Hutton and Pierse (Child support)

Hutton and Pierse (Child support) [2023] AATA 4278 (27 October 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/AC026349
APPLICANT:  Ms Hutton
OTHER PARTIES:  Child Support Registrar
Mr Pierse

TRIBUNAL:Member J Thomson
DECISION DATE: 27 October 2023

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages of 100% to Ms Hutton and 0% to Mr Pierse in relation to [Child 1] should be recorded from 11 June 2022 with effect in the administrative assessment from 5 July 2022.

The Tribunal determines pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 that subsection 87AA(1) of that Act applies as if the reference to 28 days in paragraph 87AA(1)(b) was a reference to a longer period such that Ms Hutton’s objection was lodged within that period.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review set aside and substituted

CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist

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

Ms Hutton and Mr Pierse are the parents of [Child 1], born 2004, [Child 2], born 2008, and [Child 3], born 2010 (the children). This decision relates to [Child 1] only.
Ms Hutton seeks review of an objections decision made by Services Australia (Child Support) on 30 June 2023. This decision disallowed her objection to an earlier Child Support decision dated 18 August 2022 to reflect the care of [Child 1] as 183 nights of care (50%) to Mr Pierse and 182 nights of care (50%) to Ms Hutton from 11 June 2022.
The Tribunal heard the matter on 28 September 2023. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 252), admitted into evidence and marked Exhibit 1. Both parents had copies of these papers with them at the hearing.

ISSUE

The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.
The issue which arises in this case is:

What was the likely pattern of care of [Child 1] from the start of the administrative assessment?

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibit 1 before the Tribunal at the hearing.
Both parents acknowledged and agreed at the hearing that the child support assessment case for [Child 1] ended when she turned 18 on 3 December 2022.
To consider what was the likely pattern of care of [Child 1] from the start of the administrative assessment it is necessary to examine the actual or likely pattern of care being had by the parents by reference to an appropriate care period. Child Support generally considers a care period of 12 months to be appropriate but shorter periods can be considered, depending on the circumstances of individual cases. In this case, the Tribunal will consider the care period 11 June 2022 to 3 December 2022, the date the child support assessment ended for [Child 1] when she turned 18 years of age.
Child Support’s file documents at pages 18 to 21 of Exhibit 1 record Child Support accepting Ms Hutton’s request for Mr Pierse’s child support assessment in place on 5 July 2022 to be collected by Child Support from that date. The care percentages being assessed by Child Support at that time, reflected in the assessment notices for all three children, were 79% to Ms Hutton and 21% to Mr Pierse.
Page 27 of Child Support’s papers, Exhibit 1 records Mr Pierse’s telephone call to Child Support on 29 July 2022 in which he notified the parents’ earlier reconciliation had resulted in a final separation on 2 June 2022. This notification gave rise to an application by Ms Hutton to end the parents’ existing child support assessment (see pages 53 and 54, Exhibit 1) and her application for a new administrative child support assessment, accepted on 9 August 2022 (see pages 55 to 58, Exhibit 1), to be collected by Child Support from 5 July 2022 (see pages 59 and 60, Exhibit 1).
In the course of his telephone conversation with Child Support on 29 July 2022 referred to in the preceding paragraph, Mr Pierse is recorded as notifying Child Support of a unilateral change in care for “the children” from the recorded care percentages of 79% to Ms Hutton and 21% to Mr Pierse to new care percentages of 50% shared care to each parent.
On 9 August 2022, Child Support issued letters to the parents with attendant child support assessment notices (see pages 63 to 87, Exhibit 1) notifying the parents of changes to the Child Support recorded care percentages for the children [Child 2] and [Child 3] to 50% shared care, consequent upon information received on 29 July 2022 (presumably Mr Pierse’s notification of that date referred to above) but recording care percentages for [Child 1] of 97% to Ms Hutton and 12% to Mr Pierse.
Mr Pierse gave evidence that he had contacted Child Support on 5 July 2022 to dispute the care percentages recorded for [Child 1]. He gave evidence that he contacted Child Support again on 10 August 2022 to notify a further change in care for [Child 1] from 11 June 2022, but otherwise confirming the care percentages for [Child 2] and [Child 3] at 50% shared care. Child Support’s record of his call appears at page 89, Exhibit 1. However, there is no record in the papers provided by Child Support to the Tribunal reflecting its having actioned this change in care notification other than its decision to change the care percentages for [Child 1] to 50% shared care reflected in the letters dated 18 August 2022 it sent to the parents with attendant assessment notices (see pages 121 to 132, Exhibit 1).
Although Child Support’s file note of 10 August 2022 at page 89 purports to notify a change in care for [Child 1] to 50% shared equal care between the parents from 11 June 2022, at the hearing, Mr Pierse acknowledged and agreed that although he had offered to have [Child 1] come and stay with him and had made accommodation facilities available for her at his place of residence, she had never availed herself of his offer and he had not had any care of her from 10 June 2022. He acknowledged and agreed [Child 1] had been in Ms Hutton’s 100% care from at least 11 June 2022.
Ms Hutton also gave evidence that she had contacted Child Support officers in this period to have her 100% care of [Child 1] at that time accurately recorded as such. She said she was informed by the Child Support officers with whom she spoke that they would contact Mr Pierse to ascertain his attitude to [Child 1]’s care situation and revert to her but she said she heard nothing further from them.
Both parents expressed their frustration and confusion in their efforts to have their care percentages for [Child 1] accurately recorded by Child Support as 100% to Ms Hutton and 0% to Mr Pierse from 11 June 2022.
Ms Hutton gave evidence that she did not receive Child Support’s letter of 18 August 2022, notifying her of a change in care for [Child 1] from the pre-existing care percentages of 79% to her and 21% to Mr Pierse to the new care percentages of 50% shared care to each parent, effective in the assessment from 10 June 2022 for Mr Pierse and 11 June 2022 for Ms Hutton, until it arrived in the mail in early November 2022.
She gave evidence that she contacted Child Support in November 2022 to discuss the change in care decision reflected in Child Support’s 18 August 2022 letter and informed it that [Child 1] had been in her 100% care since June 2022. She said she was advised by the Child Support officer with whom she spoke of the investigative process which would be initiated to determine if new care percentages should be applied and that she would be notified in due course of Child Support’s decision regarding her change in care notification.
Child Support’s file notes at page 142 of Exhibit 1 record her contacting Chid Support to lodge her objection to the change in care decision notified to her in Child Support’s letter of 18 August 2022, referred to above. This file note also records Ms Hutton being advised of the special circumstances requirement issue relating to her late objection, and her referring the Child Support officer, [Mr A], to her earlier call to Child Support in November 2022 to dispute the decision of 18 August 2022, but in respect of which nothing was done.
A later Child Support file note at page 171 of Exhibit 1 records Ms Hutton contacting a Child Support officer on 16 June 2023 in the course of the objection process. This file note records Ms Hutton informing the Child Support officer, [Ms B], with whom she spoke, that she had tried to address the issue of [Child 1]’s care at 50% shared care reflected in Child Support’s letter of 18 August 2022 when she received that letter in November 2022 and contacted a Child Support officer named [Mr C] in November 2022. The file note records the Child Support officer, [Ms B], acknowledging a receipt history in the Child Support records of her calls with an officer named [Mr C] on 5 July 2022 and 9 August 2022, and a later call in November 2022.
The Tribunal finds the evidence, on balance, given by the parents is that Mr Pierse notified Child Support of a change in care for [Child 1] on 10 August 2022 which he said occurred on 11 June 2022, contending that the parents were having shared equal care from that date, although at that point in time, [Child 1] had chosen to stay with Ms Hutton, and the evidence is that [Child 1] remained in Ms Hutton’s 100% care from at least 11 June 2022.
Both parents acknowledged and agreed at the hearing that from 11 June 2022, [Child 1] was in Ms Hutton’s 100% care. Pursuant to sections 49 and 50 of the Act, the Tribunal finds that the care percentage determinations in relation to [Child 1] were 100% to Ms Hutton and 0% to Mr Pierse effective from the start of the assessment case.
There was no evidence before the Tribunal to support Child Support’s determination of the care percentages of 50% shared care to each parent notified in its decision of 18 August 2022 reflected in the Child Support letters of that date.
The Tribunal is satisfied Ms Hutton did not receive the Child Support letter of 18 August 2022 notifying her of its change in care decision regarding [Child 1] until a date in November 2022 which she could not accurately recall. However, Child Support’s file note at page 142 of Exhibit 1 dated 31 March 2023, recording her later call to lodge her objection, records her reference to her earlier call to Child Support in November 2022 to object to the Child Support decision notified to her in the letter of 18 August 2022.
The Tribunal is satisfied there was a significant level of confusion surrounding the changes in care for the respective children being notified by the parents at different times to the extent that Ms Hutton’s call in November 2022 to object to the decision of 18 August 2022 was not recorded as an objection and acted upon accordingly. The Tribunal therefore finds special circumstances prevented her from lodging her objection within 28 days of her receiving Child Support’s notification letter of 18 August 2022 in November 2022.
The Tribunal determines pursuant to subsection 87AA(2)of the Child Support (Registration and Collection) Act 1988 that subsection 87AA(1) of that Act applies as if the reference to 28 days in paragraph 87AA(1)(b) was a reference to a longer period such that Ms Hutton’s objection was lodged within that period.
The Tribunal therefore sets aside the objection decision under review and, in substitution decides that care percentages of 100% to Ms Hutton and 0% to Mr Pierse should be recorded from 11 June 2022 with effect in the administrative assessment from 5 July 2022.

DECISION

[2023] AATA 4278

27 October 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies