Jennings and Bramley (Child support)

[2018] AATA 960

Jennings and Bramley (Child support) [2018] AATA 960 (5 March 2018)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBERS:  2017/SC011554

2017/SC011628

2017/SC012289

2017/SC012329

APPLICANT:  Ms Jennings

OTHER PARTIES:  Child Support Registrar

Mr Bramley

TRIBUNAL:  Member J Cuthbert

DECISION DATE:  5 March 2018

DECISIONS:

The decisions under review concerning the care percentages used in the child support assessments for [Child 1] and [Child 2] are affirmed.

The tribunal also affirms the decisions not to backdate the date of effect of Ms Jennings’s successful objections under section 87AA of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

Child support – Care percentages – Revocation of existing determinations – New determinations of care percentages – Decisions under review affirmed

Child support – Care percentages – Date of effect of objection decisions – Whether special circumstances prevented lodgment of the objections within time – Refusal to make a determination under subsection 87AA(2) – Decisions under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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 Jennings and Mr Bramley are the parents of twins, [Child 1] and [Child 2] (born 2000) as well as [Child 3] (born 2003) and other adult children. These applications for review concern the care percentages used in child support assessments for [Child 1] and [Child 2] made by the Department of Human Services – Child Support (the Department).  Prior to July 2013 the assessment for [Child 2] was based on Ms Jennings having a care percentage of 77% for [Child 2] and Mr Bramley having a care percentage of 23%. The assessment for [Child 1] was based on Ms Jennings having a care percentage of 100% and Mr Bramley having a care percentage of 0%.

2. On 19 July 2013 Mr Bramley advised the Department that [Child 1] and [Child 2] were in his care for three nights a week from 13 July 2013. A decision was made on 1 August 2013 not to change the care percentages used in the child support assessment for [Child 2]. The care percentages for [Child 1] were changed so that from 13 July 2013 Ms Jennings had a care percentage of 77% and Mr Bramley had a care percentage of 23%.

3. On 5 June 2014 Ms Jennings advised the Department that she had 100% care of [Child 1] and [Child 2] from 20 January 2014. On 2 April 2015 Ms Jennings advised the Department that Mr Bramley had not had overnight care of [Child 1] and [Child 2] since 24 December 2013. A decision was made on 17 April 2015 to vary the care percentages used in the assessment so that Ms Jennings has care percentages of 95% for [Child 1] and [Child 2] and Mr Bramley has care percentages of 5% from 2 April 2015.

4. Ms Jennings lodged objections to the decisions of 1 August 2013 and 17 April 2015 on 3 February 2017. Her objections were partly allowed on 5 April 2017. The objections officer decided that care percentages of 86% for Ms Jennings and 14% for Mr Bramley should have been used from 13 July 2013. However as the objections officer decided that there were no special circumstances which prevented Ms Jennings from lodging her objection within 28 days of receiving notice of the decision of 1 August 2013, the decision had effect from 3 February 2017.

5. The objections officer also decided that care percentages of 95% for Ms Jennings and 5% for Mr Bramley should be used from 2 April 2014. However as the objections officer decided that there were no special circumstances which prevented Ms Jennings from lodging her objection within 28 days of receiving notice of the decision of 17 April 2015, the decision had effect from 3 February 2017.

6. In April 2017 Ms Jennings applied to the tribunal for reviews of the objection decisions. She sought reviews of the care percentage decisions and also the decisions concerning the date of effect of the objection officer’s decisions to give effect to both objection decisions from 3 February 2017 and not an earlier date.

7. On 19 October 2017 the Department made a decision to vary the care percentages used in the assessments for [Child 1] and [Child 2] from 22 December 2016 so that Ms Jennings has care percentages of 100% and Mr Bramley has care percentages of 0%. That decision is not the subject of this review.

8. Ms Jennings’s application was heard on 7 February 2018. Ms Jennings and Mr Bramley both attended the hearing by telephone. In addition to oral evidence from Ms Jennings and Mr Bramley, the tribunal had regard to documents provided by the Department.

9. Following the hearing a decision in the matter was deferred in order to obtain information from the Department. On 15 February 2018 copies of documents received (folios C1 to C38) were sent to Ms Jennings and Mr Bramley with an opportunity to provide comments by 1 March 2018. Comments received from Mr Bramley on 28 February 2018 were taken into account in the decision.

ISSUES

1. The issues the tribunal must decide are:

   ·      whether there were changes to the care patterns for [Child 1] and [Child 2] in July 2013 and December 2013 such that the care percentages used in the child support assessment should be revoked; and if so

   ·      the new care percentages which apply and the date from which they take effect.

2. If Ms Jennings’s objections should have been successful the date of effect of any change to the care percentages depends on:

   ·     whether she lodged her objections more than 28 days after being served with notice of the decisions of 1 August 2014 and 17 April 2015; and if so

   ·     whether there were special circumstances which prevented her from lodging the applications for review within 28 days.

CONSIDERATION

1. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). After accepting an application for a child support assessment, the Department (acting for the Child Support Registrar) makes a child support assessment using a statutory formula in Part 5 of the Assessment Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” and a “cost percentage” for each parent in relation to each child.

2. The Department makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment or if there is a change to the care pattern which means that an earlier determination should be revoked.

3. Sections 49 and 50 require the Registrar, or this tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period).

4. If a person has a care percentage of at least 14% but less than 35% they have “regular care” and a cost percentage of 24% applies. If a person has a care percentage of less than 14% a cost percentage of 0% does not reduce the amount of child support payable under the assessment.

5. Care percentages must be revoked and new care percentages determined if:

   · a person no longer has a care percentage of at least 14% and the Department is notified within a reasonable period (section 54G of the Assessment Act); or

   · the care of a child that is actually taking place does not correspond with a person's existing percentage of care for the child such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply (section 54F of the Assessment Act).

6. The date of effect of any revocation of care percentages under section 54F of the Assessment Act and the date of changes to the percentages used depend on when the Department was notified or became aware of the change. If the Department is notified of the change more than 28 days after it occurred, the date of revocation is the day before the Department was notified. Any new care percentages generally take effect from the following day.

7. Care percentages may also be revoked under section 54H of the Assessment Act if sections 54G and 54F of the Assessment Act do not apply but a person’s percentage of care for a child has changed.

8. The Registration and Collection Act provides a mechanism for parents who are dissatisfied with a care percentage decision to seek a review of the decision by lodging an objection. However, if an objection concerning care percentages is lodged more than 28 days after notice of the care percentage decision is given, section 87AA of the Registration and Collection Act provides that the date of effect in relation to any successful objection is the date of the objection. The effect of an objection decision can only be backdated if there are special circumstances which prevented the person from lodging their objection within 28 days.

Were there changes to the care patterns for [Child 1] and [Child 2] in July 2013?

1. Mr Bramley contends that [Child 1] and [Child 2] were staying with him overnight an average of one or two nights a week from July 2013. He said that they stayed on weeknights, but also sometimes on weekends or in school holidays. He told the tribunal that he contacted the Department on 19 July 2013 as he and Ms Jennings had agreed that he would have more contact with the children. However, he acknowledged that the change to the care pattern for each of the children that he had anticipated never occurred.

2. Ms Jennings states that [Child 1] and [Child 2] were spending an average of one night a week with Mr Bramley. She said that it was usually a Tuesday night and that he only cared for them from six or seven o’clock until before school the next day. She said that some weeks Mr Bramley cancelled or the children did not want to go. Ms Jennings said that Mr Bramley did not have care of the children in school holidays but agreed that he may have had care of the children for three nights on a one-off basis when [Child 3] was in hospital. There is no dispute that when Ms Jennings was absent from home as [Child 3] was in hospital [Child 1] and [Child 2] would usually remain at Ms Jennings’s home with the older siblings. Neither Mr Bramley nor Ms Jennings kept records of the nights that the children were in their care or the care of the other person.

3. The tribunal finds that in July 2013 there was a pattern of care for both children such that it could be expected that Mr Bramley would continue to have care of [Child 1] and [Child 2] for at least 52 nights in the following year. The tribunal finds that the care percentages used in the child support assessment for [Child 1] should be revoked under section 54F of the Assessment Act and new care percentages applied. The tribunal finds that a care percentage of 14% for Mr Bramley, or regular care, should apply.

4. The tribunal finds that there is no basis to revoke the earlier care percentages for [Child 2] under sections 54F or 54G of the Assessment Act as there was no change to the care pattern that would affect the cost percentages in the assessment because Mr Bramley maintained a care percentage of at least 14%. However, in light of the change made to the care percentages for [Child 1], the tribunal finds that the care percentages for [Child 2] should also be varied under section 54G of the Assessment Act to reflect that Mr Bramley had a care percentage of 14% and Ms Jennings had a care percentage of 86%.

5. The tribunal finds that the change to the care patterns occurred from 13 July 2013, less than 28 days before Mr Bramley contacted the Department. For that reason the date of effect of the change would generally be 13 July 2013, the date he notified the Department.

Were there changes to the care patterns for [Child 1] and [Child 2] in December 2013?

1. There is no dispute that on 20 January 2014 Ms Jennings and the children moved to live some distance from Mr Bramley’s home. Mr Bramley does not dispute that he ceased having overnight care of [Child 1] and [Child 2] on a weekly basis on 24 December 2013. He told the tribunal that he had overnight care of the children on perhaps three occasions during school holidays in 2014. He said that he did not keep records, but the last time was possibly in 2015. He stated that since then he has sometimes travelled to stay near the children’s home and has had contact with them during the day.

2. Ms Jennings told the tribunal that Mr Bramley had not had overnight care of the children at any time since she moved house again in early 2015. She disputed the extent to which he had overnight care of the children in 2014 stating that they only visited Mr Bramley on one occasion for a few days when they were in the care of their older sister. She said that Mr Bramley had sent [Child 1] and [Child 2] home on a train unaccompanied and that she would no longer allow them to go to [a particular city] for that reason. In March 2017 Ms Jennings provided the Department with a letter from her daughter, [Child 4], who stated that [Child 1] and [Child 2] were only in Mr Bramley’s care on one occasion since early January 2014. She said that this was for less than a week during a school holiday period in early 2014. [Child 4] stated that Mr Bramley has had no contact with [Child 1] and [Child 2] since October 2015.

3. The tribunal finds that the pattern of care for [Child 1] and [Child 2] changed from 25 December 2013, such that it was no longer expected that they would be in Mr Bramley’s care for at least 52 nights a year. For that reason the tribunal finds that the previous care percentages used in the assessment for [Child 1] and [Child 2] should be revoked and new care percentages applied.

4. The tribunal finds that in December 2013 it could have been anticipated that Mr Bramley would continue to have overnight care of the children on some occasions. He continued to have some overnight care of [Child 1] and [Child 2] in 2014. The tribunal finds that care percentages of 5% for Mr Bramley and 95% for Ms Jennings reflect that it was anticipated that he would have care of the children on occasion, but would not have regular care.

5. Ms Jennings first notified the Department of the change on 5 June 2014, at least five months after the change occurred. The tribunal finds that she did not notify the Department within a reasonable time and therefore section 54G of the Assessment Act does not apply. However, the earlier care percentages should be revoked under section 54F of the Assessment Act. As Ms Jennings notified the Department of the change more than 28 days later, the date of effect of the change would generally be 5 June 2014, the date of notification.

6. The tribunal notes that there has been a later change to the pattern of care for the children as Mr Bramley had not had overnight care of [Child 1] and [Child 2] since perhaps late 2014. However, as any change to the care percentages from 5% to 0% would not affect the child support assessment there is no basis to revoke the care percentages under section 54F of the Assessment Act. Ms Jennings contends that that care percentages should be changed as Mr Bramley has used the assessments in court proceedings between the parties. However, the tribunal is satisfied that it should not use the discretion to revoke the care percentages under section 54H of the Assessment Act as there is no utility in doing so.

7. Ms Jennings’s objection in relation to the decision concerning the care percentages used in the assessment for [Child 1] and [Child 2] from July 2013 was therefore successful as was her objection to the decision made on 17 April 2015 concerning the care percentages used in the assessments for [Child 1] and [Child 2]. The tribunal must therefore consider the date of effect of the change to the assessment to give effect to those decisions having regard to section 87AA of the Registration and Collection Act.

The dates of effect of the objection decisions

1. Ms Jennings contends that she did not receive the letters sent to her on 1 August 2013 and 17 April 2015 advising her of the changes to the care percentages used in the assessments for [Child 1] and [Child 2]. She told the tribunal that when she applied for a child support assessment in June 2013 she had specifically asked to be sent letters by post rather than receiving access online. Although she acknowledged that she had provided her email address to the Department she said that she made it clear that she wanted to receive letters in the mail. She said that she did this as she spends a lot of time at hospital with [Child 3] and until quite recently internet access in hospitals was difficult.

2. Ms Jennings said that she did not receive letters from the Department for many years. She said that she received some letters but could not recall when. She said that she contacted the Department and that this lead to her lodging her objections on 3 February 2017. She stated that Centrelink have always sent her letters by post and that when she contacted the Department she received an apology. She said that the person she spoke to said that they could see that she had not accessed any letters online.

3. Ms Jennings said that the letters sent on 27 January 2017 were the first she had received in a long time. She said that she could not recall receiving letters and that she had not received the letters dated 1 August 2013 and 17 April 2015.

4. The tribunal notes that in her application for a child support assessment which Ms Jennings completed online on 25 June 2013 she responded “yes” to the question “Would the customer like to register for CSAonline?”. The tribunal finds that Ms Jennings agreed to receive notices from the Department using the CSAonline system. The tribunal asked the Department to provide details of all file notes of discussions with Ms Jennings or other instructions for her about the service of notices. Apart from some updates of residential and postal addresses, there is no indication to support Ms Jennings’s claim that she told the Department not to send her documents via MyGov using CSAonline.

5. The tribunal finds that Ms Jennings was served with the notice of 1 August 2013 electronically. The Department omitted to provide evidence concerning the mode of service of documents between 30 January 2015 and 18 May 2015. However, the tribunal is satisfied that the letter of 17 April 2015 was served electronically or to Ms Jennings’s postal address at that [time].  

6. The tribunal notes that Ms Jennings made an application for a departure from the child support assessment on 5 March 2015 seeking an increase in the assessment. A decision that was favourable to her was made on 15 May 2015. Letters were sent to Ms Jennings by post on 18 May 2015, 21 October 2015, 28 July 2016 and 27 January 2017.

7. The tribunal finds that as Ms Jennings lodged her objections more than the 28 days after the decisions were made her successful objections should have effect from 3 February 2017 unless there were special circumstances which prevented her from lodging her objections.

8. The tribunal accepts Ms Jennings’s evidence that she spent a lot of time at hospital with [Child 3], who suffers from a chronic condition. There is evidence that she did not read any of the documents that the Department sent to her online. However, the tribunal notes that a person using the MyGov system receives an SMS message advising that a document has been loaded and is available to be viewed online. In the period 1 August 2013 to the end of 2014 only one letter was sent to Ms Jennings by post and five letters were posted online. She would have received five SMS messages. In those circumstances, the tribunal finds that Ms Jennings’s failure to read online documents does not amount to special circumstances which prevented her from lodging objections.

DECISIONS

The decisions under review concerning the care percentages used in the child support assessments for [Child 1] and [Child 2] are affirmed.

The tribunal also affirms the decisions not to backdate the date of effect of Ms Jennings’s successful objections under section 87AA of the Child Support (Registration and Collection) Act 1988.