Larkson and Larkson (Child support)

Larkson and Larkson (Child support) [2020] AATA 5575 (4 November 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS: 2020/SC019483
2020/SC019496
2020/SC019495

APPLICANT: Mr Larkson
OTHER PARTIES: Child Support Registrar
Ms Larkson

TRIBUNAL:Member M Douglas
DECISION DATE: 4 November 2020
DECISION:

In review number 2020/SC019483 the Tribunal sets aside the decision under review and, in substitution, decides that Mr Larkson’s percentage of care for [the child] is 50% and Ms Larkson’s percentage of care for [the child] is 50%.

In review number 2020/SC019496 the decision under review is affirmed.

In review number 2020/SC019495 the Tribunal sets aside the decision under review and in substitution, decides that the existing percentages of care for [the child] not be revoked.

The Tribunal otherwise orders pursuant to subsection 43(6) of the Administrative Appeal Tribunal Act 1975 that the Tribunal’s decision in review number 2020/SC019495 has effect from 9 March 2020.

For the sake of clarity, the Tribunal notes that the reference to “existing percentages of care” in the decision the Tribunal made in review number 2020/SC019495 is a reference to the percentages of care the Tribunal has determined for [the child] in review number 2020/SC019483, being 50% for Mr Larkson and 50% for Ms Larkson. Because the decision the Tribunal made in review number 2020/SC019496 was affirmed and because the decision the Tribunal made in review number 2020/SC019495 takes effect from 9 March 2020, those percentages of care the Tribunal determined in review number 2020/SC019495 do not take effect until 9 March 2020.

The Tribunal also notes that the Tribunal’s decisions above do not affect the care percentage decisions the Registrar made on 20 February 2020, 4 March 2020 and 14 October 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

CHILD SUPPORT – date of effect of objection decision – whether there were special circumstances that prevented the objection being lodged in time – special circumstances did not exist – decision under review affirmed

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review set aside and substituted

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

The Tribunal is reviewing, on Mr Larkson’s application, three decisions the Child Support Registrar made regarding Mr Larkson and Ms Larkson’s percentages of care for their son [the child]. The Registrar acts through a Government department known as Services Australia (previously known as Department of Human Services). It is convenient to refer to the Registrar in these reasons as Services Australia and so, hereafter, a reference to Services Australia is to be taken as reference to the Registrar.
The decisions the Tribunal is reviewing are:
a.an objection decision dated 29 June 2020 that “partly allowed” an objection of Mr Larkson to a care percentage decision dated 27 November 2019. The care percentage decision of 27 November 2019 was firstly, to revoke the existing percentages of care for [the child] of 100% for Ms Larkson and 0% for Mr Larkson, with that revocation taking effect on 20 November 2019, and secondly, to determine new percentages of care for [the child] of 100% for Mr Larkson and 0% for Ms Larkson. Which applied from 21 November 2019. The objection decision was “to refuse to reflect the care of [the child] as being in [Mr Larkson]’s 100 percent care from 21 November 2019”. In other words, the objection decision set aside the care percentage decision of 27 November 2019 and substituted a decision to refuse to revoke the existing percentages of care for [the child] of 100% to Ms Larkson and 0% to Mr Larkson. The Tribunal’s case reference for this matter is review number 2020/SC019483.
b.a decision not to make a determination under subsection 87AA(2) of the Child Support (Registration) Collection Act 1988 (the R&C Act). The effect of that decision was that the objection decision of Services Australia to substitute care percentages of 100% for Ms Larkson and 0% for Mr Larkson took effect only from the date that Mr Larkson lodged his objection to the care percentage decision, which was on 9 March 2020.
c.an objection decision dated 26 June 2020 disallowing an objection of Mr Larkson to a care percentage decision Services Australia made on 16 December 2019. The care percentage decision of 16 December 2019 was to revoke the care percentages for [the child], as had been determined in accordance with the earlier decision of 27 November 2019, with that revocation taking effect on 9 December 2019 and to determine new care percentages for [the child] of 100% for Ms Larkson and 0% for Mr Larkson from 10 December 2019. The objection decision dated 26 June 2020 was to disallow Mr Larkson’s objection.
The ultimate effect of those decisions was that the percentages of care for [the child] from 21 November 2019 to 9 December 2019 were 100% for Mr Larkson and 0% for Ms Larkson and thereafter 100% for Ms Larkson and 0% for Mr Larkson. The Tribunal notes that those percentages of care remained extant until 20 May 2020 when, in accordance with a care percentage decision Services Australia made on 14 October 2020, those care percentages were revoked with effect on 20 May 2020 and care percentages of 78% for Mr Larkson and 22% for Ms Larkson were determined to apply from 21 May 2020.
The Tribunal notes, for completeness, that within this period there were further care percentage decisions Service Australia made on 20 February 2020 and 4 March 2020. Both those decisions were not to revoke the existing percentages of care. Those decisions followed Mr Larkson notifying Services Australia on 7 January 2020 and on 2 March 2020 that he had greater care of [the child] than that reflected in his existing percentage of care. No objections have been lodged with respect to the care percentage decisions and accordingly no application can be made to the Tribunal to review those decisions.
The Tribunal heard Mr Larkson’s applications for review on 3 November 2020. He and Ms Larkson participated by telephone, and both gave sworn oral evidence.

ISSUES

The issue the Tribunal must consider is whether, as at the date Services Australia made the care percentage decisions of 27 November 2019 and 16 December 2019, there were changes in [the child]’s care from that reflected in the existing care percentages such that if new care percentages were to be determined for him they would affect the cost percentages used for him in the assessment. Further, the Tribunal must consider whether there were special circumstances that prevented Mr Larkson from lodging his objection to the care percentage decision of 27 November 2019 more than 28 days after he received notice of the decision.

CONSIDERATION

The task of the Tribunal is to consider what is the correct or preferable decision that Services Australia should have made. The Tribunal may consider material that was not before Services Australia at the time the original decision was made. However, because the care percentage decisions contain a temporal element the material the Tribunal can consider must relate to events that occurred before the original decisions were made.
The original care percentage decisions Services Australia made contain a temporal element because sections 49 and 50 of the Child Support (Assessment) Act 1989 (the Act), which are the provisions that empower Services Australia or the Tribunal in its place to make a care percentage decision, require consideration of the pattern of care a parent has had or is likely to have of their child during a care period. A care period is such period as Services Australia, or the Tribunal in its place, considers appropriate having regard to all the circumstances. The care percentages determined pursuant to either subsections 49(2) or 50(2), based on that consideration, are to be applied, in accordance with subsection 54B(1A) of the Act, for each day of a child support period until the determination is revoked. Hence, because what is being decided is a parent’s care percentage that is to be applied for a period of time, which involves consideration of what the parent’s pattern of care is likely to be of their children for a care period, the decision necessarily involves a temporal element. Accordingly, the Tribunal cannot take into account events that occurred subsequent to the date upon which the original care percentage decision was made.[1]
[1] See Shi v Migration Agents Registration Authority [2008] HCA 31 per Kiefel J at [143] and Frugtniet v Australian Securities & Investments Commission [2019] HCA 16 at [15]
[The child] has been diagnosed with autistic spectrum disorder which results in his having mental health issues. Until 20 November 2019 he had for several months been living with Ms Larkson all of the time. [The child] was then 14 years of age, nearing 15 years of age.
Also living in Ms Larkson’s house was her partner, [the child]’s two siblings and his three step-siblings. Ms Larkson’s evidence was that [the child], due his autistic spectrum disorder and consequent mental health issues, was difficult to manage in a household with several other people. At some time around 20 November 2019 he assaulted Ms Larkson’s partner. On the following day Ms Larkson drove [the child] to Mr Larkson’s house. Ms Larkson’s evidence was that it was never her intention that [the child] would be staying with Mr Larkson all of the time thereafter. Rather, she expected the situation would be that [the child] would need to spend some time with Mr Larkson and not stay all of the time with her, and this was so [the child]’s behaviour could be better managed.
[The child] remained in Mr Larkson’s house until early December 2019. He then assaulted Mr Larkson. Mr Larkson called the police and [the child] was charged and granted bail, a condition of which was that he had to reside with Ms Larkson. Approximately 10 days later, [the child] appeared in court, at which time the condition of his bail requiring him to reside with Ms Larkson was revoked. An apprehended violence order was made against [the child] for the protection of Mr Larkson. Mr Larkson’s evidence was that [the child] then returned to his home.
Mr Larkson’s evidence was also that each time [the child] came to his house [the child] indicated to him that he wanted to stay there and that [the child] was adamant that he was not going back to Ms Larkson’s house. Nevertheless, [the child] did so.
The Tribunal notes that [the child] was at the time enrolled in a school that was nearer to Ms Larkson’s residence than Mr Larkson’s residence. That meant that [the child] would have to travel less each day to his school when he was residing at Ms Larkson’s place. The Tribunal infers from that that there was consequent attraction for [the child] to stay at Ms Larkson’s house.
There is no controversy between Mr Larkson and Ms Larkson that there were problems with [the child]’s behaviour due to his health that made his care difficult to manage. His behaviour was at times violent. This caused problems with [the child] staying at Ms Larkson’s residence all of the time, given the number of other children residing at her place. His behaviour also caused problems with his staying at Mr Larkson’s house. The Tribunal infers that there would have been incentive for [the child] to return to Ms Larkson’s house, at least on occasions, given his siblings and step-siblings were residing there. By returning, [the child] could socialise with his siblings. Further, his school was nearer to Ms Larkson’s house than Mr Larkson’s house and that too would have provided incentive for [the child] to return on occasions to Ms Larkson’s house.
The Tribunal does not consider that [the child]’s expression of intent to Mr Larkson to the effect that he would not return to Ms Larkson’s house was indicative of what would occur.
When considered based on what is known to have occurred at the time Services Australia made the original care percentage decisions on 27 November 2019 and 16 December 2019, it seems to the Tribunal that Mr Larkson and Ms Larkson approached the issue of where [the child] would reside with flexibility, given the problems with his behaviour. Indeed, flexibility was needed. It seems to the Tribunal based upon what was occurring then that the pattern of care for [the child] was never going to be 100% to one or the other parent. It seems to the Tribunal, based on the events that had occurred prior to the dates on which the original decisions were made, that it was likely that due to the behavioural issues arising as a consequence of [the child]’s health, Mr Larkson and Ms Larkson would share [the child]’s care roughly equally.
In other words, doing the best it can with the evidence, the Tribunal’s view is that, when considering the pattern of care of [the child] at 27 November 2019 and 16 December 2019, it seems likely that [the child] would be staying roughly equal times with Mr Larkson and with Ms Larkson.
Accordingly, both the care percentage decisions made on 27 November 2019 and 16 December 2019 were wrong.
The Tribunal considers that in review number 2020/SC019483 the correct decision would have been to revoke the existing care percentages of 100% for Ms Larkson and 0% for Mr Larkson with effect on 20 November 2019 and to determine new percentages of care of 50% for Mr Larkson and 50% for Ms Larkson from 21 November 2019.
The correct decision in review number 2020/SC019495 would have been to refuse to revoke the existing percentages of care of 50% for Ms Larkson and 50% for Mr Larkson that the Tribunal shall substitute for the care percentage decision of 27 November 2019.
As mentioned, Mr Larkson did not lodge his objections to the care percentage decisions of 27 November 2019 and 16 December 2019 until 9 March 2020.
Subsections 87AA(1) and (2) of the R&C Act together have the effect that if a person objects to a care percentage decision more than 28 days after being served with notice of it, then any decision of Services Australia on the objection that varies or substitutes the primary care percentage decision will only apply from the date the objection was made, unless there were special circumstances that prevented the person from lodging the objection within 28 days. If there were special circumstances, then Services Australia has a discretion to permit the varied or substituted decision to apply from a later date.
In the letters that Mr Larkson received from Services Australia notifying him of its care percentage decisions of 27 November 2019 and 16 December 2019, he was informed to call Services Australia if he considered the decision to which the letter referred was incorrect. He was advised that he could ask Services Australia “to review the decision (we call this an objection) within 28 days from the date he received each letter”. The words “28 days from the date you receive this letter” were in bold. Mr Larkson was also advised of the web address of Services Australia where he could access information about how to object.
In terms of whether there were special circumstances that prevented Mr Larkson lodging an objection to these decisions until 9 March 2020, Mr Larkson’s evidence to the Tribunal was that there had been several changes with respect to [the child]’s care in the period and he thought it best to “group them together in the one appeal”. He said that when he got the letter from Services Australia refusing to revoke the care percentage decision following his notification of a change in [the child]’s care in January 2020, he decided to object. He also said that at the time he was getting confused by the volume of paperwork he was receiving from Services Australia. He said each time he received notice of a decision from Services Australia it came with four copies of paperwork. He said that he got both a letter addressed to him and a copy of the letter addressed to Ms Larkson as well as two copies of the assessment.
In the Tribunal’s view, none of those circumstances are special, and even if they were none prevented him from lodging his objection within 28 days from having received notification of the care percentage decisions. Accordingly, the Tribunal affirms the decision of Services Australia made on 29 June 2020 to refuse to make a determination under subsection 87AA(2) of the R&C Act with respect to the care percentage decision that was made on 27 November 2019.
The Tribunal notes that in accordance with subsection 43(6) of the Administrative Appeals Tribunal Act1975 (the AAT Act) the decision the Tribunal makes in review number 2020/SC019483 in substitution for the decision of Services Australia shall be deemed to be a decision of Services Australia. Hence, the Tribunal’s affirmation of the decision of Services Australia to refuse to make a determination under subsection 87AA(2) means that the substituted decision the Tribunal makes for the objection decision of Services Australia of 29 June 2020 takes effect on 9 March 2020.
With respect to the objection decision of 26 June 2020, which relates to the care percentage decision of 16 December 2019, Services Australia did not need to consider the provisions of section 87AA because its decision on the objection did not have the effect of varying or substituting its original care percentage decision. The Tribunal will be setting aside that decision because the correct decision should be that there be no change in the existing percentages of care for [the child], those percentages of care being the care percentages that the Tribunal is substituting in review number 2020/SC019483. However, that decision will not take effect until 9 March 2020 because the Tribunal is affirming the section 87AA decision of Services Australia. The effect of that, when coupled with setting aside the decision in review number 2020/SC019495 and substituting a decision there is no change in the percentages of care, would mean, without more, that the incorrect percentages Services Australia determined on 27 November 2019 of 100% for Mr Larkson and 0% for Ms Larkson would continue to apply until 9 March 2020. That would, in the Tribunal’s view, be manifestly unfair to Ms Larkson. Further, it would mean that Mr Larkson would benefit from his delay in lodging an objection, where there were no special circumstances that prevented him from lodging an objection. The Tribunal therefore “otherwise orders” pursuant to subsection 43(6) of the AAT Act that the date of effect of the Tribunal’s decision in case 2020/SC019495 not to revoke the care percentage decisions of 50% for Mr Larkson and 50% for Ms Larkson for [the child] that the Tribunal is substituting in case 2020/SC019483 take effect on 9 March 2020. That will mean that the incorrect decision Services Australia at made on 16 December 2019, whereby Ms Larkson’s care percentage for [the child] was determined to be 100% and Mr Larkson’s 0% will continue to apply until 8 March 2020.
Simply put, the 50% percentages of care that the Tribunal has determined that each party has for [the child] shall take effect from 9 March 2020 and the percentages of care of 100% for Ms Larkson for [the child] and 0% for Mr Larkson for [the child] will continue to apply from 10 December 2019 until 8 March 2020.

DECISION

In review number 2020/SC019496 the decision under review is affirmed.

In review number 2020/SC019495 the Tribunal sets aside the decision under review and in substitution, decides that the existing percentages of care for [the child] not be revoked.

The Tribunal otherwise orders pursuant to subsection 43(6) of the Administrative Appeal Tribunal Act 1975 that the Tribunal’s decision in review number 2020/SC019495 has effect from 9 March 2020.

For the sake of clarity, the Tribunal notes that the reference to “existing percentages of care” in the decision the Tribunal made in review number 2020/SC019495 is a reference to the percentages of care the Tribunal has determined for [the child] in review number 2020/SC019483, being 50% for Mr Larkson and 50% for Ms Larkson. Because the decision the Tribunal made in review number 2020/SC019496 is affirmed and because the decision the Tribunal made in review number 2020/SC019495 takes effect from 9 March 2020, those percentages of care the Tribunal determined in review number 2020/SC019495 do not take effect until 9 March 2020.

The Tribunal also notes that the Tribunal’s decisions above do not affect the care percentage decisions the Registrar made on 20 February 2020, 4 March 2020 and 14 October 2020.

[2020] AATA 5575

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Family Law

Administrative Law

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Jurisdiction

Statutory Construction

Appeal

Procedural Fairness

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