Mackall and Mackall (Child support)

[2022] AATA 3969

Mackall and Mackall (Child support) [2022] AATA 3969 (19 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024250

APPLICANT:  Mr Mackall

OTHER PARTIES:  Child Support Registrar

Ms Mackall

TRIBUNAL:Member M Baulch

DECISION DATE:  19 September 2022

DECISION:

The tribunal set aside the decisions under review and, in substitution, decided:

• That the percentages of care applying in the child support assessment are to record:

  o    Mr Mackall as having 37% care of [Child 1] and 41% care of [Child 2] with effect from 1 January 2021;

  o    Ms Mackall as having 63% care of [Child 1] and 59% care of [Child 2] with effect from 1 January 2021;

  o    Mr Mackall as having 38% care of [Child 2] with effect from 24 January 2022; and

  o    Ms Mackall as having 62% care of [Child 2] with effect from 27 February 2022; and

• Pursuant to subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988, the date of effect of this decision is 17 April 2022.

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 – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – 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

1. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care. 

2. Mr Mackall and Ms Mackall are the separated parents of [Child 1] and [Child 2].  Since 29 June 2015 Mr Mackall has been assessed as liable to pay child support to Ms Mackall by Services Australia – Child Support (Child Support). 

3. On 19 January 2021, Mr Mackall advised Child Support that there had been a change in the pattern of care for [Child 1] and [Child 2] since 1 January 2021.

4. On 4 February 2021, that information was considered by Child Support and it was decided that the care percentages applying in the child support assessment should record Mr Mackall as having 44% care of [Child 1] and [Child 2] and Ms Mackall as having 56% care from 1 January 2021.

5. On 17 April 2022, Ms Mackall objected to that decision and, on 1 July 2022, that objection was allowed.  The objections officer decided that Mr Mackall should be recorded as having 37% care of [Child 1] and [Child 2] and Ms Mackall as having 63% care.  It was accepted that special circumstances had prevented Ms Mackall from objecting to the decision of 4 February 2021 within 28 days, so the objections officer’s decision applied from 1 January 2021 (the decisions under review).

6. Mr Mackall has now applied to this tribunal seeking an independent review of Child Support’s decisions.

7. A hearing into the application for review was held by the tribunal on 19 September 2022. Mr Mackall and Ms Mackall both discussed the application for review with the tribunal by conference telephone and both gave evidence under affirmation during the hearing. A representative of the Child Support Registrar did not participate in the hearing. The tribunal had before it relevant documents provided to it by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (198 pages), copies of which the parties confirmed they had received prior to the tribunal hearing. 

ISSUES

1. The statutory provisions relevant to this application for review are found in the Act.

2. The issue which arises in this case is what was the pattern of care applying for [Child 1] and [Child 2] from 1 January 2021?

CONSIDERATION

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their children during a care period.  Since 24 March 2020, the pattern of care that has applied to the child support assessment recorded Mr Mackall as having 39% care of [Child 1] and [Child 2] and Ms Mackall as having 61% care.

2. Care is generally calculated over a “care period”, which is a period that the Registrar, or me standing in the Registrar’s shoes, considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act).  Australian government policy in this regard, as set out in the Child Support Guide[1] at 2.2.1, is that a care period is generally a 12-month period starting from the day on which the actual care for a child changed.

   [1] Child Support Guide, Guides to Social Policy Law, Department of Social Services, version 4.64, can be found at >

   However, in this case the court order that applies in relation to the care of [Child 1] and [Child 2] requires that care for the school holidays is shared between the parents, with Mr Mackall having care for the first half of the school holidays in odd numbered years and Ms Mackall having care for the first half of the school holidays in even numbered years.  This arrangement results in one parent having more care than the other, during school holidays, each year depending on whether or not the year is an odd or even numbered year.  However, when viewed over a two-year period, each parent has the same amount of care during the school holidays.  During term times, the court order provides that Mr Mackall has care of the children five nights each alternating week and there are specific arrangements for any weekend that includes Mother’s Day or Father’s Day.

3. Given the arrangements for school holidays in the court order, I decided that the most appropriate “care period” to be considered in this particular case was the two-year period commencing on the date that care changed.  However, I will take a slightly different approach to each child, for the reasons I have detailed below.

4. During the 2021 school year, both children attended the same private school.  However, from the commencement of the 2022 school year, [Child 2] attended a public school and, as a consequence, different term dates apply.

5. Section 54A of the Act provides that the extent of care that a person is to have may be worked out on the number of nights that a child is likely to be in that person’s care in a “care period”.  While section 54A of the Act references nights of care, it does not preclude care being measured by other means.  In this case, I considered nights in care to be the most appropriate measure to determine each parents’ percentage of care.

[Child 1]

1. Having regard to the evidence, I was satisfied that during the period 1 January 2021 to 31 December 2022 there is a likely pattern of care, such that Mr Mackall will have 277 nights care (37.95%) of [Child 1] and Ms Mackall will have 453 nights care (62.05%). 

2. Applying the rules in section 54D of the Act whereby percentages less than 50 are rounded down and percentages greater than 50 are rounded up, Mr Mackall’s care percentage for [Child 1] is 37% and Ms Mackall’s percentage of care is 63%.

[Child 2]

1. [Child 2] attended [School 1] in 2021 and the pattern of care that applied is the same as for [Child 1] from 1 January 2021 until the end of the school holidays in summer 2021–2022.  From the start of the 2022 school year, [Child 2] attended a public school.  A slight difference in term dates means that the pattern of care for [Child 2] is slightly different than for [Child 1].

2. I decided that the period 1 January 2021 to 23 January 2022 (388 days) should be treated as a discrete care period in respect of which a specific pattern of care for [Child 2] should be determined.  I determined that for the period 1 January 2021 to 23 January 2022, Mr Mackall had care of [Child 2] for 162 nights and Ms Mackall for 226 nights. 

3. Applying the rounding rules in section 54D of the Act, I found that Mr Mackall had 41% care of [Child 2] from 1 January 2021 and Ms Mackall had 59% care.

4. From 24 January 2022, [Child 2] commenced attending a public school and the pattern of care changed.  Using a two-year care period, from 24 January 2022 to 23 January 2024, I considered it more likely than not that there will be a pattern of care, such that Mr Mackall has 284 nights of care for [Child 2] and Ms Mackall has 446 nights care. 

5. Applying the rounding rules in section 54D of the Act, I found that Mr Mackall had 38% care of [Child 2] from 24 January 2022 and Ms Mackall had 62% care.

Care percentage determinations

1. Subsection 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. 

2. Section 55C of the Act contains a table that is used to work out a person’s 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%

I was satisfied that Mr Mackall having 37% care of [Child 1] and 41% care of [Child 2] from 1 January 2021, and Ms Mackall 63% and 59% care, will result in a change to the cost percentages used in the child support assessment.  Therefore, the care percentage determinations for both children of 39% for Mr Mackall and 61% for Ms Mackall that had applied from 24 March 2020 must be revoked.

1. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If Child Support is advised, or otherwise becomes aware, of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care.  However, if notification occurs more than 28 days after the change in care arrangements occurs, the revocation of the care determinations takes effect for each parent as follows:

   ·      If the parent’s care of the child has increased – the day before the Registrar is notified, or otherwise becomes aware, of the change in care; or

   ·      If the parent’s care of the child has reduced – the day before the change of care occurred.

2. Mr Mackall advised Child Support about the change in the care arrangements for [Child 1] and [Child 2] on 19 January 2021 and the care arrangements changed from 1 January 2021.  This means that Ms Mackall advised Child Support about the change in the care arrangements within 28 days after they occurred.  As a consequence, the existing percentages of care for both parents are revoked from the date before the change in care occurred, being 31 December 2020.

3. As I have revoked the existing care percentage determinations that apply in respect of [Child 1] and [Child 2], I must make new care percentage determinations that reflect the pattern of care applying from 1 January 2021.  Accordingly:

   ·      Pursuant to section 50 of the Act, I determined that Mr Mackall’s percentage of care for [Child 1] is 37% and for [Child 2] is 41%.

   ·      Pursuant to section 50 of the Act, I determined that Ms Mackall’s percentage of care for [Child 1] is 63% and for [Child 2] is 59%.

   According to section 54B of the Act, the new care determinations apply from the day after the previous care determinations were revoked; that is from 1 January 2021.

4. I have found that there was a subsequent change in the pattern of care that applied for [Child 2] from 24 January 2022, such that Mr Mackall has 38% care and Ms Mackall has 62% care.  Having regard to the cost percentages set out in section 55C of the Act, I was satisfied that these percentages of care would result in a change to the cost percentages.  Therefore, the care percentage determinations that have applied for [Child 2] from 1 January 2021 (41% for Mr Mackall and 59% for Ms Mackall) must be revoked.

5. Child Support’s records show that Ms Mackall advised Child Support about the change in care on 27 February 2022, which is more than 28 days after the change in care occurred.  As a consequence:

   ·      Mr Mackall’s percentage of care for [Child 2] has reduced, so the previous care determination applying for Mr Mackall is revoked from the day before the change in care occurred; in other words, 23 January 2022; and

   ·      Ms Mackall’s care percentage for [Child 2] increased, so the previous care determination applying for Ms Mackall is revoked from the day before Child Support was notified; in other words, from 26 February 2022.

6. As I have revoked the existing care percentage determinations that apply in respect of [Child 2], I must make new care percentage determinations that reflect the pattern of care applying from 24 January 2022.  Accordingly, I found that:

   ·      Pursuant to section 50 of the Act, Mr Mackall’s percentage of care for [Child 2] is 38%.

   ·      Pursuant to section 50 of the Act, Ms Mackall’s percentage of care for [Child 2] is 62%.

   According to section 54B of the Act, the new care determinations apply from 24 January 2022 for Mr Mackall and from 27 February 2022 for Ms Mackall.

Date of effect

1. I would have allowed Ms Mackall’s objection and must consider from when this decision should take effect.

2. There is no time limit within which a person must lodge an objection against a care percentage decision. However, if the person makes their objection more than 28 days after the date the notice of the decision is served upon them, and they are successful in their objection, the objection decision has effect from the date they made their objection pursuant to subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

3. This is the case unless there are special circumstances that prevented the person from lodging the objection within 28 days, in which case the Registrar (or myself standing in the Registrar’s shoes) has the discretion to treat the reference to 28 days in subsection 87AA(1) of the Act as a reference to a longer period as determined by the Registrar, or myself, to be appropriate (subsection 87AA(2) of the Registration and Collection Act refers).

4. The decision against which Ms Mackall objected was made on 4 February 2021, and Ms Mackall made her objection on 17 April 2022.  I was satisfied that Ms Mackall objected more than 28 days after the notice of the decision made on 4 February 2021 was served upon her.

5. In this matter, the objections officer decided to make a determination under subsection 87AA(2) of the Registration and Collection Act as they were satisfied that special circumstances prevented Ms Mackall from making her objection within the prescribed time.  As a consequence, Child Support has applied the revised care percentages to the child support assessment from 1 January 2021.

6. The legislation does not define special circumstances.  For assistance, I had regard to the Child Support Guide, which describes special circumstances thus:[2]

   [2] Child Support Guide 4.1.8, Guides to Social Policy Law, the Department of Social Services, version 4.66, can be found at align="left">Special circumstances

   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 Services Australia that the decision was being contested or raised their concerns in other ways - for example, a complaint to Services Australia or the Ombudsman?

   If the Registrar makes a determination under section 87AA(2) to extend the period in which to lodge the objection, then the objection is considered to have been received within the prescribed timeframe. The objection decision will then replace the original care percentage decision from the first day that original decision had effect.

   I noted that I am not bound by policy as set out in the Guide.  However, in Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39, the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, I accepted the policy is unobjectionable and, in the interests of consistency of decision-making under the Act, considered that this policy should be applied.

7. Ms Mackall’s evidence was that she relied upon information provided to her by Child Support that she needed to contact them at the start of each year to advise of the change in the pattern of care arising from the arrangements in the court order pertaining to the school holidays.  Ms Mackall’s evidence was that she had requested that the care percentages be calculated over a two-year period, but Child Support staff advised her that they could only be calculated over a 12-month period.

8. Mr Mackall disputed that there were special circumstances present in this case and submitted that no regard has been had to the significant child support debt that has resulted from the objections officer’s decision to use 1 January 2021 as the date of effect.  I noted that the documents indicate that the decision resulted in Mr Mackall owing an extra $7,889.94 in child support as of 1 July 2022.

9. I accepted that Ms Mackall may have been misled by information provided to her by Child Support staff about how percentages of care could be calculated. This can be seen as a special circumstance weighing in favour of exercising the discretion provided for in subsection 87AA(2) of the Registration and Collection Act.

10. However, I also noted that the potential need for an objection was identified by Child Support on 2 March 2022, and Ms Mackall was sent an SMS message that same day asking her to contact Child Support.  She did not make contact with them until 4 April 2022, when she was advised that she should object to the decision of 4 February 2021, and the objection was not made immediately over the telephone (as it could have been) but was lodged on 14 April 2022.

1. It was my view that Ms Mackall rested on her rights by delaying in contacting Child Support and making her objection. I considered that this, in combination with the child support arrears caused to Mr Mackall if the date of effect is backdated, weigh more heavily against exercising the discretion provided for in subsection 87AA(2) of the Registration and Collection Act.

2. I therefore declined to make a determination under subsection 87AA(2) of the Registration and Collection Act. This means that the date from which the decision has effect is 17 April 2022.

DECISION

The tribunal set aside the decisions under review and, in substitution, decided:

• That the percentages of care applying in the child support assessment are to record:

  o    Mr Mackall having 37% care of [Child 1] and 41% care of [Child 2] from 1 January 2021;

  o    Ms Mackall as having 63% care of [Child 1] and 59% care of [Child 2] from 1 January 2021;

  o    Mr Mackall as having 38% care of [Child 2] with effect from 24 January 2022; and

  o    Ms Mackall as having 62% care of [Child 2] with effect from 27 February 2022; and

• Pursuant to subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988, the date of effect of this decision is 17 April 2022.