Leong and Jarman (Child support)

[2019] AATA 575

Leong and Jarman (Child support) [2019] AATA 575 (19 February 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015484

APPLICANT:  Ms Leong

OTHER PARTIES:  Child Support Registrar

Mr Jarman

TRIBUNAL:Member Y Webb

DECISION DATE:  19 February 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages in relation to the child were 16% to Ms Leong and 84% to Mr Jarman from 24 November 2017 with a date of effect of 2 July 2018.

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 - objection was lodged late - date of effect of the tribunal’s decision - no special circumstances - 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 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 review is about the percentages of care of Ms Leong and Mr Jarman in relation to their son (“the child”) in the period from 24 November 2017.

2. The child at that time was 12 years old.  There are court orders made in 2010 but at least since 4 October 2017 these orders have not been followed by the parents.

3. A child support assessment has been in place in relation to the care of the child since 14 March 2014 and collectable by the Department of Human Services (“Child Support Agency”) from 31 October 2014.

4. It is not in dispute that there was a change of care on 4 October 2017 when the Child Support Agency made a decision that Mr Jarman had 100% care of the child and Ms Leong nil care from 4 October 2017.

5. It is also not disputed that a new care decision was made on 24 September 2018 that Ms Leong had 100% care and Mr Jarman nil care from 21 September 2018.

6. On 29 January 2018 Ms Leong contacted the Child Support Agency and asserted that there had been a change in the care of the child.  She stated that from 24 November 2017 a new pattern of care commenced and that from that date she was having care of the child every second Friday and Saturday night plus half of all school holidays.  She stated that in the recent Christmas vacation period she had care of the child for three weeks.

7. On 20 March 2018 the Child Support Agency determined to refuse Ms Leong’s application for a change in care as the care was disputed and Ms Leong had not provided any supporting evidence by the due date.

8. On 2 July 2018 Ms Leong objected to that decision but on 22 October 2018 an objections officer disallowed her objection (decision received by Ms Leong on 2 November 2018).

9. On 23 November 2018 Ms Leong requested a review by the Administrative Appeals Tribunal (“the Tribunal”).

10. She attended the hearing on 19 February 2019 by way of a telephone conference and gave evidence on affirmation.

11. Mr Jarman also attended the hearing by way of a telephone conference and also gave evidence on affirmation.

ISSUES

1. The issues for the Tribunal to determine are:

   a)    What were the actual care arrangements in relation to the child in the relevant care period?

   b)    Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care under the new determination and from when should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

3. The pattern can be established either according to a ‘care arrangement’ (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

4. The Assessment Act provides that the care percentage must be determined for a ‘care period’ which is effectively defined as ‘…such period…as the Registrar considers to be appropriate having regard to all of the circumstances’. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period.

5. Section 54A of the Assessment Act then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

6. In this case, Ms Leong and Mr Jarman did not contend that nights were an unsuitable measure of the care that they were providing to their son and the evidence in the Child Support Agency papers indicates that nights have been the measure of care to date.  The Tribunal finds that nights are an appropriate method of ascertaining the actual care of the child in this case.

7. Hence, the Tribunal must form a view as to the likely pattern of care up to the date of the original determination; that may or may not be informed by care prior to, or after, that date.

Ms Leong’s contentions

1. Ms Leong stated that she kept a diary of the nights that the child was in her care and she had forwarded this to the Child Support Agency. 

2. Ms Leong had also provided copies of text messages between herself and Mr Jarman in support of the care diary regarding her nights of care.  She stated that together these showed that in November 2017 she had two nights of care (overnight on 24 and 25 November 2017); in December 2017 she had two nights of care (overnight on 8 and 9 December 2017); in January 2018 – being the school holidays – she had overnight care from 6 January until she returned the child to his father’s care on 28 January 2018: a total of 22 nights); in February 2018 she had two nights of care (overnight on 2 and 3 February 2018) and in March 2018 she had two nights of care (overnight on 16 and 17 March 2018).

3. Ms Leong provided a copy of the flight itinerary for herself and the child departing 21 January 2018 to [a location]and returning 26 January 2018.

4. Ms Leong stated that her care increased after March 2018 in that she had care for 12 nights in April 2018 (school holidays falling in that period); five nights in May 2018; six nights in June 2018; 11 nights in July 2018 (school holidays) and two nights in August 2018 (up to 17 August 2018).  She provided other evidence to support these dates.

5. Ms Leong also provided a statement from her partner, [Mr A], dated 27 December 2018, corroborating her statement that she had overnight care of the child on 24 and 25 November 2017 and 8 and 9 December 2017.  [Mr A] also stated that the child was in Ms Leong’s care on Boxing Day 2017.

6. Ms Leong also provided a statement from a work colleague, [Mr B], dated 29 December 2017, who stated that he witnessed that the child was in Ms Leong’s care in the afternoon of “Friday 24^th” (no further details were stated regarding the month and year).

7. Ms Leong also provided a statement from [Ms C] who stated that the child attended boot camp on Saturday 3 February, Saturday 26 February and Saturday 9 June (no further details were stated regarding the year).

8. Ms Leong stated that she was reluctant to press for additional care because she was concerned that Mr Jarman would withhold care.

9. Ms Leong stated that she does not consider it is fair that she is attributed with nil care and Mr Jarman with 100% care when she was having care on a regular basis, including increased care in the school holidays but this care was not being taken into account in the child support assessment.  She stated that to pick up the child from his father’s home and return to her home was a four-hour round trip and she had to take time off work on Friday afternoons to manage it.

Mr Jarman’s contentions

1. Mr Jarman stated that he cannot locate his care diary for 2017 so he is unable to verify whether Ms Leong’s stated nights of care in November and December 2017 are accurate or not.

2. Mr Jarman did not deny that the child was in Ms Leong’s care for three weeks in January 2018 and for two nights in November and December 2017, and February and March 2018 but he denied that there was a regular pattern of care.  He stated that the care was very ad hoc from November 2017 and that he left the decision about where the child stayed up to the child.  He stated that the child could go to stay with whichever parent he wished as long as he had parental permission.  He denied that he had ever withheld care of the child from Ms Leong. He emphasised that it was always the child’s choice which governed with whom the child stayed.

3. Mr Jarman stated that he does not believe that there was a regular pattern of care from 24 November 2017 up to March 2018 when the Child Support Agency made its decision.

4. Mr Jarman stated that it was difficult for him to remember with precision what was happening back in the period in question.  He has lost the records from that time.  He stated that he tried to have a discussion with Ms Leong about care but she refused to sign any care arrangement.

5. Mr Jarman provided a letter from his lawyer.  This included nights of care by the respective parents between January 2018 and August 2018.  This letter stated that Ms Leong had seven nights of care in January 2018, two nights of care in February 2018 and no care in March 2018.

6. Mr Jarman stated that he does not agree that from 24 November 2017 there was a pattern of care comprising two nights per fortnight and half of the school holidays.

The Tribunal’s consideration

1. The Tribunal considers that in this case there is limited dispute between the parents about the care which took place between 24 November 2017 and 20 March 2018 when the Child Support Agency made its original decision to refuse Ms Leong’s request for a change in care.  However, while Ms Leong considers there was a pattern of care, Mr Jarman considered that the care was ad hoc and that there was no pattern of care.

2. Having heard the parents and considered the Child Support Agency papers the Tribunal is satisfied that Ms Leong’s care in the relevant 12-month care period beginning 24 November 2017 was:

Dates – nights in care	Number – nights in care
24 and 25 November 2017	2
8 and 9 December 2017	2
6 to 27 January 2018	22
2 and 3 February 2018	2
16 and 17 March 2018	2

1. While the Tribunal does not consider this pattern of care (during school terms) supports a finding that Ms Leong had care of the child two nights a fortnight in the period between 24 November 2017 and 20 March 2018 as she contended, the Tribunal finds that in this period there was a pattern of care of two nights per month during school terms. 

2. The Tribunal acknowledges that Ms Leong may have had more care after the April 2018 school holidays as the year progressed but the only relevant care which the Tribunal is able to consider is the period between 24 November 2017 and the time when the Child Support Agency made its original determination on 20 March 2018. 

3. In relation to the school holiday periods, the Tribunal is satisfied that there was a likely pattern of care during school holidays with Ms Leong having care for half of the school holidays.  This was evident in the Christmas vacation period with the Tribunal being satisfied that Ms Leong had care for 22 continuous nights from 6 January to 27 January 2018. 

4. Over a 12-month care period beginning 24 November 2017 the Tribunal finds that Ms Leong’s percentage of care was 16% (two nights every four weeks in the 40 school weeks = 20 nights; plus half of the 12 weeks of school holidays = 6 weeks (42 days) = total of 62 nights, divided by 365 = 16.9%. The rounding rules prescribe that if the care percentage is less than 50% the number is rounded down to the nearest whole percent (section 54D of the Assessment Act). Hence, the Tribunal finds that the care from 24 November 2017 was 16% to Ms Leong and 84% to Mr Jarman.

5. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care of a child that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

6. In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. Prior to 24 November 2017 Ms Leong had a care percentage of 0% and a cost percentage of nil. Mr Jarman had a care percentage of 100% and a cost percentage of 100%. The Tribunal’s determination will mean that Ms Leong will have a care percentage of 16% and a cost percentage of 24% and Mr Jarman will have a care percentage of 84% and a cost percentage of 76%. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Assessment Act are met (and as section 54G of the Assessment Act does not apply because this determination has not resulted in either of the parties having less than regular care) the previously existing determinations of percentage of care are revoked in accordance with section 54F which states:

   54FDetermination must be revoked if there is a change to the responsible person’s cost percentage

   (1)If:

   (a)a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and

   (b)if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and

   (c)the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

   (d)the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

   (e)section 54G does not apply;

   the Registrar must revoke the determination.

   Note: The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

2. Subsection 54F(2) of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 24 November 2017. It also finds that Ms Leong notified the Child Support Agency of the change on 29 January 2018. As the Child Support Agency was not notified within 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(2)(c) on 28 January 2018, being the day before the Child Support Agency was notified of the change of care.

3. Having revoked the existing determinations, the Tribunal must now make new determinations of Ms Leong’s and Mr Jarman’s percentages of care under section 50 of the Assessment Act. The Tribunal did not need to consider sections 51 and 52 of the Assessment Act because while both parties confirmed that there were court orders from 2010, neither parent had taken action in relation to enforcing the court orders. Hence, the Tribunal considered the actual care which was occurring in the care period. Section 54B of the Assessment Act sets out the date of effect of the new determinations of percentages of care. The percentage of care applies to each day in a child support period on and from the “application day”. In accordance with subparagraph 54B(2)(c)(ii) the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations. The Tribunal has revoked the existing determinations with effect from 28 January 2018. Therefore, the new determinations would normally apply from 29 January 2018. However, subsection 43(6) of the Administrative Appeals Tribunal Act 1975 (AAT Act) allows the Tribunal to specify a date from which its decision should take effect.

Date of effect

1. The AAT Act does not elaborate on the factors which should be taken into account in specifying a date from which the decision should take effect. However, the Tribunal has had regard to the guidance provided by section 87AA of the Registration and Collection Act in circumstances where an objection is allowed and this has the effect of varying the determination to which the care percentage decision relates, or substituting a new decision, and in circumstances where the objection was lodged more than 28 days after notice of the care percentage decision was served. In those cases the date of effect of the review decision is the day on which the person lodged the objection. In the Tribunal’s view, the specified date under subsection 43(6) of the AAT Act ought to reflect the limits that would have applied had the objection been allowed.

2. In Ms Leong’s case, her objection to the decision of 20 March 2018 was disallowed but the decision of this Tribunal has set that decision aside.  Her formal objection, however, was lodged on 2 July 2018 being approximately 103 days after the decision of 20 March 2018. If the objections officer had allowed Ms Leong’s objection the date of effect of that decision would have been the day on which Ms Leong lodged the objection: that being 2 July 2018.

3. The Tribunal considered whether 2 July 2018 was an appropriate date of effect bearing in mind that this date is just over five months after Ms Leong requested a change to the percentages of care on 29 January 2018.

4. The Tribunal considered whether there were any “special circumstances” which prevented her from lodging her objection at an earlier date.

5. The term “special circumstances” is not defined in the legislation.  The Tribunal had regard to the Child Support Guide.  While the Tribunal is not bound by policy, the Full Federal Court decided in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should take into account relevant government policy providing that it is not inconsistent with the provisions or objects of the legislation. The Guide at 4.1.8 outlines some considerations in regard to considering special circumstances in this context. It relevantly provides:

   In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:

   othe parent was seriously ill or had an accident that stopped them from lodging an objection

   othe parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

   othe parent had communication difficulties, including isolation, illiteracy or poor English-language skills

   othe parent reasonably relied upon inaccurate or misleading information.

1. Ms Leong informed the Tribunal that she didn’t object to the decision of 20 March 2018 within 28 days because she was under a lot of stress and was scared that Mr Jarman would withhold care of the child if she objected to the decision.  She stated that Mr Jarman had previously tried to withhold care and she was very worried that that may happen again.  Ms Leong stated that she only had the courage to object when the child made clear that he wanted to stay with her on a regular basis.    

2. The Tribunal accepts that Ms Leong’s reasons for not lodging an objection within 28 days were sincere and genuinely held, but the evidence does not support a finding that Mr Jarman prevented the child from staying overnight with Ms Leong at least from 24 November 2017. The Tribunal accepts that Ms Leong believed that Mr Jarman withheld care on 9 November 2017 by not responding to her calls and messages and by stating that the counsellor had advised that the child not see Ms Leong. However, Ms Leong clarified the situation with the counsellor and that situation was resolved by Ms Leong collecting the child without Mr Jarman preventing her care on 24 November 2017. The Tribunal did not find that the circumstances were special to the extent that they prevented Ms Leong from lodging an objection within the prescribed period of 28 days. The Tribunal confirms its view that its decision ought to reflect the limits that would have applied had the objection been allowed. Therefore, pursuant to subsection 43(6) of the AAT Act, the Tribunal concludes that the date of effect of the change of care (being 16% to Ms Leong and 84% to Mr Jarman) is 2 July 2018.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages in relation to the child were 16% to Ms Leong and 84% to Mr Jarman from 24 November 2017 with a date of effect of 2 July 2018.