Jordan and Instone (Child support)

[2023] AATA 1797

Jordan and Instone (Child support) [2023] AATA 1797 (15 May 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/SC025220 & 2022/SC025227

APPLICANT:  Mr Jordan

OTHER PARTIES:  Child Support Registrar

Ms Instone

TRIBUNAL:Member M Baulch

DECISION DATE:  15 May 2023

DECISION:

The tribunal set aside the decision that recorded Mr Jordan as having 0% care of [Child 1] and [Child 2], and Ms Instone as having 100% care, from 5 August 2020.  In substitution, the tribunal decided that there was a change in the pattern of care of [Child 1] and [Child 2] from 21 May 2021, such that Mr Jordan’s percentage of care is 0%, and Ms Instone’s percentage of care is 100%.

The decision that the objection decision applies from 30 September 2022 is affirmed.

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 – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – decision under review affirmed

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. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care. 

2. Mr Jordan and Ms Instone are the separated parents of [Child 1] and [Child 2].  Since 28 August 2013, Mr Jordan has been assessed as liable to pay child support to Ms Instone by Services Australia – Child Support (Child Support). 

3. On 20 December 2021, Ms Instone advised Child Support that she had had sole care of [Child 1] and [Child 2] since 5 August 2020.  That information was considered by Child Support and it was decided, on 19 January 2022, that there should be no changes to the percentages of care applying for the parents in the child support assessment.

4. On 30 September 2022, Ms Instone objected to that decision and, on 16 November 2022, that objection was partly allowed.  The objections officer decided that:

   ·      There had been a change in the pattern of care for [Child 1] and [Child 2] from 5 August 2020, such that Mr Jordan’s percentage of care was 0% and Ms Instone’s percentage of care was 100%; and

   ·      There had been no special circumstances preventing Ms Instone objecting to the decision of 19 January 2022 within 28 days, so that the date from which the objection decision applied to the child support assessment was 30 September 2022;

   (the decisions under review).

5. Mr Jordan has now applied to this tribunal seeking an independent review of Child Support’s decisions.

6. A hearing into the application for review was held by the tribunal on 15 May 2023.  Mr Jordan discussed the application for review with the tribunal by telephone and gave evidence under affirmation during the hearing.  A representative of the Child Support Registrar did not participate in the hearing. 

7. Ms Instone did not answer her telephone when contacted by tribunal staff for the purposes of setting up a telephone conference for the hearing. Pursuant to paragraph 40(1)(b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the tribunal proceeded with the hearing in Ms Instone’s absence.

8. The tribunal had before it relevant documents provided to it by Child Support pursuant to section 37 of the AAT Act, copies of which Mr Jordan confirmed he had received prior to the tribunal hearing.

ISSUES

1. The statutory provisions relevant to this application for review are found in the Act.

2. The issues which arise in this application for review are:

   ·      Was there a change in the care arrangements for [Child 1] and [Child 2]; and

   ·      Did special circumstances prevent Ms Instone from objecting to the decision made on 19 January 2022 within 28 days of being notified of that decision?

CONSIDERATION

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their children during a care period.  Since 3 August 2016 the percentages of care that applied to the child support assessment recorded Mr Jordan as having 40% care of [Child 1] and [Child 2] and Ms Instone as having 60% care.

Was there a change in the care arrangements for [Child 1] and [Child 2]?

1. On 20 December 2021, Ms Instone advised Child Support that she had been having sole (100%) care of [Child 1] and [Child 2] since 5 August 2020.

2. Section 54A of the Act provides that the extent of care that a person is to have may be worked out on the number of nights that a child is likely to be in that person’s care in a “care period”.  While section 54A of the Act references nights of care, it does not preclude care being measured by other reckonings of time.  In this case, I considered nights in care to be the most appropriate measure to determine each parent’s percentage of care.

3. Mr Jordan’s initial evidence was that he had always had care of [Child 1] and [Child 2] on weekends.  Further clarification revealed that he considered that he had care of the children when he was paying for their expenses.  When asked how frequently he had care of the children overnight, Mr Jordan’s evidence was that this occurred almost all Friday and Saturday nights, but there may have been occasions when the children were busy or when care did not proceed because he and Ms Instone were arguing.

4. In relation to the file note dated 1 December 2021 contained in the papers which indicated that Mr Jordan had not had care of the children for the “past few weeks”, Mr Jordan acknowledged that there had been a period of time, such as a few months, after he and Ms Instone had separated where he did not have care of the children.  Mr Jordan was unable to explain why that particular file note has recorded Mr Jordan as stating “that the parents did not reconcile during the private collect period”.

5. I asked Mr Jordan about the apprehended domestic violence order dated 21 May 2021, and he noted that the order did not prevent him from spending time with the children, but merely regulated his conduct towards Ms Instone, [Child 1] and [Child 2].  Mr Jordan stated that the order was issued around the time he and Ms Instone “separated”.

6. When I put to Mr Jordan that he did not have care of the children from May 2021 to at least December 2021, he did not dispute that this was correct.  Mr Jordan went on to state that he recommenced having regular care of the children from around Christmas 2021, and he could provide text messages as evidence to support his claim.

7. Having considered Mr Jordan’s evidence, I was satisfied that Mr Jordan had no care of [Child 1] and [Child 2] from at least 21 May 2021, being the date on which the apprehended domestic violence order was issued.

8. I noted Mr Jordan’s evidence that he resumed having overnight care of the children around Christmas 2021.  Mr Jordan should contact Child Support and advise that there was a subsequent change of care around this time and provide any evidence he may have to support his claims.  It will be up to Child Support if there should be a fresh decision about the change in the care arrangements that Mr Jordan says occurred at Christmas 2021.

9. In her advice about the change to the care arrangements made to Child Support by Ms Instone on 20 December 2021, Ms Instone claimed she had 100% care of the children from 5 August 2020.  However, there is no evidence to corroborate that care changed as early as 5 August 2020.  In the absence of such evidence, I was satisfied that the date from which care changed was 21 May 2021.

10. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. 

11. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

I was satisfied that Mr Jordan having 0% care of [Child 1] and [Child 2], and Ms Instone having 100% care, will result in a change to the cost percentages used in the child support assessment.  Therefore, the care percentage determinations of 40% for Mr Jordan and 60% for Ms Instone, that had applied from 3 August 2016, must be revoked.

1. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If Child Support is advised, or otherwise becomes aware, of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care.  However, if notification occurs more than 28 days after the change in care arrangements occur, the revocation of the care determinations takes effect for each parent as follows:

   ·      If the parent’s care of the child has increased – the day before the Registrar is notified, or otherwise becomes aware, of the change in care; or

   ·      If the parent’s care of the child has reduced – the day before the change of care occurred.

2. I have found that the change in care occurred on 21 May 2021 and the evidence is that Ms Instone advised Child Support of that change on 20 December 2021, which is more than 28 days after the change in care occurred.  Therefore:

   ·      Mr Jordan had reduced care, and the existing care percentages are revoked from the day before the change in care occurred; that is 20 May 2021; and

   ·      Ms Instone had increased care, and the existing care percentages are revoked from the date before she advised Child Support about the change in care; that is 19 December 2021.

3. As I have revoked the existing care percentage determinations that apply in respect of [Child 1] and [Child 2], I must make new care percentage determinations that reflect the pattern of care from 21 May 2021.  Accordingly:

   ·       Pursuant to section 49 of the Act, Mr Jordan’s percentage of care for the children is 0%.

   ·       Pursuant to section 50 of the Act, Ms Instone’s percentage of care for the children is 100%.

   According to section 54B of the Act, the new care determinations apply from the day after the previous care determinations were revoked.  This is 21 May 2021 for Mr Jordan and 20 December 2021 for Ms Instone.

4. Therefore, I too would have allowed Ms Instone’s objection and I must consider from which date the objection decision should have effect.

Did special circumstances prevent Ms Instone from objecting to the decision made on 19 January 2022 within 28 days of being notified of that decision?

1. On 19 January 2022, Child Support refused to make a decision that changed the care percentages applying in the child support assessment.  Ms Instone objected to that decision on 30 September 2022.  Like the objections officer, I too would have allowed that objection and thus I need to consider from when the objection decision – to change the care percentages from 21 May 2021 – should take effect.

2. There is no time limit within which a person must lodge an objection against a care percentage decision.  However, if the person makes their objection more than 28 days after the date the notice of the decision is served upon them, and they are successful in their objection, the objection decision has effect from the date they made their objection pursuant to subsection 87AA(1) of the Child Support (Registration & Collection) Act 1988 (the R&C Act). 

3. This is the case unless there are special circumstances that prevented the person from lodging the objection within 28 days, in which case the Registrar (or myself standing in the Registrar’s shoes) may treat the reference to 28 days in subsection 87AA(1) of the R&C Act as a reference to a longer period as determined by the Registrar to be appropriate (subsection 87AA(2) of the R&C Act refers).

4. In this matter, the objections officer declined to make a determination under subsection 87AA(2) of the R&C Act as they were not satisfied that special circumstances prevented Ms Instone from making her objection within the prescribed time.  Therefore, the revised care percentages were applied to the child support assessment from 30 September 2022.

5. The legislation does not define special circumstances.  For assistance, I had regard to the Child Support Guide (the Guide), which describes special circumstances thus:[1]

   [1] Child Support Guide 4.1.8, Guides to Social Policy Law, the Department of Social Services, version 4.71, can be found at

   Special circumstances

   In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:

   ·the parent was seriously ill or had an accident that stopped them from lodging an objection

   ·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

   ·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

   ·the parent reasonably relied upon inaccurate or misleading information.

   If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (section 87AA(2)). The Registrar will consider if:

   ·the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?

   ·the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to Services Australia that the decision was being contested or raised their concerns in other ways - for example, a complaint to Services Australia or the Ombudsman?

   If the Registrar makes a determination under section 87AA(2) to extend the period in which to lodge the objection, then the objection is considered to have been received within the prescribed timeframe. The objection decision will then replace the original care percentage decision from the first day that original decision had effect.

   …

   I noted that I am not bound by policy as set out in the Guide.  However, in Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39, the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, I accepted the policy is unobjectionable and, in the interests of consistency of decision-making under the Act, considered that this policy should be applied.

6. Ms Instone did not avail herself of the opportunity to be heard during the hearing of Mr Jordan’s application for review.  According to Child Support’s records, the reason she gave for not making her objection until 30 September 2022 was “I do not recall receiving any notification”.

7. Having considered the evidence, I was not satisfied that there were special circumstances that prevented Ms Instone from making her objection within 28 days. 

8. This means that the date from which the percentages of care of 0% for Mr Jordan and 100% for Ms Instone affect the child support assessment is prescribed by subsection 87AA(1) of the R&C Act, and is the date Ms Instone made her objection; being 30 September 2022.

DECISION

The tribunal set aside the decision that recorded Mr Jordan as having 0% care of [Child 1] and [Child 2], and Ms Instone as having 100% care, from 5 August 2020.  In substitution, the tribunal decided that there was a change in the pattern of care for [Child 1] and [Child 2] from 21 May 2021, such that Mr Jordan’s percentage of care is 0%, and Ms Instone’s percentage of care is 100%.

The decision that the objection decision applies from 30 September 2022 is affirmed.