care determinations to record Mr Grenville as providing 50% care and Ms Cooksey as providing 50% care for [Child 1] with effect from 22 March 2021.

   [2]More precisely, the patterns of care that were to be provided pursuant to a care arrangement as defined in section 5 of the Assessment Act.

   [3]See paragraph 53A(1)(b) and item 1 of the interim period table. The legislative scheme is actually more complicated than the summary I have provided, but my summary is sufficient for present purposes.

2. When the original decision-maker made their decision, it was not known when the interim period would end. The Assessment Act did not require the original decision-maker to predict when the interim period was likely to end. A finding that the interim period had ended, and the consequential decision to cease applying the first set of new care determinations and start applying the second set of new care determinations, could only be made once one of the four alternative provisions in paragraph 53A(1)(b), i.e. one of the four dot points above, was satisfied. That can be contrasted with sections 49 and 50 of the Assessment Act which required the original decision‑maker to make a finding concerning the actual care each parent “has had, or is likely to have,” during the relevant care period. On review, an objections officer, and in turn this Tribunal, is required to “stand in the shoes” of the original decision-maker and also make a finding as to what pattern of actual care each parent “has had, or is likely to have,” as at the date on which the original decision‑maker made their decision. The two separate decisions to start and end an interim period are more analogous to two separate decisions to start and end a child support case in respect of a child. When a child support case starts, it is likely to end when the child turns 18, but other events could cause it to end sooner, and the decision to end a child support case is not made until the relevant event occurs.[4]

   [4]Section 12 of the Assessment Act lists what are called child support terminating events.

3. Complex legislative schemes can cause practical problems. On 23 April 2021 the CSA sent a letter to Mr Grenville which notified him of its decision to record him as providing 49% care[5] from 20 April 2021 to 15 March 2022 and 100% care from 16 March 2022. On review, the objections officer stated that the decision under review was “[t]he decision made on 23 April 2021 to reflect the care of [Child 1] as 50% to Ms Cooksey and 50% to [Child 1] from 20 April 2021, notified on 20 April 2021.” The objections officer did not address the inconsistency between the original decision as stated in the letter dated 23 April 2021 and as (re)stated by the objections officer. The objections officer disallowed Mr Grenville’s objection. Brief reasons were given for that decision but, with respect, those reasons did not address the threshold issue which was the correct identification of the decision under review. At the Tribunal hearing I did my best to summarise everything that has been set out above so that Mr Grenville could make an informed decision about whether he wished to continue with his application for review of the decision dated 23 April 2021 or whether he wished to ask the CSA to make an original decision about whether to end the interim period in or around October 2021 (which would then give the parents review rights in respect of that separate decision), or both. Mr Grenville did his best to follow what I was saying but, understandably, he became frustrated with my explanation. From his perspective, the matter was straightforward: he had been providing 100% care and the rate of child support payable should have been calculated accordingly. He stated that he wished to proceed with his application for review of the decision under review, and that is what occurred.

   [5]As an aside, even when the CSA decides to record each parent as providing 50% care, its computer system lacks the capacity to record those percentages of care; it records 49% care and 51% care. However, the inaccuracy does not affect the rate of child support payable: section 55C of the Assessment Act.

4. On 23 April 2021 the CSA decided to record Mr Grenville as providing 50% care and Ms Cooksey as providing 50% care for [Child 1] from 20 April 2021 to 15 March 2022, and to record Mr Grenville as providing 100% care and Ms Cooksey as providing 0% care for [Child 1] from 16 March 2022. The objections officer disallowed Mr Grenville’s objection to that decision. That is the decision under review.

5. Both parents agreed that a change in care occurred on 20 April 2021, at which point Mr Grenville started providing 100% care.

6. Mr Grenville stated that the parents are unable to communicate with each other. He said he encouraged [Child 1] to spend time with Ms Cooksey. Later during the hearing he said that he and [Child 1] had been “incredibly busy”, they had been doing something every day and that might have been one of the reasons why [Child 1] did not want to return to Ms Cooksey. I referred to the interim court orders that prescribed the care that the parents were to provide. Mr Grenville replied that he had been unaware of those orders. I note that Mr Grenville was represented by [a named person] “on a duty basis” when the interim court orders were made on 17 March 2021. I consider it unlikely that Mr Grenville was unaware of the court orders.

7. Ms Cooksey agreed that the parents are unable to communicate with each other. She said she attempted to collect [Child 1] from school as planned but Mr Grenville would attend the school and she was unable to collect [Child 1]. She said her solicitor wrote letters to Mr Grenville noting his breaches of the court orders and requesting the resumption of the court‑ordered care. She said her solicitor continued to have dealings with the independent lawyer who had been appointed to represent [Child 1]’s interests and later, when Ms Cooksey could no longer afford her own solicitor’s fees, she had direct dealings with the independent lawyer.

8. There is no dispute that each parent was to provide 50% care pursuant to the interim court orders but Mr Grenville started providing 100% care from 20 April 2021 and, as at April 2021, he had been likely to continue to do so.

9. Apart from the final court orders which effectively note Ms Cooksey’s perseverance with the legal proceedings concerning her care of [Child 1] and Mr Grenville’s failure to properly engage in those proceedings, neither parent has provided documentary evidence in support of their account of events. Nevertheless, I am required to make findings of fact on relevant issues. Having heard from both parents, I consider Ms Cooksey’s evidence to be the more reliable. In particular, I find that, as at April 2021, Mr Grenville was not making [Child 1] available to Ms Cooksey,[6] Ms Cooksey was taking reasonable action to ensure compliance with the interim court orders,[7] and there were not special circumstances in relation to [Child 1] that would make it appropriate to not make an interim determination.[8] When the change in care occurred, the existing care determinations had to be revoked pursuant to section 54F and two sets of new determinations had to be made pursuant to sections 49 and 51. The first set had to reflect Mr Grenville’s and Ms Cooksey’s court-ordered pattern of care and the second set had to reflect Mr Grenville’s and Ms Cooksey’s actual pattern of care: subsections 51(3) and (4). The first set of new care determinations applied from 20 April 2021 and for the duration of the interim period and the second set applied thereafter: subsection 54C(2). However, for the reasons stated above, the original decision could not include, and on review cannot include, the date on which the interim period ended. That separate decision could only be made once one of the requirements of paragraph 53A(1)(b) was satisfied. The objections officer’s decision will be set aside and a similar but not identical decision will be substituted which correctly reflects the applicable law.

   [6]This finding is relevant to paragraph 54G(1)(b) of the Assessment Act.

   [7]This finding is relevant to paragraph 51(1)(d) of the Assessment Act.

   [8]This finding is relevant to subsection 51(5) of the Assessment Act.

Mr Grenville’s delay in objecting to the original care decision

1. If the objections officer had changed the original decision (“the objections officer’s care decision”), the objections officer would have been required to also consider whether Mr Grenville had objected to the original decision within 28 days of being notified of that decision, and if he had not objected within that 28‑day period, whether there had been special circumstances that had prevented him from doing so: section 87AA of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”). Depending on the objections officer’s findings, the objections officer would have decided to either make or not make a determination pursuant to section 87AA, which would have resulted in the objections officer’s care decision either having full retrospective effect or only applying from the date on which Mr Grenville objected. The parents would have had separate review rights in respect of that decision, i.e. they would have had review rights in respect of the objections officer’s care decision and they would have had separate review rights in respect of the objections officer’s decision to either make or not make a section 87AA determination. If a parent applied for review of one decision but not the other, the Tribunal could only review the decision in respect of which the application for review had been lodged; the Tribunal would not have jurisdiction to review the other decision.[9]

   [9]YXVZ and Child Support Registrar (Child support second review) [2020] AATA 4802.

2. The current case raises a different problem. I will be setting aside the objections officer’s decision and substituting a decision which changes the original decision. The question then arises as to whether I can also make a decision under section 87AA, or whether an objections officer needs to make that original decision (and then review rights would attach to that decision).

3. On one view, the Tribunal stands in the shoes of the objections officer and exercises the powers that were available to the objections officer, including the contingent power to make a decision under section 87AA.

4. On another view, the Registration Act provides for the making of separate care decisions and section 87AA decisions, there are separate review rights in respect of each type of decision and the Tribunal’s role is to review decisions rather than make original decisions. Further, if one parent applies for review of a care decision, the other party is not always automatically a party to that application for review: sections 80, 80A, 85, 85A and 95D, and item 2 of section 89, of the Registration Act. One can envisage a situation where one parent applies for review of a care decision, the other parent is not automatically a party to that application for review and does not apply to be made a party, the Tribunal finds in the applicant’s favour and then proceeds to make a section 87AA determination in the applicant’s favour. In those circumstances, a new issue would have been raised and decided in the other parent’s absence. Further, that parent would not have review rights in respect of that new decision because they were not a party to the proceedings. If such an interpretation of the Registration Act inevitably produced such an unfair result in such circumstances, it would suggest that the interpretation was incorrect.[10] However, in my opinion, the answer lies in the different types of decisions that the Tribunal can make: section 43 of the Administrative Appeals Tribunal Act 1975. In an appropriate case, the Tribunal could set aside the care decision under review and remit the matter to the CSA with directions that it record each parent as providing certain percentages of care from certain dates (thereby effectively implementing the Tribunal’s care decision) and that an objections officer proceed to decide whether to make a section 87AA determination.

   [10]As an aside, this scenario will occur less and less frequently. Recent legislative changes have resulted in both parents automatically being made parties to applications for review of objections officers’ care decisions that have been made on or after 18 February 2022: Part 11 of Schedule 1 to the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2022.

5. Viewing those provisions as a whole, I consider the first view to be the preferable interpretation: the Tribunal stands in the shoes of the objections officer and exercises the powers that were available to the objections officer, including the contingent power contained in section 87AA. Turning to the current case, Ms Cooksey was a party to the proceedings, she had an opportunity to be heard in respect of Mr Grenville’s apparent delay in lodging his objection and it is appropriate to make a decision under section 87AA.

6. The original care decision was made on 23 April 2021 and Mr Grenville lodged his objection on 10 November 2021. The CSA asked him why he had not objected sooner and it noted (reproduced here verbatim):[11]

   [Mr Grenville] advised that he emotionally upset and depressed to the point which restricted him to lodge objection earlier.

   [11]Page 61 of the hearing papers.

7. At the hearing I asked Mr Grenville why he had not objected sooner. He explained that he was a single parent and he had been running a business with six employees. He also referred to the COVID-19 pandemic, adding that he had not been vaccinated. There was no suggestion by Mr Grenville that he did not receive the CSA’s letter dated 23 April 2021 which constituted notice of the decision. In any event, Mr Grenville is deemed to have received the letter and he is deemed to have been served “at the time at which the letter would be delivered in the ordinary course of post”: section 29 of the Acts Interpretation Act 1901. He did not object within 28 days of being served with a notice of the decision. On his account of events, he was able to run a business and also remain “incredibly busy” with [Child 1] every day. Lodging an objection to a care decision is a very simple process. It can be done over the phone. I am not persuaded that there were special circumstances that prevented Mr Grenville from objecting within 28 days of being notified of the decision dated 23 April 2021. The Tribunal’s care decision therefore has effect from the date on which Mr Grenville belatedly lodged his objection, which was 10 November 2021: subsection 87AA(1) of the Registration Act.

DECISIONS

The objections officer’s decision is set aside and, in substitution, Mr Grenville is recorded as providing 50% care and Ms Cooksey is recorded as providing 50% care for [Child 1] with effect from 20 April 2021 and for the duration of the interim period, and Mr Grenville is to be recorded as providing 100% care and Ms Cooksey is to be recorded as providing 0% care thereafter (“the Tribunal’s care decision”).

A determination is not made pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988. The Tribunal’s care decision has effect from 10 November 2021.