Hipkins and Cordray (Child support)
[2023] AATA 424
•19 January 2023
Hipkins and Cordray (Child support) [2023] AATA 424 (19 January 2023)
DIVISION:Social Services & Child Support Division
REVIEW NUMBERS: 2022/AC024633; 2022/AC024645 and 2022/AC024646
APPLICANT: Miss Hipkins
OTHER PARTIES: Child Support Registrar
Mr Cordray
TRIBUNAL:Member J Prentice
DECISION DATE: 19 January 2023
DECISIONS:
2022/AC024633:
The decision under review is affirmed.
2022/AC024646:
The Tribunal sets aside the decision under review such that, in respect of [Child 1]:
The existing percentage of care determination of 72% to Miss Hipkins is revoked from 30 April 2020 and replaced with a new percentage of care determination of 50% applying from 1 May 2020; and
The existing percentage of care determination of 28% to Mr Cordray is revoked from 7 November 2021 and replaced with a new percentage of care determination of 50% applying from 8 November 2021.
The Tribunal determines pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Miss Hipkins’s application for review was made within that period.
2022/AC024645:
The Tribunal sets aside the decision under review and, in substitution, decides that there is no change of care from 4 October 2020.
The Tribunal determines pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Miss Hipkins’s application for review was made within that period.
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 - whether there were special circumstances that prevented the application for review being lodged in time - special circumstances exist - tribunal decides to make a determination under subsection 95N(2)
CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review set aside and substituted
CHILD SUPPORT – date of effect of the tribunal’s decision – late application for review - whether there were special circumstances that prevented the application for review being lodged in time - special circumstances exist - tribunal decides 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
As relevant to this application, Miss Hipkins and Mr Cordray are parties to a child support case registered with Services Australia – the Child Support Agency (the CSA) in relation to financial support to be provided for [Child 1] (born August 2017) (the child). These applications concern three decisions of the CSA about the recorded care for the child utilised in calculation of the child support liability.
From 1 May 2019 the pre-existing percentages of care applying in the child support case for the child were 100% to Miss Hipkins (effective from 7 June 2019) and 0% to Mr Cordray (effective from 1 May 2019).
With respect to application 2022/AC024633, on 15 February 2021, following notification of a change of care by Miss Hipkins, the CSA recorded the care for the child as 72% to Miss Hipkins and 28% to Mr Cordray from 23 April 2020. Notably, as Miss Hipkins notified the change of care on 7 February 2021, more than 28 days after the change of care was found to have occurred on 23 April 2020, the recorded increased percentage of care determination from 0% to 28% for Mr Cordray applied from 7 February 2021 (the date of notification). However, the recorded decreased percentage of care determination from 100% to 72% for Miss Hipkins applied from 23 April 2020 (the date of the care change) (see pages 51 to 54 of Exhibit 1).
With respect to application 2022/AC024646, on 3 March 2022, (on advice from Centrelink) the CSA recorded the care for the child as 0% to Miss Hipkins and 100% to Mr Cordray from 1 May 2020. Notably, as the change of care is recorded as having been notified on 8 November 2021[1], more than 28 days after the change of care was found to have occurred on 1 May 2020, the recorded increased percentage of care determination to 100% for Mr Cordray applied from 8 November 2021 (the date of notification). However, the recorded decreased percentage of care determination to 0% for Miss Hipkins applied from 1 May 2020.
[1] See Exhibit 1, page 225
With respect to application 2022/AC024645, on 3 March 2022 (on advice from Centrelink) the CSA recorded the care for the child as 50% to Miss Hipkins and 50% to Mr Cordray from 4 October 2020. Notably, as the change of care is recorded as having been notified on 8 November 2021, more than 28 days after the change of care was found to have occurred on 4 October 2020, the recorded increased percentage of care determination to 50% for Mr Cordray applied from 8 November 2021 (the date of notification). However, the recorded decreased percentage of care determination to 50% for Miss Hipkins applied from 4 October 2020 (see pages 120 to 123 and pages 130 to 133 of Exhibit 1).
On 7 March 2022 Miss Hipkins is recorded as lodging objections to the following three decisions of the CSA (see pages 139 and 140 of Exhibit 1):
1st Care Decision to partially accept care
Date of Event: 01/05/2020
Date of Notification 08/11/2021
Care decision for Mr Cordray: 100%
Care decision for Miss Hipkins: 0%
2nd Care Decision to accept care change
Date of Event: 04/10/2020
Date of Notification: 08/11/0201
Care decision for Mr Cordray: 50%
Care decision for Miss Hipkins: 50%
3rd Care Decision to reject the following care
80% to Mr Cordray
20% to Miss Hipkins
DOV: 20/01/2021
DOR: 08/11/2021
60% to Mr Cordray
40% to Miss Hipkins
DOV: 04/04/2021
DOR: 08/11/2021
75% to Mr Cordray
25% to Miss Hipkins
DOV: 16/07/2021
DOR: 08/11/2021
Neither Mr Cordray or Miss Hipkins had provided evidence, verbal or other, to the CSA.
On 6 May 2022 a CSA objections officer disallowed all the objections. Notably, the first objection decision (Exhibit 1, pages 10 to 11) refers to the decision to record 72% care to Miss Hipkins and 28% care to Mr Cordray as having been made on 3 March 2022. However, the CSA’s records show that decision was made on 15 February 2021 following notification of the change of care by Miss Hipkins on 7 February 2021. Further, it does not seem based upon the record of Miss Hipkins’s contact on 7 March 2022 referred to in the preceding paragraph of these Reasons, that Miss Hipkins disputes the change of care recorded from 23 April 2020 and she did not dispute that change at the hearing before the Tribunal. In any event, the Tribunal notes that the first objection decision disallows any objection to that decision, with the decision to record care as 72% to Miss Hipkins and 28% to Mr Cordray therefore standing.
The second objection decision (Exhibit 1, pages 21 and 22) also disallows the objection, that is disallows the objection to the decision to record care as 50% to Miss Hipkins and 50% to Mr Cordray from 4 October 2020, with that decision therefore standing.
The third objection decision (Exhibit 1, pages 32 and 33) also disallows the objection, that is disallows the objection to the decision to record care as 0% to Miss Hipkins and 100% to Mr Cordray from 1 May 2020, with that decision therefore standing.
On 9 September 2022, Miss Hipkins lodged an application with the Tribunal seeking an independent review of the CSA’s decision stating (unedited)
Because I have always been the principle carer of my son [Child 1], I had no access to my diary that had the dates of when he was with me due to them being in storage. I have now managed to obtain the diary that had the relevant information and am now able to provide copies of this as well as the previously supplied documentation from health care professionals, enrolments etc.
The hearing of the applications was held on 6 December 2022. Miss Hipkins participated in the hearing by conference telephone and gave evidence on affirmation. The Tribunal attempted to contact Mr Cordray on the number he had provided, however the calls went to voice mail. Miss Hipkins told the Tribunal that she had spoken to Mr Cordray and he had indicated he was aware of the hearing. The Tribunal left two voice mail messages for Mr Cordray, the latter one advising that if he wished to participate in the Hearing, he should contact the Tribunal. The Presiding Officer then contacted the Tribunal’s registry team and asked them to continue to attempt to contact Mr Cordray. After approximately ten minutes the registry messaged to say that they had spoken to Mr Cordray and he would not be participating in the hearing. The Child Support Registrar did not participate in the hearing and did not attend.
In considering the applications, the Tribunal took into account the oral evidence of Miss Hipkins and the documentary material provided by the CSA to the Tribunal and the applicant (marked Exhibit 1, pages 1 to 236) and documents provided by Miss Hipkins prior to the hearing (marked Exhibit A, pages A1 to A6). Copies of all documents were exchanged with all parties. Mr Cordray had not made any submissions.
There are a number of background circumstances of understandable importance to Miss Hipkins which were raised in evidence which are not relevant to the issues before the Tribunal. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.
RELEVANT LEGISLATION
14. 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 Registration Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.
15. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.
16. Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.
17. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless the CSA is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.
18. The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.
19. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.
20. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Topic 2.2.1 of the Guide contains the following guidance in this regard:
Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.
21. Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or section 50 of the Act.
22. The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.
23. However, in certain circumstances, pursuant to section 51, parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing; that is, an interim care determination may apply.
24. There is no time limit on a person lodging an application for review with this Tribunal, of a decision on objection relating to the determination of a percentage of care. However, if an application to the Tribunal is made more than 28 days after the notice of the objection decision was served upon the person, and the Tribunal’s decision is to vary or substitute a decision on that objection, the Tribunal’s decision only takes effect from the day the application for review was made unless there are special circumstances that prevented the application from being made within that 28-day period, pursuant to subsection 95N(2) of the Registration Act.
ISSUES
25. It follows that the issues to be determined by the Tribunal are as follows:
(a)Are the pre-existing percentage of care determinations for Miss Hipkins and Mr Cordray to be revoked? And, if so,
(b)What are the new percentage of care determinations for Miss Hipkins and Mr Cordray? And,
(c)What is the date of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?
CONSIDERATION
26. It is not in dispute that Miss Hipkins had 100% care of the child until 30 April 2019.
27. Miss Hipkins informed the Tribunal that she and Mr Cordray had an amicable relationship and good communication and neither she, nor Mr Cordray, had advised Centrelink of the change in care arrangements she is disputing. Miss Hipkins believes the change in care was reported by Mr Cordray’s former girlfriend.
28. Miss Hipkins explained to the Tribunal that Mr Cordray had not lodged his tax return for more than six years and in that time he had over-estimated his income to the CSA which had resulted in a child support debt of approximately $17,000 owed to her, as she was not working during that period. Miss Hipkins noted that she had agreed to private collect, however she had not received any income for the first three years of separation. Miss Hipkins commented that she understood Mr Cordray needed to sort out the debt as he wanted to get a housing loan and his girlfriend at the time had worked for Centrelink and she was the one who notified changes in the care arrangements.
29. Miss Hipkins told the Tribunal that she had notified the CSA that Mr Cordray had care of the child every second weekend from February 2020; and she did this online as otherwise she had to hold on too long.
30. The Tribunal noted that care every second weekend is 86% care to Miss Hipkins and 14% to Mr Cordray – not 72% and 28%. However, Miss Hipkins commented that as the child was not yet attending school and was in child care, the arrangements were fairly ad hoc and did occasionally change and she is prepared to accept the CSA determination of 72% care to her and 28% care to Mr Cordray from 23 April 2020 based upon her advice that the percentages were 72%/28%.
31. Miss Hipkins told the Tribunal that from 1 May 2020 there had been disputes about the care arrangements; and she strongly disagrees that Mr Cordray had 100% care of the child. Miss Hipkins advised the Tribunal that she had the majority care of the child from 1 May 2020; however she is prepared to accept a shared care determination of 50/50 from 1 May 2020 in the interests of resolving the issue and minimising future appeals.
32. Miss Hipkins advised the Tribunal that she pays all the costs associated with the child, including when the child is in Mr Cordray’s care; and she pays all the school fees and health care costs. The Tribunal advised Miss Hipkins that while any care decision will affect costs, that further care determinations and consequential decisions with respect to the child support liability payable are not part of the matters currently before the Tribunal.
33. In summary, Miss Hipkins submits that the care arrangements were:
From 1 May 2019 100% to Miss Hipkins 0% to Mr Cordray
From 23 Apr 2020 72% to Miss Hipkins 28% to Mr Cordray
From 1 May 2020 50% to Miss Hipkins 50% to Mr Cordray
From 4 Oct 2020 50% to Miss Hipkins 50% to Mr Cordray
As can be seen, having had the opportunity to clarify Miss Hipkins’s position, her application relates to the decision to record care as 100% to Mr Cordray and 0% to her from 1 May 2020 with Miss Hipkins otherwise agreeing with the decisions made by the CSA identified in paragraphs 3 to 5 of these Reasons. That leaves the further care notifications and ensuing decisions, identified by the CSA on 7 March 2021 as follows (and referred to in paragraph 7 of these Reasons):
3rd Care Decision to reject the following care
80% to Mr Cordray
20% to Miss Hipkins
DOV: 20/01/2021
DOR: 08/11/202160% to Mr Cordray
40% to Miss Hipkins
DOV: 04/04/2021
DOR: 08/11/202175% to Mr Cordray
25% to Miss Hipkins
DOV: 16/07/2021DOR: 08/11/2021
Each of these notifications of change of care were rejected by the CSA and Miss Hipkins does not dispute those rejections.
Having had regard to all of the evidence the Tribunal considers that there are two care periods in issue in relation to these applications, that is the care periods commencing 23 April 2020 and 1 May 2020. The Tribunal is satisfied based on the evidence that the pattern of care of the child for those periods is as follows:
| FROM | % care to MISS HIPKINS | % care to MR CORDRAY |
| 23 April 2020 | 72% | 28% |
| 1 May 2020 | 50% | 50% |
Issue 1 - Are the pre-existing percentage of care determinations for Miss Hipkins and Mr Cordray to be revoked?
Subsection 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, section 54G does not apply and section 51 does not apply or no longer applies.
Section 55C contains a table that is used to work out a person’s cost percentage:
Cost percentages
Item
Column 1
Percentage of care
Column 2
Cost percentage
1
0 to less than 14%
Nil
2
14% to less than 35%
24%
3
35% to less than 48%
25% plus 2% for each percentage point over 35%
4
48% to 52%
50%
5
more than 52% to 65%
51% plus 2% for each percentage point over 53%
6
more than 65% to 86%
76%
7
more than 86% to 100%
100%
Section 54G provides that a care determination must be revoked if a parent was to have at least regular care pursuant to a pre-existing percentage of care determination, they have no care or less than regular care (subsection 5(2) defines regular care as being care between 14% and 35%) despite the other responsible person making care available and the change in care was notified within a reasonable period of time. In relation to the 23 April 2020 change of care Miss Hipkins notified the change on 7 February 2021, many months after the change occurred such that the Tribunal is not satisfied the change was notified within a reasonable period. Section 54G therefore does not apply to that change of care. As regards the 1 May 2020 change of care, neither parent’s care reduced to less than 14%. Section 54G therefore also does not apply to that change of care.
AC024633 – Original decision to change care and record 72% to Miss Hipkins and 28% to Mr Cordray from 23 April 2020
The Tribunal has found that the care of the child changed to 72% to Miss Hipkins and 28% to Mr Cordray from 23 April 2020. 72% care to Miss Hipkins and 28% care to Mr Cordray does not correspond with the pre-existing percentage of care determinations recorded by the CSA as at 23 April 2020 of 100% to Miss Hipkins and 0% to Mr Cordray. A change in care to 72% to Miss Hipkins and 28% to Mr Cordray from 23 April 2020 would change each parent’s cost percentage pursuant to the table in section 55C.Section 51 does not apply. The existing percentages of care of 100% to Miss Hipkins and 0% to Mr Cordray are therefore required to be revoked pursuant to section 54F.
AC024646 – Original decision to change care and record 0% to Miss Hipkins and 100% to Mr Cordray from 1 May 2020
The Tribunal has found that the care of the child changed to 50% to Miss Hipkins and 50% to Mr Cordray from 1 May 2020. 50% care to Miss Hipkins and 50% care to Mr Cordray does not correspond with the pre-existing percentage of care determinations then recorded by the CSA as at 1 May 2020 of 72% to Miss Hipkins and 28% to Mr Cordray. A change in care to 50% to Miss Hipkins and 50% to Mr Cordray from 1 May 2020 would change each parent’s cost percentage pursuant to the table in section 55C.
Section 51 does not apply.
The existing percentages of care as at 1 May 2020 of 72% to Miss Hipkins and 28% to Mr Cordray are therefore required to be revoked pursuant to section 54F.
AC024645 – Original decision to change care and record 50% to Miss Hipkins and 50% to Mr Cordray from 4 October 2020
The Tribunal has found that the care of the child changed to 50% to Miss Hipkins and 50% to Mr Cordray from 1 May 2020. Therefore as at 4 October 2020 the then recorded percentages of care for the child were 50%/50% shared care such that the care occurring as at 4 October 2020 was in accordance with the then recorded percentages of care (after implementation of the Tribunal’s decision in relation to application AC024646). This means that the objection decision in relation to AC024645 must be set aside with a finding that there was no change in care from 4 October 2020.
Issue 2 - What are the new percentage of care determinations for Miss Hipkins and Mr Cordray?
AC024633 – Original decision to change care and record 72% to Miss Hipkins and 28% to Mr Cordray from 23 April 2020
Percentage of care determinations are required pursuant to subsection 50(2). The Tribunal determines that with respect to application 2022/AC024633, Miss Hipkins’s percentage of care for the child is 72% and Mr Cordray’s percentage of care for the child is 28%.
AC024646 –Original decision to change care and record 0% to Miss Hipkins and 100% to Mr Cordray from 1 May 2020
Percentage of care determinations are required pursuant to subsection 50(2). The Tribunal determines that with respect to application 2022/AC024646, Miss Hipkins’s percentage of care for the child is 50% and Mr Cordray’s percentage of care for the child is 50%.
AC024645 – Original decision to change care and record 50% to Miss Hipkins and 50% to Mr Cordray from 4 October 2020
Given the Tribunal’s finding that there was no change of care as notified from 4 October 2020 (as the care had already changed to 50%/50% from 1 May 2020), it is not necessary to consider this issue.
Issue 3 - What is the date of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?
AC024633 – Original decision to change care and record 72% to Miss Hipkins and 28% to Mr Cordray from 23 April 2020
Pursuant to subparagraph 54F(3)(b), as the change in care was notified by Miss Hipkins on 7 February 2021, more than 28 days after the Tribunal has found the change occurred on 23 April 2020, there are different dates of effect for the revocation of the parties’ respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care of 100% recorded for Miss Hipkins takes effect the day before the notification of the change of care, that is on 6 February 2021 and revocation of the pre-existing percentage of care of 0% recorded for Mr Cordray takes effect the day before the change of care day, that is on 22 April 2020.
AC024646 – Original decision to change care and record 0% to Miss Hipkins and 100% to Mr Cordray from 1 May 2020
Pursuant to subparagraph 54F(3)(b), as the change in care has been recorded as being notified on 8 November 2021, more than 28 days after the Tribunal has found the change occurred on 1 May 2020, there are different dates of effect for the revocation of the parties’ respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care of 72% recorded for Miss Hipkins takes effect the day before the notification of the change of care, that is on 7 November 2021 and revocation of the pre-existing percentage of care of 28% recorded for Mr Cordray takes effect the day before the change of care day, that is on 30 April 2020.
It is then necessary to determine from when the percentage of care determinations are to apply.
AC024633 – Original decision to change care and record 72% to Miss Hipkins and 28% to Mr Cordray from 23 April 2020
Pursuant to section 54B, new percentage of care determinations apply from the application day, that is the day immediately after revocation of the previous percentage of care determinations. Therefore a new percentage of care determination of 28% to Mr Cordray applies from 7 February 2021 (date of notification of change of care] and a new percentage of care determination of 72% for Miss Hipkins applies from 23 April 2020.
AC024646 – Original decision to change care and record 0% to Miss Hipkins and 100% to Mr Cordray from 1 May 2020
Pursuant to section 54B, new percentage of care determinations apply from the application day, that is the day immediately after revocation of the previous percentage of care determinations. Therefore a new percentage of care determination of 50% to Mr Cordray applies from 8 November 2021 (date of notification of change of care) and a new percentage of care determination of 50% for Miss Hipkins applies from 1 May 2020.
53. The objection decisions of 6 May 2022 were sent to the parties under cover of a letter dated 6 May 2022. Miss Hipkins’s applications was made to the Tribunal on 9 September 2022. The applications to the Tribunal were therefore made more than 28 days after notice of the objection decision was given to Miss Hipkins.
54. Given the Tribunal’s decision is to change the objection decision in relation to AC024646, the Tribunal considered whether there were special circumstances that prevented the application to the Tribunal from being made within the 28 days after the notice of the objection decision being given to the Miss Hipkins. Chapter 4.1.8 of the Guide notes that such consideration should involve the question of whether the decision to extend the period in which to lodge the objection will prejudice the other parent and whether the applicant “rested on their rights” (that is, did the person objecting make any efforts to communicate to the CSA that they disputed the care decision?). Examples of special circumstances are given as including illness or accident stopping an objection from being lodged, suffering a personal trauma such as a death in the family, communication difficulties or reasonably relying upon inaccurate or misleading information. Miss Hipkins explained to the Tribunal that the change in care advice had been unexpected and she immediately lodged objections to all three decisions to protect her rights. However she was about to move home and her records of care of her son were in storage (as they were two years old). Miss Hipkins was therefore delayed in lodging her application with the Tribunal until she had moved home and retrieved her records from storage. As soon as she had sorted out her boxes and the appropriate documents, Miss Hipkins lodged her application to the Tribunal. Taking all of these circumstances into account together, the Tribunal is satisfied that in the particular circumstances of this matter that there were special circumstances which prevented Miss Hipkins from applying to the Tribunal within 28 days of being given the objection decision such that the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Miss Hipkins’s AC024646 application for review was made within the required period.
AC024645 – Original decision to change care and record 50% to Miss Hipkins and 50% to Mr Cordray from 4 October 2020
55. The Tribunal has found that there was no change of care as notified from 4 October 2020. For completeness, the Tribunal is also satisfied that in the particular circumstances of this matter that there were special circumstances which prevented Miss Hipkins from applying to the Tribunal within 28 days of being given the objection decision such that the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Miss Hipkins’s AC024645 application for review was made within the required period.
Conclusion:
AC024633 – Original decision to change care and record 72% to Miss Hipkins and 28% to Mr Cordray from 23 April 2020
As the Tribunal has reached the same decision as that of the objections officer in relation to application AC024633, the decision under review will be affirmed
AC024646 –Original decision to change care and record 0% to Miss Hipkins and 100% to Mr Cordray from 1 May 2020
As the Tribunal has reached a different decision to that of the objections officer in relation to application AC024646, the decision under review will be set aside and a new decision substituted that care is to be recorded as 50% to Miss Hipkins from 1 May 2020 with effect from 1 May 2020 and care is to recorded as 50% to Mr Cordray from 1 May 2020 with effect from 8 November 2021.
AC024645 – Original decision to change care and record 50% to Miss Hipkins and 50% to Mr Cordray from 4 October 2020
58. As the Tribunal has reached a different decision to that of the objections officer in relation to application AC024645, the decision under review will be set aside and a new decision substituted that no change of care is to be recorded with care then remaining at the new determined levels of care of 50% to Miss Hipkins (with effect from 1 May 2020) and 50% to Mr Cordray from 1 May 2020 (with effect from 8 November 2021) as a consequence of the decision in relation to application AC024646.
OTHER MATTERS
59. As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, and the CSA then is tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision. The Tribunal notes that as at the date of receipt of Exhibit 1 from the CSA, there was further care change notified 20 August 2022 which was awaiting a decision. That subsequent notification, and any subsequent decision in relation to that notification is not before the Tribunal in relation to these applications for review.
DECISIONS
2022/AC024633:
The decision under review is affirmed.
2022/AC024646:
The Tribunal sets aside the decision under review such that, in respect of [Child 1]:
The existing percentage of care determination of 72% to Miss Hipkins is revoked from 30 April 2020 and replaced with a new percentage of care determination of 50% applying from 1 May 2020; and
The existing percentage of care determination of 28% to Mr Cordray is revoked from 7 November 2021 and replaced with a new percentage of care determination of 50% applying from 8 November 2021.
The Tribunal determines pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Miss Hipkins’s application for review was made within that period.
2022/AC024645:
The Tribunal sets aside the decision under review and, in substitution, decides that there is no change of care from 4 October 2020.
The Tribunal determines pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Miss Hipkins’s application for review was made within that period.
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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Statutory Construction
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