Hinton and Hinton (Child support)

[2018] AATA 5036

Hinton and Hinton (Child support) [2018] AATA 5036 (10 December 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015077

APPLICANT:  Mr Hinton

OTHER PARTIES:  Child Support Registrar

Mrs Hinton

TRIBUNAL:Member S Letch

DECISION DATE:  10 December 2018

DECISION:

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

(a)care for [Child 1], [Child 2], [Child 3], and [Child 4] is to be recorded as 79% to Mr Hinton and 21% to Mrs Hinton from 18 July 2017 to 4 December 2017, with effect from 3 October 2017 (the date of notification of the change in care);

(b)the Tribunal decides to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988, resulting in the date of effect of the Tribunal’s decision in (a) being 3 October 2017.

CATCHWORDS

CHILD SUPPORT – percentage of care – care of child taking place in contravention of court order – reasonable action to enforce court order – interim care determination – decision under review set aside and substituted

CHILD SUPPORT – date of effect determination – application for review lodged more than 28 days after the objection decision – “alignment of care” regime results in confusion – special circumstances – decision to make a determination

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 DECISION

BACKGROUND

1. Mr Hinton and Mrs Hinton are the parents of [Child 1], [Child 2], [Child 3], and [Child 4]. Care of the children had been recorded as 100% to Mr Hinton when, on 3 October 2017, Mrs Hinton reported to the Child Support Agency (CSA) that she had 100% care of the children.

2. On 15 December 2017, the CSA decided that, in accordance with court orders made on 18 July 2017 giving Mrs Hinton school holiday care, care should be recorded as 77% to Mr Hinton and 23% to Mrs Hinton, with effect from 7 October 2017.

3. On 20 December 2017, Mrs Hinton objected to the decision. On 14 March 2018, the objections officer decided that Mrs Hinton should be recorded as having 100% care of the children from 7 October 2017. A subsequent decision was made recording Mr Hinton having 100% care from 5 December 2017 following an application by Mr Hinton to the Court for recovery of the children after Mrs Hinton failed to return them to his care on 7 October 2017 (that later determination is a separate decision, and not before the Tribunal).[1]

   [1] Despite Mr Hinton taking steps to enforce the court order in place at the relevant time, the objection officer did not give any consideration to the interim care provisions.

4. On 21 September 2018 (notably, more than 28 days after receipt of the objections decision), Mr Hinton applied to the Tribunal for review of the objection officer’s decision. A hearing took place on 10 December 2018; prior to the hearing, Mrs Hinton advised the Tribunal she did not wish to participate in proceedings. Mr Hinton participated in the hearing by conference telephone and gave sworn evidence.

CONSIDERATION

1. Mr Hinton told the Tribunal that he had 100% care of the children when, on 18 July 2017, orders were made giving Mrs Hinton school holiday care (on the Tribunal’s calculations, the orders were to give Mrs Hinton 11 weeks of school holidays over a 12 month period, or 21% care). He immediately took legal action (supported by documents in the CSA materials) for recovery when Mrs Hinton unilaterally decided to retain care of the children on 7 October 2017 when she was due to return them. Ultimately, the Court ordered the children back to Mr Hinton’s 100% care on 5 December 2017.  Mr Hinton said the Court rejected what he said were completely baseless allegations that the children would be in any danger in his care.

Application of the law

1. Sections 49 and 50 of the Child Support (Assessment) Act 1989 (the Act) require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination should be revoked. Subsection 54F(1) provides that the determination must be revoked in circumstances where, as here, a different cost percentage would apply if the care percentage determination was changed. 

2. There was no dispute that Mrs Hinton, in breach of court orders, retained the children following the September 2017 school holidays. She had the children in her care until 5 December 2017, when the court ordered the children be returned to Mr Hinton’s 100% care.

3. The Tribunal finds that the existing determination giving Mr Hinton 100% care should be revoked, and a new determination made with effect from 18 July 2017 when a new pattern of care was established by court orders. The reported change was made on 3 October 2017, outside the 28 days following the change; the change can only take effect from 3 October 2017.[2]

   [2] The CSA materials record a file note dated 5 October 2017 concerning a report of a change in care (folio 11); the Tribunal accepted the evidence from CSA that an “electronic notification” had earlier been provided on 3 October 2017. 

4. Having made that revocation, section 51 of the Act applies. Subsections 51(2) and (3) operate where the actual care of a child differs from a care arrangement and, under paragraph 51(1)(d), the person with reduced care (here, Mr Hinton) has taken reasonable action to ensure that the care arrangement is complied with. If so satisfied, the proper care determination for child support purposes is the percentage that corresponds with the extent of care Mr Hinton should have had under the agreement (79%). Paragraph 54C(1)(c) provides that this percentage applies during an interim period of 14 weeks. 

10.The Tribunal is comfortably satisfied that Mr Hinton took all reasonable steps to have the court orders enforced. He is entitled to the benefit of an interim period.   

11.However, that is not the end of the matter. Subsection 51(5) of the Act states that subsections 51(2) and (3) do not have to be applied if special circumstances exist in relation to the child.

12.The Tribunal is not satisfied that special circumstances existed. Mrs Hinton has made some broad, unsubstantiated allegations about risks to the children. Relevantly, the court ordered the children be returned to Mr Hinton’s care in December 2017.  The Tribunal is not satisfied that the evidence established that the children were in danger of imminent harm at the time Mrs Hinton unilaterally elected to keep them in her care.    

13.The Tribunal therefore concludes that an interim period should apply. Mrs Hinton was in breach of the orders from Saturday 7 October 2017; an interim period will apply from 7 October 2017 to 4 December 2017 (a total period of less than 14 weeks).

Mr Hinton’s late application to the Tribunal

14.Section 95N of the Child Support (Registration and Collection) Act 1988 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 the 28 days, the Tribunal may allow for a longer application period.

15.Mr Hinton told the Tribunal that he had agitated the matter with Centrelink after receiving the objection decision; he was told that an authorised review officer would be required (despite the existence of the objection decision). He continued to agitate and waited patiently until he was then advised he needed to come to the Tribunal. Tribunal computer records confirm Mr Hinton made an application on 2 July 2018 through the “Centrelink portal”; following advice from Centrelink that there had been no authorised review officer decision, the matter was dismissed by the Tribunal for want of jurisdiction (which, if Mr Hinton’s application was properly understood, was incorrectly dismissed). He continued to agitate with CSA until he was finally advised he needed to come back to the Tribunal via the “child support portal”.

16.This was clearly not a case of Mr Hinton “sitting on his hands”. In the Tribunal’s experience, the “alignment of care” regime results in confusion amongst Centrelink and CSA officers. The Tribunal is satisfied Mr Hinton was making his best efforts to challenge the decision in reliance on advice from Centrelink and CSA officers. 

17.The Tribunal finds that there were special circumstances which prevented Mr Hinton applying to the Tribunal within 28 days. The Tribunal will make a determination pursuant to section 95N in Mr Hinton’s favour.

18.The practical result of the Tribunal’s decision is that care for the children as 79% to Mr Hinton and 21 % to Mrs Hinton will take effect from 3 October 2017 (the date of initial notification); that determination will continue from 7 October 2017 until 4 December 2017 in accordance with an interim period applying in Mr Hinton’s favour.

1. As this is a different conclusion to the objection officer, the decision will be set aside.

DECISION

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

(a)care for [Child 1], [Child 2], [Child 3], and [Child 4] is to be recorded as 79% to Mr Hinton and 21% to Mrs Hinton from 18 July 2017 to 4 December 2017, with effect from 3 October 2017 (the date of notification of the change in care);

(b)the Tribunal decides to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988, resulting in the date of effect of the Tribunal’s decision in (a) being 3 October 2017.