Luxton and Lakin (Child support)

[2018] AATA 4160

Luxton and Lakin (Child support) [2018] AATA 4160 (3 October 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014651

APPLICANT:  Ms Luxton

OTHER PARTIES:  Child Support Registrar

Mr Lakin

TRIBUNAL:Member W Kennedy

DECISION DATE:  3 October 2018

DECISION:

The Tribunal sets aside the decision in respect of care and, in substitution, decides that Ms Luxton had 100% care during the period from 15 December 2017 to 1 February 2018 but that as a result of an interim determination the assessment will be based on Mr Lakin continuing to have 39% care and Ms Luxton continuing to have 61% care. Those percentages will continue to apply to the assessment from 2 February 2018 as a result of the resumption of the existing care arrangement.

The Tribunal affirms the decision in relation to section 87AA of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – court orders not complied with – reasonable action taken – decision to make an interim determination – decision under review set aside and substituted

CHILD SUPPORT – refusal to make a determination under subsection 87AA(2) – special circumstances did not prevent the applicant from lodging the objection to the care percentage decision within time – decision under review affirmed

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. Ms Luxton and Mr Lakin are the parents of [Child 1], who was born in June 2007 and in respect of whom there has been a child support assessment since 4 December 2009.  This application concerns the percentages of care of [Child 1] used in the child support assessment.

2. From 31 October 2014 the child support assessment has been based on court orders dated 29 October 2014.  The assessment shows that Ms Luxton has 61% care and Mr Lakin has 39% care.  On 12 January 2018 Ms Luxton advised the Department that she had had 100% care of [Child 1] from 15 December 2017 and that therefore the child support assessment was no longer correct.  After discussing the matter with Mr Lakin, on 17 January 2018 the Department decided to accept Ms Luxton’s advice and to change the child support assessment so that with effect from 15 December 2017, it was based on Ms Luxton having 100% care of [Child 1].

3. On 17 May 2018 Mr Lakin objected to the decision, saying that care was being withheld by Ms Luxton and that he was seeking a court order reinstating his care.  The Department allowed an extension of time for Mr Lakin to lodge his objection.  On 16 July 2018 a Department objections officer determined that Ms Luxton had 100% care of [Child 1] with effect from 15 December 2017 but that the provisions relating to an interim decision had been satisfied.  This meant that the child support assessment was based on Mr Lakin continuing to have 39% care of [Child 1] up to 23 March 2018 and on Ms Luxton having 100% care of [Child 1] from 24 March 2018.

4. On 24 July 2018, Ms Luxton applied to the Administrative Appeals Tribunal (the Tribunal).  The Tribunal considered the application and determined the matter on 3 October 2018.  In considering the application, the Tribunal took into account the oral evidence of Ms Luxton and Mr Lakin together with the documentary material provided by the Department (folios 1 to 266).  Ms Luxton and Mr Lakin both attended the hearing by telephone and gave their oral evidence under affirmation.  The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

1. In this case the Tribunal has to decide the percentage of care that each of the parents has or is likely to have of [Child 1] in the care period.  If this is different to the percentage of care used in the child support assessment, the Tribunal must decide the date of effect of such change.

CONSIDERATION

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the RC Act).

2. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act. The formula contains a number of elements called ‘particulars of the assessment’. This includes the ‘percentage of care’ for each parent in relation to [Child 1].

3. The Department makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act. These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and for those determinations to be revoked and remade in specified circumstances.

4. The parents agree that with effect from 15 December 2017 Mr Lakin did not have care of [Child 1].  At the hearing the parties described further changes in care that had taken place subsequent to the decision before the Tribunal.  The Tribunal understands that court orders were issued on 23 May 2018 and that these orders provide for the care of [Child 1] from 23 May 2018.  The Tribunal emphasises that it is only the decision made by the Department on 16 July 2018 (which concerns a change of care that took place on 15 December 2017) that is before the Tribunal.  Changes of care subsequent to 15 December 2017 are not before the Tribunal and the Tribunal’s determination does not affect the court orders of 23 May 2018 or any decisions made by the Department in relation to those subsequent changes.

10.  The critical issue before the Tribunal is whether the change of care which took place on 15 December 2017 was because an existing care arrangement was not being complied with.  If so, the Tribunal must then determine whether Mr Lakin was taking reasonable action to recover care. 

11. At the hearing Ms Luxton said that the change of care had actually taken place on 3 December 2017 and that she had only referred to 15 December 2017 because the Department had told her it could only backdate the change for six weeks. Ms Luxton said that she had care of [Child 1] continuously from 3 December 2017 to 2 February 2018 when Mr Lakin again began having care of [Child 1]. The Tribunal has some difficulty with Ms Luxton’s oral evidence in this regard. There is no evidence of her having mentioned 3 December 2017 previously and the Tribunal is aware of no six week rule. Moreover 3 December 2017 is within six weeks of 12 January 2018. It is possible that Ms Luxton is referring to the 28 day provision found in subsection 54F(3) of the Act. If a change in fact took place on 3 December 2017 and Ms Luxton reported it on 12 January 2018 the application of that part of the legislation would mean that any change to the assessment could only take effect on 12 January 2018. As Ms Luxton’s oral evidence in this regard is directly contradicted by all of the documentary evidence before the Tribunal, the Tribunal gives it little weight. Ms Luxton said that subsequent to the change of care she had taken [Child 1] to the changeover point at the appropriate times in accordance with the court orders but that Mr Lakin had not collected [Child 1].

12.  At the hearing Mr Lakin said that he continued to have care of [Child 1] in accordance with the court orders until 15 December 2017.  He said that he had never previously heard the suggestion that there had been any change of care on 3 December 2017 and he referred to the affidavit he had previously provided to the Department.  He said that when [Child 1] had returned to Ms Luxton’s care on 15 December 2017 he had attempted to resume his care of [Child 1] and had gone to the agreed changeover point at the appropriate times but that Ms Luxton had not arrived with [Child 1].  Mr Lakin said that he had tried to contact his lawyer immediately it became apparent that Ms Luxton was withholding care, but that at that point his lawyer was on leave.  When he returned from leave in January 2018 his lawyer continued the correspondence concerning [Child 1’s] care with Ms Luxton’s lawyers.  Mr Lakin has provided copies of correspondence which demonstrate ongoing efforts by him to resume care of [Child 1].

13.  Clearly there is a disagreement between the parents as to whether care of [Child 1] was being withheld from Mr Lakin.  Mr Lakin claims that Ms Luxton was withholding care while Ms Luxton claims that Mr Lakin was declining to take up care.  Neither parents’ evidence is particularly compelling, however Mr Lakin’s evidence seems most consistent with the surrounding circumstances.  The uncontested evidence before the Tribunal is that Mr Lakin did not have care of [Child 1] from 15 December 2017 but that he made ongoing efforts to regain care.  These efforts consist of consulting with his lawyers, commencing legal action and ultimately obtaining a court order.  It is also uncontested between the parties that Mr Lakin regained care in accordance with the care arrangement with effect from 2 February 2018.  Thus the period of concern in this case extends only between 15 December 2017 and 1 February 2018, with care being in accordance with the ongoing care arrangement prior to and following that period.

14. Section 51 of the Act provides:

Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

(1)  This section applies if:

(a)      the Registrar is required by section 49 or 50 to determine a responsible person's                 percentage of care for a child during a care period; and

(b)      a care arrangement applies in relation to the child; and

(c)      the Registrar is satisfied that the actual care of the child that the responsible                     person has had, or is likely to have, during the care period does not comply with   the extent of care of the child that the person should have had, or is to have,   under the care arrangement during that period (which may be nil); and

(d)      a person who has reduced care of the child is taking reasonable action to ensure   that the care arrangement is complied with.

Note:          This section does not apply in certain circumstances: see section 53.

2 percentages of care in relation to the responsible person

(2)  Subject to subsection (5), the Registrar must determine, under section 49 or 50, 2      percentages of care in relation to the responsible person.

(3)  The first percentage of care is to be a percentage that corresponds with the extent of care of      the child that the responsible person should have had, or is to have, under the care arrangement        during the care period (which may be nil).

(4)  The second percentage of care is to be:

(a)      for a determination under section 49--0%; or

(b) for a determination under section 50--a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.

. . .

15. Because there has been a change of care and that change will affect the rate of payment of child support the Registrar is required under section 50 of the Act to determine care percentages, thus satisfying paragraph 51(1)(a) of the Act. The Tribunal finds that there are court orders dated 29 October 2014 and that these orders provide that Ms Luxton will have 61% care and Mr Lakin will have 39% care of [Child 1], thus satisfying paragraph 51(1)(b) of the Act. The Tribunal finds that with effect from 15 December 2017 the court orders were not being complied with, thus satisfying paragraph 51(1)(c) of the Act. The Tribunal finds that Mr Lakin has taken reasonable action to have the care arrangement complied with, thus satisfying paragraph 51(1)(d) of the Act. The Tribunal is thus required by subsections 51(2), (3) and (4) of the Act to determine two percentages. In respect of Mr Lakin the first percentage is 39% while the second percentage is 0%.

16. Section 53A of the Act provides that the first percentage determined under subsection 51(3) of the Act is to be applied to the child support assessment for an interim period. Under sub-paragraph 53A(1)(a)(i) of the Act the interim period commences on the change of care day and under the table provided in section 53A of the Act the interim period in this case ends 14 weeks later. The second percentage determined under subsection 51(4) of the Act applies to the period following the end of the 14 week interim period. However in this case care in accordance with the care arrangement resumed on 2 February 2018, which is less than 14 weeks after the commencement of the interim period. For that reason the interim period is shortened and the percentages that apply in respect of the care arrangement are used in the care assessment following the end of the interim period.

17. The Tribunal finds that Mr Lakin ceased to have care of [Child 1] from 15 December 2017 but that an interim determination must be made under section 51 of the Act. That interim determination means that the child support assessment will continue to be based on Ms Luxton having 61% care and Mr Lakin having 39% care of [Child 1] from 15 December 2017 until care in accordance with the court orders resumed on 2 February 2018. From that date the child support assessment will be based on the court orders of 29 October 2014, which provide that Ms Luxton has 61% care and Mr Lakin has 39% care of [Child 1]. Effectively this means that the child support assessment that was in effect on 15 December 2017 will continue throughout the period under consideration by the Tribunal.

18. As this is a care percentage decision made following an objection that was lodged more than 28 days after the original decision the Tribunal is required to make a further decision under section 87AA of the RC Act. That section states:

Date of effect of objections relating to care percentage decisions that are allowed

(1)      If:

(a)      a person lodges, under section 80A, an objection to a care percentage decision;   and

(b)       the objection is lodged more than 28 days or, if the person is a resident of a   reciprocating jurisdiction, 90 days after notice of the care percentage decision   was served; and

(c)       the Registrar decides (the review decision), under section 87, to allow the   objection in a way that has the effect of varying the determination to which the   care percentage decision relates, or substituting a new determination;

the date of effect of the review decision is the day on which the person lodged the            objection.

(2)      If the Registrar is satisfied that there are special circumstances that prevented the person            from lodging the objection within the period referred to in paragraph (1)(b), the Registrar                 may determine that subsection (1) applies as if:

(a)       in a case where the person is a resident of a reciprocating jurisdiction--the   reference to 90 days in that paragraph were a reference to such longer period as   the Registrar determines to be appropriate; or

(b)       otherwise--the reference to 28 days in that paragraph were a reference to such   longer period as the Registrar determines to be appropriate.

19. Under subsection 87AA(1), because Mr Lakin did not lodge his objection to the original decision of the Department within 28 days of the decision the date of effect of the Tribunal’s decision would be the date on which he lodged his objection, that being 17 May 2018. However subsection 87AA(2) provides that if there are special circumstances that prevented a person from lodging their objection within 28 days the period for lodging the objection may be extended.

20.  The meaning of “special circumstances” in the context of social security law has been considered by this Tribunal and the courts on many occasions.  The meaning of “special circumstances” was considered by the Administrative Appeals Tribunal in Re Beadle and the Director-General of Social Security [1984] AATA 176:

An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition.  The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional.

21.  In Groth v Secretary, Department of Social Security[1995] FCA 1708 it was said that circumstances are required that distinguish an applicant’s case from others and takes it out of the usual or ordinary case. It is relevant that subsection 87AA(2) provides that, not only must special circumstances exist, a person must be prevented by them from applying within 28 days.

22.  Section 4.1.8 of the Child Support Guide states:

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:

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

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

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

·the parent reasonably relied upon inaccurate or misleading information.

If the Registrar is satisfied that special circumstances exist, the Registrar will then consider          whether it is appropriate to exercise the discretion to extend the period in which to lodge the      objection (section 87AA(2)). The Registrar will consider if:

·the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?

·the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to DHS that the decision was being contested or raised their concerns in other ways - e.g. a complaint to DHS or the Ombudsman?

23.  At the hearing Mr Lakin said that when he was contacted by the Department on 17 January 2018 he said that he disagreed with the decision and he understood that the Department would review the matter.  He said that following that conversation he thought that the review process was underway.  He said that this seemed to be confirmed when the Department contacted him in early May to ask for evidence.  The papers before the Tribunal do not show the Department contacting Mr Lakin in early May.  However Mr Lakin provided documentation to the Department on 9 May 2018 (folios 33 to 35) and in response to the receipt of that documentation, on 17 May 2018 the Department contacted Mr Lakin.  It is apparent that this documentation was provided in support of an objection which Mr Lakin believed was under consideration by the Department. 

24.  The record of the conversation between Mr Lakin and the Department on 17 January 2018 (folio 12) could be interpreted as disclosing that Mr Lakin had indicated his intention to object, however such a conclusion is not unavoidable.  However, it does seem clear from his subsequent behaviour that Mr Lakin was proceeding on the basis that he had already lodged an objection.  The Tribunal finds that there was a simple misunderstanding between Mr Lakin and the Department.  The Tribunal finds that because of this misunderstanding Mr Lakin was effectively relying on inaccurate information and that under the circumstances it was reasonable for him to do so.

25. A decision favourable to Mr Lakin under subsection 87AA(2) of the RC Act would adversely affect Ms Luxton as it would reduce the amount of child support payable by Mr Lakin. A child support assessment based on Mr Lakin having 39% care of [Child 1] is $4,697.00 while a child support assessment based on Mr Lakin having 0% care of [Child 1] is $8,187.00. Over the course of the seven weeks for which an interim determination would apply the total difference is some $470.00. This will result in a reduction in the arrears owed by Mr Lakin rather than a debt to Ms Luxton. The Tribunal takes into account the fact that the Department has stated that during this period Mr Lakin advised the Department of his view that Ms Luxton was withholding care. From this it would appear that he did not rest on his rights but rather that he pursued the objection, albeit in the context of a mistaken belief.

26.  The Tribunal finds that there are special circumstances and that subsection 87AA(2) of the RC Act should be applied in Mr Lakin’s favour.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Luxton had 100% care during the period from 15 December 2017 to 1 February 2018 but that as a result of an interim determination the assessment will be based on Mr Lakin continuing to have 39% care and Ms Luxton continuing to have 61% care.  Those percentages will continue to apply to the assessment from 2 February 2018 as a result of the resumption of the existing care arrangement.

The Tribunal affirms the decision in relation to section 87AA of the Child Support (Registration and Collection) Act 1988.