Killough and Killough (Child support)

[2020] AATA 4400

Killough and Killough (Child support) [2020] AATA 4400 (5 August 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC019365

APPLICANT:  Mr Killough

OTHER PARTIES:  Child Support Registrar

Ms Killough

TRIBUNAL:Member S Brakespeare

DECISION DATE:  5 August 2020

DECISIONS:

The decision under review is varied so that the existing percentage of care determinations are revoked and replaced by percentage of care determinations which reflect that Mr Killough provides 72% care and Ms Killough provides 28% care of [Child 1]. The date of effect of the decision is 30 June 2020.

The tribunal decided not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 to extend the period for lodging the application for review.

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 varied

CHILD SUPPORT – date of effect of the tribunal’s decision – whether there were special circumstances that prevented the application for review being lodged in time – special circumstances do not exist – tribunal decides not 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 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. Mr Killough is the parent liable to pay child support to Ms Killough in respect of their child [Child 1], who is 17.

2. On 2 February 2020 Mr Killough advised the Child Support Agency that the care of [Child 1] had changed from 2 February 2020 and Mr Killough now had 5 nights care per week. At the change of care date the Child Support Agency records reflected that Ms Killough had 100% care and Mr Killough had 0% care (the existing percentage of care determinations).

3. On 13 February 2020 an officer of the Child Support Agency decided to revoke the existing percentage of care determinations from 2 February 2020 and replace them with percentage of care determinations reflecting that Mr Killough had 72% care of the child and Ms Killough had 28% care of the child (the original decision).

4. Ms Killough lodged an objection to the original decision. An objections officer allowed the decision on 22 May 2020 and in substitution made percentage of care determinations reflecting that Mr Killough has 58% care of the child and Ms Killough has 42% care of the child with effect from 2 February 2020 (the objection decision).

5. Mr Killough lodged an application for review of the objection decision with the tribunal on 30 June 2020. A hearing was held on 5 August 2020. Mr Killough and Ms Killough gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with a bundle of papers relevant to the decision (127 pages). Ms Killough provided extra documents to the tribunal (folios B1 to B28), a copy of which has been provided to Mr Killough and the Child Support Agency.

6. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

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

   ·      whether the existing percentage of care determinations should be revoked and replaced;  

   ·      the date of effect of the tribunal’s decision.

CONSIDERATION

Issue 1 – Should there be new percentage of care determinations?

1. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Child Support Agency is notified, or otherwise 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. Section 54F applies if section 54G of the Act does not apply[1].

   [1] The tribunal is satisfied that section 54G is not applicable in this case

2. Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children. Section 50 of the Act sets out how to make the new percentage of care determinations where each parent has a pattern of care for a child.

3. The fact that the conditions for revoking and replacing the existing percentage of care determinations have been met is not contested. The point in dispute is what the new percentage of care determinations should be (that is, the amount of care that each parent has).

4. In relation to care change matters, the legislative scheme requires any new care percentage determination to be made following notification to the Child Support Agency of a change of care arrangements. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same. 

5. In circumstances where many months have passed before the tribunal conducts the review, further changes to the care arrangements may have occurred. However, the tribunal may review only the primary decision. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Child Support Agency - so that a new primary care percentage decision can be considered and made if appropriate.   

6. The primary decision-maker’s essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Child Support Agency. It is not appropriate, in undertaking that task, to assess care based on what happened from initial notification to the Child Support Agency up to the time of the tribunal’s hearing - and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Child Support Agency.

7. Mr Killough told the tribunal that the reason [Child 1] came into his care from 2 February 2020 was because he had decided to enrol in a program at the local high school which would get him back into study in order to prepare for work. [Child 1] had missed a lot of schooling, having not attended regularly since Year 9. The course he intended to commence was a Year 11 certificate with a focus on work force preparation.

8. Mr Killough said it was his understanding at the time [Child 1] came to live with him that [Child 1] would stay with him Sunday night to Thursday night and would return to Ms Killough on Friday and stay two nights. [Child 1] had access to Mr Killough’s car from Friday afternoon, when Mr Killough finished work, to travel to Ms Killough’s home.

9. Mr Killough said that after [Child 1] commenced school he found out that he only had to attend school Monday through Thursday as Fridays were set down for work experience. He wasn’t expecting to start work experience for another month. [Child 1] asked if he could return to Ms Killough’s on Thursday evenings. Mr Killough said that he did not have an issue with that; however it was dependant on whether Mr Killough could get a lift to work on a Friday; if he was able to, then the car was available for [Child 1] from Thursday evening. Otherwise [Child 1] would have to wait until Mr Killough had finished work on Friday to access the car.

10. Ms Killough said that it became obvious fairly soon after [Child 1] commenced school that he was not required to attend classes on Friday. Therefore it was agreed that for the duration of Term 1 he would return to Ms Killough’s home on Thursday nights. She acknowledged that that arrangement depended on Mr Killough’s car being available on Thursday nights, and on most occasions it was. She also said that on one occasion when the car was not available she paid one of [Child 1]’s friends to collect him on the Thursday night. She advised that for a period when the COVID-19 regional border restrictions were in place [Child 1] was unable to return home for about three weeks; however she got an exemption to see him. Ms Killough said that the calendars she provided supported her claims. She also said that Mr Killough had advised the Child Support Agency that the care arrangement was 4/3 but has subsequently changed his mind.

11. The tribunal  finds that, at the time [Child 1] commenced living with Mr Killough, both parents were of the understanding that he would reside with Mr Killough from Sunday to Thursday and would return to Ms Killough’s home on Friday afternoon and stay over the weekend, returning to Mr Killough’s home on Sunday evening.  The tribunal notes that Ms Killough advised the Child Support Agency on 2 February 2020 that the care would be 5 nights to Mr Killough and 2 nights to her.

12. That arrangement changed almost immediately when it became evident that [Child 1] did not need to attend school on Friday. The parents disagree about whether there was a change to the pattern of care when [Child 1]’s circumstances changed. Ms Killough is of the view that the intention was, at least for the first term, that [Child 1] would return to her on Thursday nights, and that is generally what occurred until the regional border was closed. Mr Killough takes the view that the intention was for [Child 1] to remain with him on Thursday nights, unless his car was available for [Child 1] to return to Ms Killough’s home on Thursday night.  He views any alteration to the Thursday night care as an a hoc occurrence, rather than a change to the pattern of care that was intended.

13. The tribunal finds that on the change of care date the intended pattern of care was for Mr Killough to have 5 nights care and Ms Killough to have 2 nights care. The tribunal therefore varies the decision under review so that the percentage of care determinations are to be revoked and replaced by percentage of care determinations that reflect 72% care to Mr Killough and 28% care to Ms Killough.

Issue 2 – What is the date of effect of the review decision?

1. Subsection 43(6) of the Administrative Appeals Tribunal Act 1975 provides that if the tribunal on review varies or substitutes a decision, the varied or substituted decision has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

2. However, section 95N of the R&C Act applies where the tribunal varies or substitutes a decision on an objection to a care percentage decision. If the application for review was made to the tribunal more than 28 days after notice was given, and the tribunal makes a decision which varies or substitutes a decision on the basis of an objection to a care percentage decision, the decision as substituted by the tribunal is taken to have been made on the day the application for review was made to the tribunal (subsection 95N(1) of the R&C Act).

3. If the tribunal is satisfied that there are special circumstances that prevented the application for review being made within the 28 day period after the notice was given, that period may be extended (subsection 95N(2) of the R&C Act).

4. The tribunal finds that notice of the decision was sent to Mr Killough electronically on 25 May 2020 and therefore he is taken to have received it on that day.[2]  Mr Killough lodged his application for review with the tribunal on 30 June 2020, and therefore the review application was lodged outside the 28 day period.

   [2] Section 14A of the Electronic Transactions Act 1999

5. Mr Killough said that he did not read the fine print in the notice and was therefore unaware of the 28 day period. The tribunal does not find that there were special circumstances which prevented Mr Killough from lodging the application in time and therefore the provision for extending the period for lodging the application is not satisfied.

6. The date of effect of the tribunal’s decision is 30 June 2020. (The decision will have no material effect on the assessment as a subsequent percentage of care determinations took effect from 22 June 2020.)

DECISIONS

The decision under review is varied so that the existing percentage of care determinations are revoked and replaced by percentage of care determinations which reflect that Mr Killough provides 72% care and Ms Killough provides 28% care of [Child 1]. The date of effect of the decision is 30 June 2020.

The tribunal decided not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 to extend the period for lodging the application for review.