Hurndall and Hurndall (Child support)

[2022] AATA 1555

Hurndall and Hurndall (Child support) [2022] AATA 1555 (2 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/PC023208 & 2022/PC023272

APPLICANT:  Mrs Hurndall

OTHER PARTIES:  Child Support Registrar

Mr Hurndall

TRIBUNAL:Member D Cox

DECISION DATE:  2 May 2022

DECISION:

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

(1)The objections officer’s decision of 7 January 2022 is set aside and substituted with a decision to allow the objection so as to make a care percentage determination reflecting that care of [Child 1], [Child 2] and [Child 3] is recorded as 83% to Mrs Hurndall and 17% to Mr Hurndall from 12 May 2020, pursuant to section 50 of the Child Support (Assessment) Act 1989 (the Assessment Act); and

(2)The date of effect of this determination is 22 February 2022, pursuant to section 95N of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

This means the appeal is partly successful.

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 – date of effect provisions – late application for review – whether special circumstances – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines to make a determination under subsection 95N(2) – decision under review set aside and substituted

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. Mrs Hurndall and Mr Hurndall separated on about 1 July 2019 and divorced on 17 April 2020.  They have three children:

   ·      [Child 1] born 14 September 2004;

   ·      [Child 2] born 13 September 2006; and

   ·      [Child 3] born 20 May 2010.

2. On 12 May 2020 Mrs Hurndall made an application for a child support assessment.  Mrs Hurndall said that Mr Hurndall had overnight care of the three children three nights per fortnight, being every second Wednesday one week and every Saturday and Sunday of the next week.  She was advised that this would be assessed as 79% care to her and 21% care to Mr Hurndall.

3. On 19 May 2020 Mr Hurndall disputed this and said he had care five nights per fortnight, being Wednesday and Sunday every week and every second Saturday. 

4. There is no parenting agreement or court orders.

5. On 29 May 2020 the decision under review was made to reflect care as 65% to Mrs Hurndall and 35% to Mr Hurndall from 12 May 2020, which was the start of the assessment.

6. On 1 November 2021 Mrs Hurndall objected to the decision of 29 May 2020.

7. On 7 January 2022 an objections officer allowed Mrs Hurndall’s objection and made a decision to reflect care of the three children as 70% to Mrs Hurndall and 30% to Mr Hurndall from 12 May 2020.

8. The objections officer found that Mrs Hurndall had lodged her objection 475 days outside the required timeframe of 28 days from the decision under review.

9. The objections officer asked Mrs Hurndall whether there were special circumstances which explained the late lodgement of the objection.

10. Mrs Hurndall said she had been very busy as she had the children most of the time, her children had disabilities and she had to take them to appointments, she trusted Mr Hurndall to tell the truth and found he had not, and she did not have an online account and her letters were being sent to Mr Hurndall’s address.

11. The objections officer determined that these did not constitute special circumstances and therefore determined that the objection decision would be reflected in the assessment from 1 November 2021, the date the objection was lodged.

12. On 10 February 2022 Mrs Hurndall made an application to the Tribunal for a review of the objections officer’s decision. 

ISSUES

1. The issues which arise in this case are:

   ·      What was the pattern of care when the application for an assessment was made on
   12 May 2020?

   ·      From what date should the correct care determination apply?

CONSIDERATION

1. The Tribunal asked Mrs Hurndall what she wanted to achieve from her appeal to the Tribunal.  She said she wanted care reflected as 95% to her and 5% to Mr Hurndall from the date of separation, 1 July 2019, not the date the assessment was registered, 12 May 2020.

2. The Tribunal explained that the decision under review was the percentage of care that pertained at the time the assessment was registered.  Child support law provided no capacity to back date a care assessment to a period before an assessment was registered.

3. The Tribunal asked Mr Hurndall what he wanted from the appeal.  He said that while the actual pattern of care had changed since the case was registered it would not be correct to reflect care as 95% to Mrs Hurndall and 5% to him.

4. The Tribunal explained that if the pattern of care changed sometime after the assessment was registered and care percentages determined then the law provided for either parent to notify a change of care from the date on which it occurred.  

5. The Tribunal explained that the issue which it must determine is the correct percentages of care that pertained at the time the case was registered on 12 May 2020, or the percentages that were expected to pertain in the period thereafter.  The Tribunal therefore wanted evidence that goes to the actual care that pertained then and not to the current care percentages if they have changed.

6. Mr Hurndall told the Tribunal that at the time the case was registered he was working
   9 am to 5 pm, 5 days per week.  About 18 months ago his work pattern as [an Occupation] had changed and he was required to work weekends and was therefore unable to have care on most weekends.  He was not able to provide the Tribunal with the date on which his work pattern, and therefore the care pattern, changed.  He also had weekend commitments with the [Organisation].

7. Mrs Hurndall told the Tribunal that Mr Hurndall seldom had care of the children on weekends and she had difficulty providing for the cost of supporting the children since Mr Hurndall’s actual share of care amounted to far less than the 30% reflected in the assessment made by the objections officer.

8. Significantly, Mr Hurndall said he did not dispute what Mrs Hurndall said about the reduction in the amount of care he was providing, but he said it was significantly higher than the 5% of care Mrs Hurndall claimed he was providing.

9. The most comprehensive evidence before the Tribunal of the actual care that was taking place at the time the assessment was registered is a care diary provided by Mrs Hurndall on 24 March 2022 and a care diary provided by Mr Hurndall on 9 July 2021 which commences from August 2020.

10. Mrs Hurndall diary is a calendar which simply notes whether care was provided by her or Mr Hurndall on each date.  It does not make any distinction between the care of each of the children.  Both Mr Hurndall and Mrs Hurndall told the Tribunal that the three children were not always together when in one or the other’s care.  Mr Hurndall’s diary’ distinguishes for each child which parent had care on each day.

11. As Mr Hurndall’s diary does not cover the period up to 31 July 2021 and that is the relevant period for consideration of the pattern of care at the date of the application for assessment, the Tribunal put weight on Mrs Hurndall’s diary as the basis for determining actual care.  In so doing, the Tribunal notes that, during the hearing, Mr Hurndall did not refute any of the dates in that part of Mrs Hurndall’s care diary.

12. Mrs Hurndall’s care diary shows that Mr Hurndall had care for four nights in January 2020, seven nights in February 2020, 5 nights in March 2020, seven nights in April 2020 and no nights in May 2020 before the application for assessment was made on 12 May 2020.  That amounted to actual care of 17.4% in the 2020 calendar year, up to the date of the application for assessment.

13. In the following two months and 20 days up to the end of July 2020, Mrs Hurndall’s diary shows that Mr Hurndall had care of the children for four nights in May 2020, five nights in June 2020, and five nights in July 2020.  That amounted to actual care of 17.2% in the period following the application for assessment.

14. The Tribunal therefore determined that based on actual care immediately before and after the application for assessment on 12 May 2020, care of [Child 1], [Child 2] and [Child 3] should be reflected as 83% to Mrs Hurndall and 17% to Mr Hurndall.

15. The date of effect of the Tribunal’s determination is subject to section 87AA of the Registration and Collection Act because Mrs Hurndall did not lodge her objection to the decision under review, which was made on 29 May 2020, until 1 November 2021, which was 475 days after the end of the statutory allowable period of 28 days for raising an objection.

1. The Tribunal considered Mrs Hurndall’s reasons for not lodging the objection within 28 days.  These are set out in paragraph 10 of this Decision.  The Tribunal found that none of the circumstances raised, either individually or collectively, constitute special circumstances.  Accordingly, the Tribunal finds that special circumstances do not exist, therefore the date of effect of the Tribunal’s determination cannot be before 1 November 2021.

2. However, Mrs Hurndall was also late lodging her application for review with the Tribunal. As a result the date of effect of the Tribunal’s determination is also subject to section 95N of the Registration and Collection Act. Mrs Hurndall did not lodge her application for review by the Tribunal until 10 February 2022, which was 6 days after the end of the statutory allowable period of 28 days for making an application.

3. When asked, Mrs Hurndall did not provide reasons that prevented her from lodging the application for review of the objections officer’s decision within 28 days. The Tribunal finds that special circumstances do not exist. Therefore, pursuant to section 95N of the Registration and Collection Act, the date of effect of the Tribunal’s care determination is
   10 February 2022.

4. The Tribunal sets aside the objections officer’s decision of 7 January 2022 and substitutes it with a decision to allow the objection so as to make a care percentage determination reflecting that care of [Child 1], [Child 2] and [Child 3] is recorded as 83% to Mrs Hurndall and 17% to Mr Hurndall from 12 May 2020, pursuant to section 50 of the Registration and Collection Act. Pursuant to section 95N of the Registration and Collection Act this determination is effective from 10 February 2022.

DECISION

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

(1)The objections officer’s decision of 7 January 2022 is set aside and substituted with a decision to allow the objection so as to make a care percentage determination reflecting that care of [Child 1], [Child 2] and [Child 3] is recorded as 83% to Mrs Hurndall and 17% to Mr Hurndall from 12 May 2020, pursuant to section 50 of the Assessment Act; and

(2)The date of effect of this determination is 22 February 2022, pursuant to section 95N of the Registration and Collection Act.

This means the appeal is partly successful.