Hunscote and Kearns (Child support)

[2022] AATA 3996

Hunscote and Kearns (Child support) [2022] AATA 3996 (29 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/SC024101

APPLICANT:  Ms HUNSCOTE

OTHER PARTIES:  Child Support Registrar

Mr KEARNS

TRIBUNAL:Presiding Member D Tucker

DECISION DATE:  29 September 2022

DECISION:

The decision under review is set aside and in substitution the Tribunal decides that from 5 November 2021 Mr Kearns had 17% care of [Child 1] and Ms Hunscote had 83%.

The Tribunal refuses to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988.

The date of effect of the Tribunal’s decision is 16 June 2022.

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 – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines 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

1. Ms Hunscote (the mother) and Mr Kearns (the father) are the separated parents of [Child 1], (the child) born [in] March 2006.

2. On 2 December 2015 the Child Support Agency (the CSA) began a child support assessment.

3. The previous care percentages recorded for the child were 100% to the mother and 0% to the father from 13 May 2021.

4. There are no court orders or formal parenting agreements in place.

5. On 6 November 2021 the father notified the CSA of a change in care, such that from 5 November 2021 the child was staying with him every second weekend from Friday night to Monday morning, and half her school holidays, according to an informal agreement between the parents. Based on this agreement, he calculated he would have 32% care from 5 November 2021, and the mother would have the balance of 68%.

6. On 11 November 2021, after the mother agreed, the CSA made a new determination according to the father’s notification.

7. However, the next day, on 12 November 2021, the mother objected to this decision, after having time to reflect upon it.

8. On 20 December 2021 the father stated that the new care arrangement was being adhered to and opposed any change to the care percentages.

9. The mother told the CSA that the new arrangement had proved unsustainable as it required the child to travel more than three hours on public transport to her father’s home on a Friday evening after school. It also required her to rise in the early hours of Monday morning to travel back to her school by 9 am. The child found this especially difficult because she suffers fatigue as a symptom of her [medical condition]. Consequently, she missed weekends she was due to be with her father.

10. On 20 January 2022 the CSA decided to disallow the mother’s objection, leaving the care percentages unchanged at 32% and 68% to the father and the mother respectively. The CSA reasoned that the parents had provided conflicting statements and neither had provided any documentary evidence to support their claims, such as care calendars. The CSA sent letters to both parties the same day to give notice of its decision.

11. On 15 June 2022 the mother provided the CSA with a written statement and a calendar indicating that from January to June 2022 the father had 25 of 180 nights possible care, and she had the balance of 155 nights. Based on this, and considering shared care during school holidays, she calculated that she had 298 nights care per year, which is equivalent to 82% care.

12. On 16 June 2022 the mother applied to this Tribunal for further review.

13. On 6 September 2022 the mother and the father gave affirmed evidence via a telephone hearing. The Tribunal also considered relevant documents and submissions provided by the CSA and both parties.

LEGISLATION AND ISSUES

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The Tribunal also considered the Child Support Guide (the Guide) which contains government policy about the application of child support legislation.[1]

   [1] The Tribunal is not bound by such policy, but for the sake of consistency will apply it unless there is a cogent reason not to, in accordance with the rulings by the Federal Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

3. The outstanding question is whether there is a change in care that warrants new care percentages, and, if so, from what date should the new care percentages apply?

CONSIDERATION

Evidence presented at hearing

1. The parents impressed the Tribunal as honest witnesses who engaged with the Tribunal and each other amicably to try and reach a consensus about the dates of their care.

2. The mother told the Tribunal that since 5 November 2021 the child had missed going to her father’s home for scheduled weekends for various reasons. Sometimes it was due to tension in her (the child’s) relationship with the father’s girlfriend. On other occasions, it was due to the child’s poor health or competing social events with her local friends.

3. According to the mother’s statement to the CSA on 15 June 2022, the child had been in the father’s care on average one weekend per month and for one week during school holidays. The child had been hospitalised twice during 2022 and while recently undergoing medical investigations had been 100% in the mother’s care.

4. The father did not dispute this and told the Tribunal that he notified the CSA in early September that the child had been 100% in the mother’s care since mid‑July and that the CSA had determined new care percentages accordingly.

5. The father told the Tribunal that his calendar was broadly an agreement with the mother’s calendar for the period from 5 November 2021 to mid-July 2022, apart from “a couple of weekends here and there” that had been missed.

6. The Tribunal noted there was no calendar from the father included in the hearing papers, and he explained that he was not sure that he had submitted it to either the CSA or the Tribunal and he did not have it with him at the hearing.

7. The father suggested that the mother’s calendar did not include the nights the child spent with him over and after Christmas 2021 when they holidayed together. The father recalled that this holiday was for around seven nights and that the child stayed with him for a few days either side of it, making a total of around 13 nights.

8. The mother stated that some dates were omitted from the calendar she submitted on 15 June 2022, but she had since updated it and could provide a copy to the Tribunal if required.

9. When asked about his care in November and December 2021, the father found it difficult to recall. He said that the arrangements were sporadic and irregular.

10. The mother referred to an email between herself and the father which acknowledged that the child had been in the father’s care on the following dates:

    ·   November 2021: 21, 25–27

    ·   December 2021: 15–27

11. The father agreed that these dates seemed correct.

12. The father recalled that he had the child in his care from 3–10 January 2022, because he returned her to the mother the day after [a family event]. The mother was not sure that these dates were correct and undertook to check her records.

13. The father also recalled that there were “a couple of weekends” that he had care of the child between February–June that were omitted from the mother’s original calendar, which had been verified using photographs taken by the child while staying with him. The father remembered that he had emailed these additional dates to the mother.

14. The mother said that she had emails that the father sent about additional dates, but they only referred to the dates in December 2021 and January 2022 discussed above. However, she undertook to check her computer at home after the hearing to see if she could retrieve any other relevant emails from the father.

15. During the hearing, the father retrieved an email exchange that referred to the child staying with him on the last weekend of school holidays in January 2022, which he believed was the weekend of 22–23 January 2022. The mother did not dispute this and recalled that the child had stayed with the father on the last weekend before school, and it was agreed that the child had started first term at school on either 26 or 27 January 2022.

16. The parents agreed that the child was with the father on the following dates:

    ·   February 2022: 18–20

    ·   April 2022: 3–5, 17–23, 29–30

    ·   May 2022: 1, 28–30

17. Based on the evidence provided by both parents at the hearing, the Tribunal calculated that from 5 November 2021 to 14 July 2022, the father had 50/269 days of care, equivalent to 18%.

18. The mother told the Tribunal that she had amended her calendar after conferring with the father about his care dates. The Tribunal allowed her to submit it after the hearing. It differed to a degree with its previous iteration. It was shared with the father, who did not offer comments or corrections. This calendar showed the father had 44/269 days of care between 5 November 2021 and 14 July 2022, equivalent to 16%.

Was there a change in care that warrants new care percentages?

1. Existing care percentages apply until the CSA becomes aware of a change in care which warrants their revocation and the making of new care percentages.

2. Decision makers are obliged to revoke care percentages in the following circumstances:

   · a person no longer has a care percentage of at least 14%, the child is made available to the other parent and the CSA is notified of the change within a reasonable time (section 54G of the Act); or

   · section 54G does not apply and the person’s actual care does not correspond with the percentage of care reflected to them, such that, if it was applied, it would change their cost percentage (section 54F of the Act).

3. Section 54A of the Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period. In the absence of any contrary contention by either party the Tribunal finds this approach is appropriate in this case.

4. There is no dispute that there was a change in care from 5 November 2021 that was agreed and anticipated to give the father 32% care. However, for reasons discussed above this did not occur. The area of uncertainty is what actual care occurred from that date.

5. The mother and the father impressed the Tribunal as honest witnesses who did their best to cooperatively account for their shared care from 5 November 2021 using incidental contemporaneous records such as text messages and photographs.

6. According to the evidence collected at the time of the Tribunal hearing, the father had 18% care from 5 November 2021. According to the mother’s revised calendar submitted after the hearing, he had 16% care.

7. It is impossible to be certain whether either of these figures is correct. In the interests of fairness in the face of imprecision and uncertainty, the Tribunal finds that the father had 17% care from 5 November 2021.

8. Based on this finding, the Tribunal finds that the existing care percentages must be revoked pursuant to section 54F of the Act and that from 5 November 2021 the percentages of care were 17% and 83% to the father and the mother respectively.

From what date should the new care percentages apply?

1. Child support legislation includes timeframes that govern when objection decisions and decisions by this Tribunal will take effect. The object of these timeframes is to encourage parents to exercise their appeal rights promptly. In most instances, the legislated timeframe is 28 days, unless the parties are in a foreign jurisdiction or there are special circumstances that warrant an extension of this time limit.

2. The mother lodged a timely objection to the CSA’s original decision. On 20 January 2022 the CSA decided not to allow her objection. On 16 June 2022, almost five months later, the mother lodged an application for further review by this Tribunal.

3. According to subsection 95N(1) of the Registration Act, if a person applies to this Tribunal more than 28 days after receiving notice of the CSA’s objection decision, and the Tribunal changes the objection decision, identifying different care percentages, then the Tribunal’s decision will take effect from the date the person applied to the Tribunal for review.

4. Subsection 95N(2) of the Registration Act allows decision makers to make an exception to this general rule by granting an extension of time to apply, where special circumstances prevented the person applying to the Tribunal within 28 days. Examples of special circumstances may include a serious illness or accident, a personal trauma such as a death in the family, a natural disaster, communication difficulties such as isolation, illiteracy or poor English-language skills, or the person reasonably relying upon inaccurate or misleading information. In this instance, there is no evidence of such special circumstances and consequently the Tribunal decides that it is not appropriate to make a determination pursuant to subsection 95N(2) and consequently the date of effect of the Tribunal’s decision is 16 June 2022.

DECISION

The decision under review is set aside and in substitution the Tribunal decides that from 5 November 2021 Mr Kearns had 17% care of [Child 1] and Ms Hunscote had 83%.

The Tribunal refuses to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988.

The date of effect of the Tribunal’s decision is 16 June 2022.