Laslett and Laslett (Child support)

[2021] AATA 1689

Laslett and Laslett (Child support) [2021] AATA 1689 (7 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC020714

APPLICANT:  Mr Laslett

OTHER PARTIES:  Child Support Registrar

Ms Laslett

TRIBUNAL:Member M Martellotta

DECISION DATE:  07 April 2021

DECISION:

The decision under review is varied so that:

a)    the existing care determination that Mr Laslett had 0% care and Ms Laslett had 100% care of the child is revoked and replaced with a new care determination that Mr Laslett had 100% care and Ms Laslett has 0% care as from 14 April 2020;

b) the tribunal declines to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988;

c)    the date of effect of the decision is 22 October 2020 which is the date Mr Laslett made his objection to the original care decision.

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 – date of effect provisions – no special circumstances that prevented the objection being lodged in time

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. This application for review concerns the percentage of care recorded in relation to a child. The parents of the child are Mr and Ms Laslett.[1]

   [1] The child ceased to be a child for purposes of a child support assessment when she turned 18 years of age [in] November 2020

2. The assessment had recorded care of the child as 100% to Ms Laslett and 0% to Mr Laslett as from 28 May 2018.

3. On 20 April 2020 Mr Laslett advised Services Australia – Child Support (the Agency) of a change in care.  On 6 May 2020 the Agency decided to record the relevant care percentages for the child as 68% to Mr Laslett and 32% to Ms Laslett as from 14 April 2020. Mr Laslett subsequently objected to that decision and the Agency recorded the date of objection as 26 November 2020.

4. On 26 November 2020 the Agency granted Mr Laslett an extension of time in which to lodge his objection. It is not apparent to the tribunal as to why the Agency considered an extension of time application in this matter as an objection to a care percentage decision is not subject to a time limit and can be made at any time.[2]

   [2] Subsection 81(1) of the Child Support (Registration and Collection) Act 1988 see also Child Support Guide at 4.1.8

5. On 1 February 2021 the Agency decided to allow Mr Laslett’s objection. Mr Laslett was to be recorded as having 100% care and Ms Laslett to have 0% care of the child as from 7 April 2020. The Agency also decided to refuse to make a determination under section 87AA of the Child Support (Registration and Collections) Act 1988 (the RC Act). This meant that the date of effect of the Agency decision was recorded as 26 November 2020 as it was not satisfied that special circumstances had prevented Mr Laslett from making his objection application within 28 days of the original decision.

6. On 3 February 2021 Mr Laslett applied to the tribunal for independent review of the objection decision.  The tribunal held a hearing on 7 April 2021 Mr Laslett  and Ms Laslett participated by conference telephone and gave evidence on affirmation. Documents provided by the Agency were numbered (1–206).

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 RC Act).

2. Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.[3]

   [3] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

3. At hearing Mr Laslett advised that his main issue with the objection decision was that the Agency did not backdate the date of effect of their decision to an earlier date. Ms Laslett advised that she did not agree with the care decision made by the Agency.

CONSIDERATION

Should the existing care determination be revoked and replaced?

1. Sections 49 and 50 of the Act require the Department to determine a person’s percentage of care where a person has had, or is likely to have a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.

2. Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out from the number of nights the child spends in their care. A new percentage of care can be determined by the Child Support Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.

3. In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to Services Australia of a change of care arrangement.  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.

4. Section 87AA of the RC Act provides that if a person objects to a care percentage decision more than 28 days after the person was served with a notice of the decision, the decision has effect from the date the person lodged the objection. Subsection 87AA(2) provides an exception to that general rule if the objections officer is satisfied that there are special circumstances that prevented the person from lodging the objection within 28 days then they may determine that the section applies as if they had objected within time.

5. The legislation does not define ‘special circumstances’, but the Family Court in Gyselman & Gyselman [1992] FLC 92-279 has held: ‘as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary’.

6. At hearing Mr Laslett provided the following evidence:

   a)Following a change in Ms Laslett’s work situation the child came into his care on a full-time basis from April 2020. It may have been around 7 April 2020 or perhaps around 14 or 15 April 2020.

   b)There had been a significant falling out between the child and her mother and what was to have been a temporary arrangement became permanent.

   c)From the date in April 2020 until the child turned 18 and ceased to become a child relevant to the assessment she was in his full-time care.

   d)He agrees that having told the Agency about the change in care on 20 April 2020 he subsequently told them that he would agree to Ms Laslett’s advice that she would still have care every third week.  He did not realise that he had objection rights. He agreed to this because he wanted a decision to be made quickly.

   e)It became apparent over time that the child would not return to her mother and this is why he did not seek review of the care decision earlier.

   f)It was in October 2020 when advising the Agency about a care change for another child that he advised them that he had had 100% care of the child since April 2020. He was subsequently advised that this had to be treated as an objection and he was told that he had to first apply for an extension of time to make his objection.

   g)He does not understand why the Agency would on the one hand decide that there were grounds to grant him an extension of time but then decide that there were not special circumstances which would back date the date of effect of his successful objection decision.

   h)The effect of the objection decision was pointless due to the date of effect being 26 November 2020; this was after the assessment for the child had ended.

   i)He does not think it fair that he had full-time care of the child and had to meet her costs when he had always met his child support liabilities when the child was in the mother’s care.

7. Ms Laslett told the tribunal that:

   a)From her point of view the relevant date in relation to a change in care was 21 April 2020 as this was the date she requested Queensland Police to remove the child from her home.

   b)She agrees that since that date she has not had any overnight care of the child, she has had contact but not care.

   c)She has always remained open to the child coming to stay with her if she so chose on her rostered week off but it has been the child’s decision not to do so.

   d)She agrees that the child left the house on a date before 21 April 2020 due to their disagreement however the child did not, in her view, actually stop living at her home until she removed her property from her house which was on 21 April 2020.

8. According to information provided by the Agency:

   a)There were no written care arrangements in place and they had recorded relevant care for the child as 0% to Mr Laslett and 100% to Ms Laslett.

   b)Mr Laslett contacted them on 20 April 2020 to advise of a change in care and that the child was residing with him on a full-time basis as from 14 April 2020.

   c)Ms Laslett was contacted and she disagreed with the advice. She said that there was a short time arrangement for a month whereby the child would stay with her father 100% but thereafter she would have care one week out of three in line with her fly in/fly out roster.

   d)On 6 May 2020 Mr Laslett told the Agency that he could not wait  for a decision and that whilst he disagreed with Ms Laslett’s description of care he would agree to her version so as to expedite a decision.

   e)On 6 May 2020 on the basis of the ‘agreement’ the Agency made a decision to record care as 68% to Mr Laslett and 32 % to Ms Laslett from 14 April 2020.

   f)Notice of the decision and attached assessment were sent to the parties on 6 May 2020.

   g)On 22 October 2020 Mr Laslett contacted the Agency advising that the mother had ‘kicked the child out’ and he had care 100% since 11 April 2020.

   h)On 3 November 2020 a follow up call noted that the change in care advised by Mr Laslett predated the existing care percentage recorded from 14 April 2020.

   i)On 4 November 2020 Ms Laslett was contacted and she advised that she disagreed with Mr Laslett’s advice. On the same date Mr Laslett advised the change in care occurred on 15 April 2020.

   j)On 26 November 2020 the Agency discussed care with Mr Laslett and on review concluded that the change in care advice was actually an objection and the objection was recorded as received on that date.

   k)Later, on 26 November 2020 Mr Laslett advised he had had 100% care of the child since 7 April 2020.

   l)Ms Laslett did not subsequently engage in the objection process.

   m)Mr Laslett provided evidence in the form of third party statements, a care diary and text messages in support of his objection.

   n)Text messages commencing from 13 April 2020 appear to reflect that the child and mother were in conflict and that the child was staying with her father.

   o)According to the diary provided in evidence, Mr Laslett recorded that the child moved in on 15 April 2020.

9. In this matter both parties agree that the child ceased residing with her mother on a full-time basis in April 2020 and that since a date in April 2020 Mr Laslett’s actual care was 100% and Ms Laslett’s care was 0%. The revocation of the existing care determination is not in dispute. The parties agree that the actual care of the child changed, the only issue between the parties was when the change in care event occurred.

10. The tribunal notes variation in the dates but on balance it concluded  and finds that the actual date that care changed was 14 April 2020 This is the date consistent with the advice provided at the time to the Agency by Mr Laslett and is corroborated by the text messages. The tribunal also is satisfied and finds that from 14 April 2020 Mr Laslett had 100% care and Ms Laslett had 0% care of the child.

11. The tribunal concluded that the existing care determination in which Mr Laslett had 0% care and Ms Laslett had 100% care of the child is revoked as from 13 April 2020 and a new care determination that Mr Laslett has 100% care and Ms Laslett has 0% care commences from 14 April 2020.[4]

    [4] Section 54F of the Act applies

What is the relevant date an objection was made to the original care decision?

1. As a preliminary issue the tribunal notes that the Agency has determined that the relevant date of objection in the above circumstances was 26 November 2020, that was the date that upon review the Agency decided to treat Mr Laslett’s advice (that he had had care since 11 April 2020)  not as a change in care event but as an objection.

2. The legislation does not require an objection to care to be in writing,[5] the RC Act provides that a person must state fully and in detail the grounds relied upon.[6] In the tribunal’s view Mr Laslett met this requirement when he made contact on 22 October 2020. It ought to have been apparent to the Agency, on the information they had before them at that point in time, that Mr Laslett’s advice was in fact an objection to their decision made on 6 May 2020 and was not a change in care event.  At hearing Ms Laslett told the tribunal that she had no objection to a finding that Mr Laslett’s date of objection was 22 October 2020 and not 26 November 2020.

   [5] Subsection 80(6) of the RC Act

   [6] Section 84 of the RC Act

3. The tribunal is satisfied and finds that Mr Laslett made his objection to the  original decision dated 6 May 2020 on 22 October 2020.

Should a determination be made pursuant to section 87AA of the RC Act?

1. In this matter the tribunal has found that the original care decision was made on 6 May 2020 and that Mr Laslett made his objection on 22 October 2020 a period greater than 28 days. The remaining issue is whether there are special circumstances which warrants a determination pursuant to subsection 87AA (2) of the RC Act.

2. As noted the Agency declined to make a determination under section 87AA of the RC Act as they were not satisfied special circumstances prevented Mr Laslett from making his objection within the prescribed time. The Agency gave the examples that Mr Laslett was not prevented by serious illness or an accident; had not experienced a personal trauma, did not have communication difficulties and had not reasonably relied upon inaccurate or misleading information.[7]

   [7] Page 15

3. In this matter the tribunal is not satisfied that special circumstances prevented Mr Laslett from making an objection within 28 days.  The evidence is that he wanted an early resolution of the care issue and for that reason agreed to a care percentage which did not reflect the actual care that was taking place.  The tribunal was satisfied that Mr Laslett was aware of the care decision made on 6 May 2020 and received relevant notification.  He said at the time there was some uncertainty but it was only when it became apparent that the child would not be returning to her mother that he contacted the Agency again in October 2020. He said his delay was mainly due to him wanting to see what would unfold

4. The tribunal declines to make a determination pursuant to subsection 87AA(2) of the RC Act. This means the date of effect of the decision is the date Mr Laslett made his objection which the tribunal has found to be 22 October 2020.

DECISION

The decision under review is varied so that:

a)the existing care determination that Mr Laslett had 0% care and Ms Laslett had 100% care of the child is revoked and replaced with a new care determination that Mr Laslett had 100% care and Ms Laslett has 0% care as from 14 April 2020;

b)the tribunal declines to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988;

c)the date of effect of the decision is 22 October 2020 which is the date Mr Laslett made his objection to the original care decision.