Lamberth and Lamberth (Child support)

[2021] AATA 995

Lamberth and Lamberth (Child support) [2021] AATA 995 (16 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019834

APPLICANT:  Ms Lamberth

OTHER PARTIES:  Child Support Registrar

Mr Lamberth

TRIBUNAL:Member F Hewson

DECISION DATE:  16 February 2021

DECISION:

The tribunal decided to set aside the decision under review and substitutes the decision to:

• revoke the existing percentage of care determinations from 20 May 2018;

• make new percentage of care determinations to reflect that from 21 May 2018 Ms Lamberth had a percentage of care of the children of 73% and Mr Lamberth had a percentage of care of 27%; and

• the date of effect of the tribunal’s decision is 10 September 2020.

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 - date of effect - whether there were special circumstances that prevented the application for review being lodged in time - special circumstances do not 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

1. Mr Lamberth and Ms Lamberth are the parents of three children, aged 12, 12 and 10, in respect of whom there is a child support assessment. This review is about the percentages of care for the children used in the child support assessment.

2. Services Australia – Child Support (the Department) recorded that from 22 January 2016 Ms Lamberth had a percentage of care of the children of 86% and Mr Lamberth had a percentage of care of 14% (the existing care).

3. On 12 April 2018 Mr Lamberth notified the Department of a change in the care. Subsequently the Department made a decision, on 27 July 2018, to make new percentage of care determinations to reflect that from 11 April 2018 Ms Lamberth had a percentage of care of the children of 62% and Mr Lamberth had a percentage of care of 38%.

4. On 22 August 2018 Ms Lamberth lodged an objection to the care decision and on 19 October 2018 an objections officer disallowed the objection.

5. On 10 September 2020 Ms Lamberth lodged an application for review by this tribunal. The application was heard on 1 December 2020. Ms Lamberth spoke to the tribunal by conference telephone and gave affirmed evidence. Mr Lamberth also spoke to the tribunal by conference telephone and gave affirmed evidence. The Child Support Registrar did not attend the hearing. As well as the evidence of Ms Lamberth and Mr Lamberth at the hearing, the tribunal also had regard to the documents provided by the Department, a copy of which was sent to the parties.

ISSUES

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

2. A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for the child.

3. The Act contains provisions which apply when the extent of a responsible person’s care is determined in accordance with a ‘care arrangement’ (e.g. court orders or a parenting plan), but the care arrangement is not being complied with. An interim period may apply if the person with reduced care is taking reasonable action to ensure the care arrangement is complied with, unless there are special circumstances that mean an interim period should not apply (section 51). During the interim period the care used in the child support assessment continues to be in accordance with the extent of care in the care arrangement. The length of the interim period is determined taking into account the length of time elapsed between the date of the court order and the change of care day (up to 26 weeks, more than 26 weeks but less than 38 weeks, and more than 38 weeks), and whether the person with increased care is taking reasonable action to participate in family dispute resolution (section 53A).

4. Ms Lamberth’s and Mr Lamberth’s care of the children is subject to court orders dated 8 December 2017. The issues in this case are:

   ·     Whether the care has been in accordance with the court orders; and

   ·     If not, whether Mr Lamberth and/or Ms Lamberth were taking reasonable action in relation to the care arrangements;

   ·     Whether there were special circumstances such that an interim period should not apply;

   ·     Whether two percentages of care are to be determined for each responsible person, and what those percentages of care are;

   ·     If an interim period applies, to what period does it apply?

   ·     The date of effect of the percentage of care determinations.

5. The tribunal must also consider the date of effect of its decision, in accordance with the provisions in the R&C Act.

CONSIDERATION

1. The provisions in relation to the revocation of a determination of a percentage of care are in Subdivision C of Division 4 – Percentage of Care of Part 5 of the Act.

2. In this case, the tribunal found there were existing percentage of care determinations made under section 50 in relation to the child, and that the Registrar was notified that the actual care of the child did not correspond with the percentage of care in the existing care determinations.

3. As set out above, the existing determinations of the percentages of care in this case reflected that from 22 January 2016 Ms Lamberth had a percentage of care of the children of 86% and Mr Lamberth had a percentage of care of 14%.

4. Ms Lamberth and Mr Lamberth both agreed that the care was subject to court orders, dated 8 December 2017.

5. The court orders provide that the children live with Ms Lamberth, and, in accordance with clauses 6(a) and (b), spend time with Mr Lamberth as follows:

• During school term time, each alternate weekend from 4:00 pm Friday to 5:00 pm Sunday;

• During school term time, each Wednesday from after school until 7:00 pm;

1. Clause 6(c) provides that, subject to completing the requirements of Order 16 (in relation to attendance at therapeutic counselling) and commencing from a time when he is able to accommodate the children in a place which takes about 45 minutes (give or take 10 minutes) or less to deliver the children to school on Monday morning, Mr Lamberth is to spend time with the children as follows:

• From after school on Friday until school time on Monday each alternate weekend; and

• Each Wednesday evening from after school until school time the following Thursday.

1. Mr Lamberth advised the Department on 12 April 2018 that from 11 April 2018 the children were in his care five nights a fortnight, and half of all school holidays.

2. Ms Lamberth said she disputes the assessment that Mr Lamberth has care of the children on a Wednesday. She said the requirements for Mr Lamberth to have the Wednesday night care have not been met, because he does not live within 45 minutes of the children’s school, give or take 10 minutes. Ms Lamberth said the evidence Mr Lamberth gave to the contrary, including Google Maps estimates of the journey time, were produced at times of the day which did not reflect the length of the journey at the time they would be travelling to school. Mr Lamberth said the journey never takes more than 55 minutes. He noted that Ms Lamberth does not dispute his Sunday night care, which is also subject to the requirements in the court orders.  Ms Lamberth said although there are other aspects of the care that are not always strictly in accordance with the Court Orders, she is only disputing the Wednesday night care because she has learned to “pick [her] battles”. Ms Lamberth said the requirement about the travel times was included in the court orders as the long journey every week after school and again the following morning is disruptive and affects the children in school. Ms Lamberth indicated that she is less concerned about the children having a fortnightly journey to school after having spent the weekend with Mr Lamberth. Ms Lamberth said Mr Lamberth has moved further from the children’s school; from [Suburb 1] to [Suburb 2]. Mr Lamberth said he was living in [Suburb 1] when the court orders were made, but it was anticipated at that time that he would be moving to [Suburb 2].

3. In relation to the Wednesday night care, Ms Lamberth said Mr Lamberth did not return the children to her on 11 April 2018, which was distressing to the children, particularly as they were not expecting to stay overnight with their father. Mr Lamberth said he had care of the children on Wednesday night on “two to three” occasions, but it became too difficult.

4. Mr Lamberth said he initiated mediation in relation to the care of the children, and then went back to court on the basis that the court orders were being contravened. He said it took 18 months for the application to be dealt with. The application was dismissed by a court Registrar on the basis there was no reasonable prospect of success. Mr Lamberth said this was due to insufficient evidence. He said he sees the children as Ms Lamberth allows.

5. The tribunal considered the available evidence relevant to the notification on 12 April 2018 that the care of the children changed on 11 April 2018, and the evidence available at the date of the original decision on 27 July 2018.

6. Both Ms Lamberth and Mr Lamberth submitted evidence which they said supported their case in relation to whether the requirements for Mr Lamberth to have the Wednesday and Sunday night care had been met. Mr Lamberth submitted Google Maps evidence which indicated that the length of the journey from [Address, Suburb 1] to [Suburb 3] Public School was 42 minutes. The time this document was produced is unclear, but it was in the afternoon. Ms Lamberth also submitted Google Maps evidence which indicated that the length of the journey from [Address, Suburb 1] to [Suburb 3] Public School was 59 minutes and 107 minutes, using toll roads. The documents were produced at 6:46 am and 8:00 am.

7. It is clear from the court orders, in relation to proceedings which went to trial, that the length of the children’s journey to spend time with Mr Lamberth was an important issue to be addressed. It is also clear that it was intended that there should be some flexibility. As a consequence, however, there is some ambiguity about whether the requirements have been met. Order 4 of the court order provides that: “Should there be no agreement reached between the parties in a timely manner about any of the requirements of the parenting orders made herein then the parties are to seek mediation from an agreed mediator (including from a Family Relationships Centre) and following that they may seek an order from the court at their own risk as to costs. …”. Mr Lamberth took the matter to court, and, as set out above, the matter was dismissed. Mr Lamberth said this was because there was insufficient evidence. It seems that, like the evidence presented to the Department, it was ambiguous. Ultimately, the tribunal preferred the evidence of Ms Lamberth about the length of the journey from the children’s school to Mr Lamberth’s home, because it was produced at around the time the children would be making the journey; when there is inevitably a higher volume of traffic. In circumstances where the parties disagree about this however, their best course may be to have the matter determined by the court, particularly as the children are now older.

8. In relation to the actual care of the children, in a letter dated 17 May 2018, Mr Lamberth confirmed that the children stayed overnight with him on two Wednesdays; 11 April 2018 and 2 May 2018, but did not stay on 9 or 16 May 2018. This is consistent with the evidence provided by Ms Lamberth. On 22 May 2018 Mr Lamberth notified the Department that he had care of the children on the previous night, Sunday 21 May 2018. His care on alternate Friday, Saturday and Sunday nights, and half of the school holidays was not disputed, although Ms Lamberth indicated it was not always strictly in accordance with the court orders.

9. For the reasons discussed above the tribunal was not persuaded that the court ordered requirements for Mr Lamberth to have care of the children on the Wednesday or Sunday nights were met at the date of notification of a change in the care, and, furthermore, it is clear that at the date of the original decision, on 27 July 2018, Mr Lamberth was not having overnight care on the Wednesday night, having done so on only “two to three” occasions since 11 April 2018.

10. The existing care in this case reflects that from 22 January 2016 Ms Lamberth had a percentage of care of the children of 86% and Mr Lamberth had a percentage of care of 14%.

11. The tribunal was not persuaded that that Mr Lamberth had met the requirements in the court orders to have the overnight care on a Wednesday or Sunday at the date of notification on 12 April 2018, and did not establish a pattern of care in relation to the Wednesday at any time before the original decision was made on 27 July 2018. The tribunal was satisfied, however, that the care of the children changed from 21 May 2018, being the date from which Mr Lamberth apparently commenced having overnight care on a Sunday night, which Ms Lamberth, according to her evidence, did not object to. Having regard to the evidence of the parties, it was satisfied that a pattern of care was established in relation to the Sunday night care from 21 May 2018. While Ms Lamberth did not agree that Mr Lamberth was entitled under the court orders to have care of the children on Sunday nights, she agreed that she had not resisted this as she has learned to “pick [her] battles”. She did not take any specific action in relation to this aspect of the care. In the circumstances, the tribunal was satisfied that from 21 May 2018 Ms Lamberth’s percentage of care of the children was 73% and Mr Lamberth’s percentage of care was based on a pattern of care of 3 nights a fortnight and half of the school holidays; resulting in a percentage of care of 27%.

12. The tribunal concluded that in the unusual circumstances of this case, an interim period under section 51 does not apply, because although Mr Lamberth has taken court action, there has been no clear contravention of the court orders by Ms Lamberth, and if there has been by Mr Lamberth, Ms Lamberth has not taken action in relation to the contravention.

13. In the circumstances, the tribunal was satisfied that in the care period from 21 May 2018 to 20 May 2019, Mr Lamberth’s pattern of care was such that he was likely to have a percentage of care of 27% and Ms Lamberth was likely to have a percentage of care of 73%.

1. The tribunal concluded that section 54F applies in this case. 

2. Section 54F, as it was prior to 23 May 2018, set out the general rules for mandatory revocation of a determination. In accordance with subsection 54F(1) the Registrar must revoke the determination if the following conditions are met:

   · the existing percentage of care has been determined under either section 49 or 50;

   · if an exception to the use of actual care in section 51 or 52 applied, the interim period has ended;

   ·     the Registrar or the Secretary is notified or becomes aware that the actual care does not correspond with the person's percentage of care for the child under the determination;

   · if a new percentage were to be determined under either section 49 or 50, it would change the person's cost percentage; and

   ·     section 54G does not apply. 

3. If all of the conditions for revocation under subsection 54F(1) are met, the tribunal must revoke the existing determination. The date from which the revocation takes effect is determined in accordance with subsection 54F(3).

4. The existing percentage of care determinations, of 14% to Mr Lamberth and 86% to Ms Lamberth, were made under section 50 of the Act and, therefore, the first criterion is satisfied.

5. The existing determinations are not subject to sections 51 or 52 of the Act, for the reasons discussed above. As such, there was no interim period in place and the criterion under paragraph 54F(1)(b) is therefore satisfied.

6. The tribunal is satisfied that the care as notified by Mr Lamberth to the Department in his correspondence dated 22 May 2018 did not correspond to the care in the existing percentage of care determinations and, therefore paragraph 54F(1)(c) is satisfied.

7. The tribunal was satisfied that each person’s cost percentage would change if a new percentage of care determination were made under section 49 or 50 of the Act, and therefore, paragraph 54F(1)(d) is satisfied.

8. As set out above, section 54G is not applicable in this case, and the final criterion in paragraph 54F(1)(e) of the Act is satisfied.

9. As all of the criteria in subsection 54F(1) of the Act are met, the tribunal must revoke the existing determinations of percentage of care in respect of the child.

10. Subsection 54F(3) of the Act sets out when the revocation of the determination takes effect. This depends on whether the Department was notified of the care change within 28 days after it occurred. As discussed above, the tribunal found that Mr Lamberth notified the Department on 22 May 2018 of a change of care that occurred on 21 May 2018. As the notification was made within 28 days after the change in care occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(a) of the Act, on 20 May 2018, being the day before Mr Lamberth notified the Department of the change in care.

Should new percentage of care determinations be made in respect of the child?

1. Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked. To make new determinations, the actual care of the child that was likely to occur during the care period (in this case from 21 May 2018 to 20 May 2019) must be considered. In the circumstances, the tribunal was satisfied that in the care period from 21 May 2018 to 20 May 2019, Mr Lamberth’s pattern of care was such that he was likely to have a percentage of care of 27% and Ms Lamberth was likely to have a percentage of care of 73%. It decided to make new percentage of care determinations on that basis.

2. The tribunal decided to make new percentage of care determinations to reflect that in the care period 21 May 2018 to 20 May 2019 Mr Lamberth was likely to have a percentage of care of the child of 27% and Ms Lamberth was likely to have a percentage of care of 73%.

What is the date of effect of the new percentage of care determinations?

1. Section 54B of the Act sets out the date of effect of the new determinations of percentage of care. The percentage of care applies to each day in a child support period on and from the “application day”. Relevantly and in accordance with subparagraph 54B(2)(c)(ii) of the Act, the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations. As the tribunal has revoked the existing percentage of care determinations with effect from 20 May 2018, the new determinations apply from 21 May 2018.

What is the date of effect of the tribunal’s decision?

1. An application for AAT first review of a 'care percentage decision' as defined in subsection 4(1) of the R&C Act, does not have to be lodged within 28 days. However, if it is lodged outside 28 days ( or 90 days for residents of an overseas jurisdiction), and the tribunal decides to either vary the objection decision or make a new decision, as in this case, the date of effect is the date on which the application for review was made (subsection 95N(1) of the R&C Act).

1. The tribunal may, if there are special circumstances that prevented the application for review being made within the relevant period, make a determination under subsection 95N(2) that paragraph 95N(1)(b) applies as if the reference to 28 days were a reference to such longer period as the tribunal determines to be appropriate. In this case Ms Lamberth’s application for AAT first review of the objection officer’s decision dated 19 October 2018 was not lodged until 10 September 2020; almost two years after the objection decision was made.

2. At the hearing Ms Lamberth said she could not understand how the Department could make a decision contrary to the court orders. She said the matter went back to court, which became her focus. She said she did not consider the child support until the court matter was finalised. She then gathered her information and put in her application.

3. The tribunal was not persuaded that these are special circumstances such that Ms Lamberth was prevented from lodging her application for AAT first review within 28 days after the objection officer’s decision dated 19 October 2018. The tribunal decided that the date of effect of its decision is 10 September 2020, being the date on which Ms Lamberth made her application for AAT first review.

DECISION

The tribunal decided to set aside the decision under review and substitutes the decision to:

• revoke the existing percentage of care determinations from 20 May 2018;

• make new percentage of care determinations to reflect that from 21 May 2018 Ms Lamberth had a percentage of care of the children of 73% and Mr Lamberth had a percentage of care of 27%; and

• the date of effect of the tribunal’s decision is 10 September 2020.