Horowitz and Alessandri (Child support)

[2020] AATA 4396

Horowitz and Alessandri (Child support) [2020] AATA 4396 (24 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019048; 2020/BC019071; 2020/BC019072

APPLICANT:  Ms Horowitz

OTHER PARTIES:  Child Support Registrar

Mr Alessandri

TRIBUNAL:Member S Letch

DECISION DATE:  24 July 2020

DECISION:

The Tribunal decides to:

(a) affirm the care decision in respect of [Child 1];

(b) vary the care determination in respect of [Child 2] so that care for [Child 2] is recorded as 73% to Ms Horowitz and 27% to Mr Alessandri from 21 September 2018;

(c) decline to make a favourable determination pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988, resulting in the date of effect of the decision in (b) being 9 January 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care for child 1 – existing percentage of care determinations correctly revoked and new determinations made – decision under review affirmed

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 – whether the date of effect should be different – decision under review varied

CHILD SUPPORT – percentage of care – date of effect – whether there were special circumstances that prevented the objection being lodged in time – special circumstances do not exist – refusal to make a determination

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

1. Ms Horowitz and Mr Alessandri are the parents of [Child 1] and [Child 2]. These matters are about how the Child Support Agency (CSA) has recorded the care for the children.

2. Care for [Child 1] had been recorded as 100% to Mr Alessandri when, on 4 July 2018, Ms Horowitz advised the CSA of a change in care following a Court order made [in] May 2018. On 19 July 2018, the CSA decided to record care as 73% to Mr Alessandri and 27% to Ms Horowitz. On 9 January 2020 – notably more than 28 days after Ms Horowitz was notified of the decision – Ms Horowitz lodged an objection. On 9 March 2020, Ms Horowitz’s objection was disallowed. Ms Horowitz applied to the Tribunal for review on 15 May 2020 – again, notably more than 28 days after being notified of the objection decision.

1. Care for [Child 2] had been recorded as 75% to Ms Horowitz and 25% to Mr Alessandri when, on 21 September 2018, Mr Alessandri advised the CSA of a change in care; he disclosed that his care had increased to 37%. On 20 October 2018, the CSA decided to accept that advice and record care as 63% to Ms Horowitz and 37% to Mr Alessandri. On 9 January 2020 – notably more than 28 days after Ms Horowitz was notified of the decision – Ms Horowitz lodged an objection. On 9 March 2020, Ms Horowitz’s objection was allowed and care was recorded as 67% to Ms Horowitz and 33% to Mr Alessandri – but only with effect from 9 January 2020 (the date of Ms Horowitz’s objection as there were no special circumstances which prevented a timely objection: section 87AA of the Child Support (Registration and Collection) Act 1988 (the Act). Ms Horowitz applied to the Tribunal for review on 19 May 2020 – again, notably more than 28 days after being notified of the objection decision.[1]

   [1] The effect of section 95N of the Act is that the date of effect of any favourable AAT decision can only be the day Ms Horowitz applied to the Tribunal in the absence of any special circumstances which prevented a timely application being made.

2. Ms Horowitz and Mr Alessandri participated in the Tribunal’s hearing by conference telephone.

3. The Tribunal explained to the parties that care determinations are “point in time” assessments, with the Tribunal’s task limited to establishing the pattern, or likely pattern, of care at the time of the care change; any subsequent changes are the subject of fresh notifications and separate decisions by the CSA.

4. In respect of [Child 1], Ms Horowitz explained that there was a Court order of May 2018; it set out Ms Horowitz was to have [Child 1] for three nights a fortnight and half the school holidays (27%). Ms Horowitz said that Mr Alessandri’s work schedule was very varied; it was “all over the place”. The CSA told her that due to Mr Alessandri’s work schedule being “so varied” that “they could not [do] anything as there was no set pattern”. Ms Horowitz estimated she was having more than three nights a fortnight; when asked to estimate the situation back in July 2018, she said it could have been an extra two, or up to four, nights a fortnight. She said most of her diary records have only commenced from February this year; the only “real reference” she has for what was going on in July 2018 is texts and emails between herself and Mr Alessandri. She said there were instances where Mr Alessandri dropped [Child 1] off at her house unattended, and after Ms Horowitz had advised Mr Alessandri, in accordance with her legal advice, that she could not have [Child 1].

5. Mr Alessandri told the Tribunal that in July 2018, he was working a varied schedule; however, he said Ms Horowitz was “the last option” to have [Child 1] if his work intervened. He said [Child 1] would often be in the care of his mother or partner. Mr Alessandri said he “compensated Ms Horowitz for extra nights” by calculating the child support rate and paying an equivalent sum to Ms Horowitz. Ms Horowitz conceded Mr Alessandri “occasionally” paid her some money; she said it was “not every time”. She said there had been “regular arguments about money”. Mr Alessandri did not accept that Ms Horowitz had four nights a fortnight  – he said “maybe two a fortnight”, observing that he had also had the children for some “make-up nights”. He said that some time later, there was a period where Ms Horowitz had [Child 1] only two nights a fortnight for a period of about three months; Ms Horowitz said that arrangement had been made on advice from her solicitors.

6. Ms Horowitz told the Tribunal that Mr Alessandri had required her to email him confirming that money he provided directly to her was in lieu of child support, and that Mr Alessandri would claim that amount with the CSA in the following month (known as a “non-agency payment”). She said this was “the only way she could back money from Mr Alessandri”. Mr Alessandri said he did claim non-agency payments for large amounts (in the hundreds of dollars) when Ms Horowitz said she was in need of additional funds; he was referring to smaller amounts of around $40 which he did not claim as non-agency payments. Ms Horowitz said she was “not sure about that”; she said she has “plenty of emails” where Mr Alessandri asked for confirmation that the sums were intended to be in lieu of child support. Ms Horowitz added that because of Mr Alessandri’s decision to enrol [Child 1] at a school a long distance away, she was driving hundreds of kilometres per week and incurring significant fuel expenses.

7. In relation to the late objection, Ms Horowitz said she had been “fobbed off” by the CSA and nobody had listened to her. She was finally able to speak to someone who listened to her and understood her concerns. She accepted that on the basis of the CSA’s information to her, she had formed the view taking it further would not be likely to succeed. In relation to her late application to the Tribunal, Ms Horowitz said that the CSA “took so long to figure it out”; it was the CSA who advised her to “appeal for out of time”. She said she had been communicating her dissatisfaction with the CSA and it was only later that she became aware of the need to apply to the Tribunal. She conceded that she probably missed the advice in the CSA correspondence of the right to apply to the Tribunal within 28 days.

8. In respect of [Child 2]’s care, Ms Horowitz said [Child 2] was “always very reluctant” to stay with Mr Alessandri. She said she encourages [Child 2] to stay with Mr Alessandri. The original orders for [Child 2] were in the same terms as [Child 1]’s care – three nights a fortnight and half the school holidays in Mr Alessandri’s care.  By consent, the arrangement was later changed to four nights (by adding a Thursday night at the start of a “care block”). Mr Alessandri told the Tribunal that he had [Child 2] four nights a fortnight and half the school holidays; if he missed some dates, he “would try to make up for it”. He thought the “minimum amount he would have is 33%”. Ms Horowitz said that recalling the arrangements in September 2018 posed a “really hard question” – she said the arrangements were again flexible and unpredictable due to Mr Alessandri’s work commitments. Ms Horowitz told the Tribunal that she is taking steps through her solicitors to establish that Mr Alessandri has contravened the orders since 2018; she said more recently, she has had both children for 106 nights out of 165 nights. The Tribunal observed that it was confined to considering the pattern, or likely pattern, in 2018, and subsequent changes would require fresh determinations.

Care for [Child 1]

1. The Tribunal must consider the pattern of care, or likely pattern of care, as of July 2018.

2. The evidence of the parties diverged. However, it appeared common ground that at the time, in light of the freshly made Court orders, the starting position for both parents was adherence to the orders. There was a flexible arrangement around Mr Alessandri’s work commitments; it appears Mr Alessandri made some attempts to “make up” nights, or make some small additional financial contributions (the Tribunal noted Ms Horowitz’s observation that she incurred high fuel expenses as a result of the distance to school).

3. The passage of time, and a lack of records retained by Ms Horowitz, makes it difficult to form a reliable view about [Child 1]’s actual care arrangements. On balance, the Tribunal accepted it more likely than not that Ms Horowitz had [Child 1] for some extra nights in her care; however, in the Tribunal’s assessment, the best evidence of the likely pattern of care as of July 2018 were the terms of the recent Court orders. It might be that after a reasonable period of time, a different pattern of care crystallised depending on the number of nights which could be characterised as “missed care events” on the part of Mr Alessandri; however, that is not a matter presently before the Tribunal.

4. Accordingly, the Tribunal considers that the care for [Child 1] as of July 2018 should be reflected by the Court orders allocating Ms Horowitz 27%, and Mr Alessandri 73%, care. As this is the same conclusion as the objections officer, that decision will be affirmed.[2]

[Child 2]’s care

[2] Accordingly, it is not necessary to consider the effects of Ms Horowitz’s late objection and late application to the Tribunal as the original decision is not being changed.

1. As a practical observation, the Tribunal observes there would be no impact to the child support assessment if Mr Alessandri’s care for [Child 2] is recorded anywhere from 14% or 34%. The Tribunal observes it is not clear on what basis the CSA accepted Mr Alessandri’s advice in September 2018 that he had 37% care.

2. Again, the Tribunal considers that in September 2018, it was likely Ms Horowitz was having more nights than prescribed in the original orders. Nevertheless, it is difficult to establish the extent of those extra nights on the available evidence. It might be that by September 2018 (some months after the orders), a new pattern had crystallised. Some time later, it appears that an agreement was made for [Child 2]’s care – at least in principle – to be increased to 4 nights a fortnight. However, it appears indisputable that as of September 2018, Mr Alessandri’s care of [Child 2] involved at least 14% care.

3. The Tribunal finds that, at its highest, Mr Alessandri’s pattern of care in September 2018 should be recorded in accordance with the orders giving him 27% care. The Tribunal will substitute a decision that care for [Child 2] be recorded as 73% to Ms Horowitz and 27% to Mr Alessandri from 21 September 2018 (this has the same practical effect as the objection decision giving Mr Alessandri 33% care as it makes no difference to the child support assessment).

4. As the effect of the Tribunal’s decision is to change the original decision giving Mr Alessandri 37%, the Tribunal is required to consider the effect of Ms Horowitz’s late objection. The favourable decision can only take effect from 9 January 2020 – unless there are special circumstances which prevented a timely objection.

5. The Tribunal understood Ms Horowitz’s explanation of why she did not object, and that she feels as though the CSA had not listened to her. However, inescapably, Ms Horowitz was clearly advised in writing of her objection rights. She made her own assessment – rightly or wrongly – not to proceed as she did not consider it likely she would secure a different decision. This was not a factor which prevented her from objecting; rather, she elected not to take matters further. The Tribunal agrees with the conclusions of the CSA that there is no basis to apply section 87AA, the upshot being that the decision can only take effect from 9 January 2020.[3]

   [3] Given that conclusion, it is not necessary for the Tribunal to consider Ms Horowitz’s late application to the Tribunal.

6. The Tribunal will therefore affirm the decision in respect of [Child 1], and vary the decision in respect of [Child 2] (which will reduce Mr Alessandri’s care percentage from 33% to 27%, which as explained earlier in these reasons, has no practical impact to the child support assessment).

7. The Tribunal observes that in light of Ms Horowitz’s evidence about the current arrangements for the children,  she can choose to make a fresh notification to the CSA that there has been a change in the pattern of care. The CSA would be obliged to consider making fresh care determinations.

DECISION

The Tribunal decides to:

(a) affirm the care decision in respect of [Child 1];

(b) vary the care determination in respect of [Child 2] so that care for [Child 2] is recorded as 73% to Ms Horowitz and 27% to Mr Alessandri from 21 September 2018;

(c) decline to make a favourable determination pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988, resulting in the date of effect of the decision in (b) being 9 January 2020.