Karlin and Thrasher (Child support)

[2022] AATA 5016

Karlin and Thrasher (Child support) [2022] AATA 5016 (1 December 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024704

APPLICANT:  Mr Karlin

OTHER PARTIES:  Child Support Registrar

Ms Thrasher

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  01 December 2022

DECISION:

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Karlin provides 42 per cent care and Ms Thrasher provides 58 per cent care of [Child 1] and [Child 2] from 20 July 2020.

(b) The Tribunal declines to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 20 September 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. This review is about the percentage of care determinations for Mr Karlin and Ms Thrasher in respect of their children [Child 1] (born October 2011) and [Child 2] (born September 2013).  There has been a child support assessment in place since 8 March 2017.

2. From 8 March 2017 the child support assessment reflected Mr Karlin as having 24 per cent care and Ms Thrasher as having 76 per cent care of [Child 1] and [Child 2].

3. On 21 July 2020 Mr Karlin notified the Child Support Agency of a change to the care arrangements stating that he provides 41 per cent care and Ms Thrasher provides 59 per cent care of the children from 20 July 2020.

4. On 24 July 2020 the Child Support Agency made the decision to reflect that Mr Karlin provides 41 per cent care and Ms Thrasher provides 59 per cent care of [Child 1] and [Child 2] from 20 July 2020.

5. On 16 June 2022 Mr Karlin objected to this decision and on 11 August 2022 the Child Support Agency disallowed the objection (the objection decision).

6. On 20 September 2022 Mr Karlin applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 1 December 2022.  Mr Karlin and Ms Thrasher gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (244 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] and [Child 2] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Karlin told the Tribunal that care of [Child 1] and [Child 2] was the subject of court orders which initially allowed him care of two nights a week plus additional nights as agreed.  Mr Karlin said the parents had later decided he would have care of three nights a week with this change taking place for both [Child 1] and [Child 2] from 20 July 2020.

2. Mr Karlin explained that when he notified the Child Support Agency of the change to the pattern of care for the children he had miscalculated the percentage.  Mr Karlin said based on his care of three nights a week the care percentage should be 42 per cent care and not 41 per cent care.  He said this was simply an inadvertent error on his part.

3. The Tribunal notes in evidence that when Mr Karlin submitted the change of care to the Child Support Agency online on 21 July 2020 he advised his care would be three nights a week or 150 nights per annum.  Ms Thrasher subsequently agreed to Mr Karlin having 41 per cent care of the children from 20 July 2020.

4. Mr Karlin told the Tribunal that he had raised this matter with the Child Support Agency on numerous occasions and thought it could be corrected as an error but the Child Support Agency had refused.  Mr Karlin added he thought the Child Support Agency should adopt a more practical approach to the correction of such errors.

5. Ms Thrasher told the Tribunal she agreed the pattern of care for [Child 1] and [Child 2] changed with Mr Karlin having care of three nights a week from 20 July 2020.

6. Ms Thrasher explained that when she had first been contacted by the Child Support Agency about the change to the care arrangements she had assumed the care percentage calculations were correct.  Ms Thrasher said if it was a mistake, then it should be rectified.

7. It is not in dispute and the Tribunal finds that care of [Child 1] and [Child 2] changed from 20 July 2020 with Mr Karlin providing care of three nights a week or 156 nights per annum.

8. The existing percentages of care reflected in the assessment for [Child 1] and [Child 2] were 24 per cent care to Mr Karlin and 76 per cent care to Ms Thrasher. The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

9. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

10. The Tribunal finds that Mr Karlin notified the Child Support Agency of the change in care on 21 July 2020, which is less than 28 days after the change occurred on 20 July 2020. According to paragraph 54F(3)(a) of the Act, the existing care determinations are therefore revoked on the day before the change of care day.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Karlin and Ms Thrasher under section 50 of the Act.

2. The Tribunal finds that Mr Karlin provides 42 per cent care and Ms Thrasher provides 58 per cent care from 20 July 2020.

Date of effect of new care percentage determinations

1. Section 95N of the R&C Act determines the date of effect of a Tribunal decision to set aside a care percentage decision.

2. Mr Karlin applied to the Tribunal on 20 September 2022 for a review of the objection decision made by the Child Support Agency on 11 August 2022.  The Tribunal is satisfied Mr Karlin was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 11 August 2022.  Given his application to the Tribunal was not within 28 days of receiving notice of this objection decision, the date of effect of any new decision by the Tribunal is the date he applied for review.

3. The Tribunal may extend the 28 days if there are special circumstances that prevented Mr Karlin from applying for review within this period.

4. While the R&C Act does not define special circumstances, the Child Support Guide, at 4.1.8, provides some clarification. It states the circumstances must be “sufficiently special for the applicant to receive the benefit of an extension”. Examples include the parent being seriously ill, suffering a personal trauma, a natural disaster causing damage to the parent’s property, communication difficulties or the parent reasonably relied upon inaccurate or misleading information.

5. Although not bound by policy as set out in the Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

6. Mr Karlin told the Tribunal he had objected on 16 June 2022 to the original decision made by the Child Support Agency and raised the matter of his care in a separate objection lodged on 21 April 2022.  He said both objections were disallowed.  Mr Karlin said he then needed to get his head around the process before deciding if he wanted to submit an appeal.  Mr Karlin said he received advice from the Child Support Agency that his only option was to seek a review by the Tribunal and so he decided to pursue this course of action.

7. Ms Thrasher told the Tribunal that if an error had been made by the Child Support Agency in calculating the percentage of care then she was not opposed to backdating any decision in order to correct the error.

8. The notification of the objection decision provided by the Child Support Agency dated 11 August 2022 outlines what to do if Mr Karlin disagreed with the decision.  This includes asking the Tribunal to undertake a review “within 28 days from the date you receive this letter”.  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.  The Tribunal also notes in evidence that during a discussion with a child support officer on 15 August 2022 in relation to the objection decision Mr Karlin was informed his next step was to submit an appeal to the Tribunal.  Mr Karlin did not submit such an appeal until 20 September 2022.

9. The Tribunal is not satisfied the circumstances as described by Mr Karlin were sufficiently special such that they prevented him from applying for a review withing the timeframe prescribed.  Accordingly, the Tribunal will not extend the 28-day period and its decision is effective from the date of his application, being 20 September 2022.

10. Mr Karlin objected on 16 June 2022 to the original decision made by the Child Support Agency on 24 July 2020.  According to the evidence provided it appears Mr Karlin also submitted his objection to the Child Support Agency outside the required timeframe.  Even if the Tribunal had found there were special circumstances preventing Mr Karlin from applying for a review to the Tribunal, it would not automatically mean the decision would be backdated and have effect from the date the previous care determinations were revoked.

DECISION

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Karlin provides 42 per cent care and Ms Thrasher provides 58 per cent care of [Child 1] and [Child 2] from 20 July 2020.

(b) The Tribunal declines to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 20 September 2022.