Marler and Marler (Child support)

Marler and Marler (Child support) [2023] AATA 4282 (20 November 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC026493
APPLICANT:  Mr Marler
OTHER PARTIES:  Child Support Registrar
Ms Marler

TRIBUNAL:Member S Irvine
DECISION DATE: 20 November 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determinations in relation to [Child 1] are revoked on 27 October 2022, and replaced with the following determinations:

From 28 October 2022, [Mr Marler’s] care percentage for [Child 1] is 65% and [Ms Marler’s] care percentage for [Child 1] is 35%.
From 1 February 2023, [Mr Marler’s] care percentage for [Child 1] is 93% and [Ms Marler’s] care percentage for [Child 1] is 7%.

Pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1989, the 28-day period in which to lodge an objection is extended so that [Mr Marler’s] objection is made within that period. This means the Tribunal’s decision has effect from 28 October 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 – special circumstances exist – tribunal decides to make a determination under section 87AA(2)

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

[Mr Marler] and [Ms Marler] are the parents of three children, for whom a child support assessment has applied since 9 October 2018. This review is in relation to the care percentage decisions for their son [Child 1], born in 2009.
Prior to the decision under review, the care percentages that applied in the child support assessment for [Child 1] were 100% to [Ms Marler] and 0% to [Mr Marler].
According to the information provided by Services Australia – Child Support (Child Support), [Mr Marler] contacted Child Support on 2 November 2022, and advised that there had been a change in the care arrangements for [Child 1]. On 11 February 2023 Child Support made new care determinations, deciding that [Mr Marler] had 65% care and [Ms Marler] had 35% care of [Child 1] from that date.
Child Support recorded that an objection to that decision from [Mr Marler] was lodged on 16 May 2023. The objection was dismissed by an objections officer in Child Support on 21 July 2023.
On 28 July 2023 [Mr Marler] made an application to this Tribunal for a review of Child Support’s decision. A hearing was held on 20 November 2023, and [Mr Marler] and [Ms Marler] both attended by telephone. [Mr Marler] gave his evidence under affirmation and [Ms Marler] gave her evidence under oath. The Tribunal also had regard to documents lodged by the Child Support Registrar, numbered from 1 to 304.

ISSUES

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 Registration Act).
The issues arising in this case are:
· Whether the existing care percentage determinations for [Child 1] should be revoked, and if so what new care determinations should be made; and
· In the event that the Tribunal varies or sets aside the decision made by the Child Support Registrar, from what date the Tribunal’s decision should have effect.

CONSIDERATION

It is not disputed that prior to October 2022 [Child 1] was in [Ms Marler’s] 100% care.
At the hearing of this matter, [Mr Marler’s] evidence in summary was:
·He had been living some distance from where [Ms Marler] lived with the three children, but in October 2022 he moved into the area close to [Ms Marler’s] home and the children’s school. At first all three children were only staying with him once a fortnight, but a few weeks after he moved [Child 1] wanted to spend more time with him, and eventually wanted to move in permanently.
·[Mr Marler] was unsure as to dates, but said he moved house on 7 October 2022, and it was perhaps late October or early November when [Child 1] said he wanted to live with [Mr Marler]. The move happened gradually, the two parents don’t live far apart so [Child 1] just started moving his stuff across to [Mr Marler’s] house over a period of a couple of weeks. Originally [Child 1] was only staying every second weekend, then it moved to [Child 1] spending a couple of nights during the week and every second weekend with [Ms Marler] and the rest of the time with [Mr Marler]. Then eventually [Child 1] was spending most of his time with [Mr Marler] and only every second Friday night with [Ms Marler].
·The first change, to spending around 9 nights per fortnight with [Mr Marler], happened around late October or early November. The second change, to almost every night with [Mr Marler], happened around the end of December or beginning of January.
[Ms Marler’s] evidence, in summary, was:
·Initially after [Mr Marler] moved back to the area where she was living, [Child 1] started spending more time with him, but not staying overnight very often. But then he said he wanted to spend more time staying with his father.
·[Ms Marler] had been assisted by [Agency 1], and when [Child 1] started wanting to spend more time with [Mr Marler] they suggested that the parents draw up a written agreement about care. They reached an agreement for [Child 1] to spend five nights per fortnight with [Ms Marler] and the remainder of the nights with [Mr Marler] (a copy of the written agreement is at page 136 of the documents submitted by Child Support).
·The agreement was followed for a while – sometimes the actual days would change to suit the children’s activities, but the number of nights was followed. But eventually [Child 1] said he wanted to spend most of his time staying with [Mr Marler], and that started happening around mid-February 2023. Since then, [Child 1] has been with her one night per fortnight and has otherwise stayed with [Mr Marler].
·[Ms Marler] said that she notified Child Support of the change in care when it happened, probably she did that online.
In response to questions from the Tribunal [Mr Marler] said [Ms Marler] brought the agreement to him and told him he needed to sign it. The agreement was followed for a little while but not long, perhaps a month or two. After that [Child 1] wanted to stay with him so he only went to his mother every second weekend.
In relation to the date that [Child 1] moved from staying with [Ms Marler] for five or so nights per fortnight to one night per fortnight, [Ms Marler] said she did not keep any care records, but she remembers that the change happened after her birthday. When she realised it was an issue she went back over photos and activities she had done with the children. For example she is sure from the photos and other information she has that [Child 1] was with her on 1, 2, 3, 6, 7, 12, 16 and 21 January. There are other days but she doesn’t have exact records. [Mr Marler] said that he also didn’t keep direct records but he has photos that [Child 1] had taken, which show [Child 1’s] room at his house. He can tell when [Child 1] started staying full-time because he had moved a lot more stuff into his room. The photos show that happened in around January.
[Mr Marler] also submitted to Child Support a care calendar and third-party statements. The care calendar shows a mark against every day from 1 October 2022 to 18 April 2023, the day it was submitted to Child Support. [Mr Marler] explained that that was how Child Support told him to fill it out – they said that they were in contact with [Ms Marler] and they would sort out the days [Child 1] was with [Ms Marler]. [Mr Marler] also provided some third-party statements which indicate that he has 100% care of [Child 1]. Unfortunately Child Support has redacted a significant amount of information from those statements, including information that would identify who made the statements. In any event, as the information in the calendar and the statements is different from the information [Mr Marler] provided to the Tribunal in relation to how many nights [Child 1] spent in [Ms Marler’s] care, I have disregarded those documents.
Overall, the parents agree that after [Mr Marler] moved house in early October 2022, the time [Child 1] spent with [Mr Marler] increased. [Mr Marler] says this was a few weeks after he moved, and that he moved on 7 October 2022. [Ms Marler] was unsure when the first change happened, but said that the written agreement had been prepared before the change happened, in preparation for [Child 1] spending more time with [Mr Marler]. The agreement is dated 14 October 2022, but it isn’t clear if that is the date it was signed by the parents or the date it was prepared. [Mr Marler’s] evidence was that the change happened around late October or early November 2022.
In his initial notification of a care change, Child Support has recorded that [Mr Marler] reported the change happened on 1 October 2022, although he has now conceded that he must have got that date wrong as he didn’t move house until 7 October 2022. There is some evidence that there was a further care change notification where the information was that care had changed on 28 October 2022, possibly that was the care notification that [Ms Marler] said she had made after the care changed.
On the basis of the information available, I am satisfied it is likely that [Child 1’s] care was five nights per fortnight to [Ms Marler] and nine nights per fortnight to [Mr Marler] from 28 October 2022, and I find accordingly.
Both parents agreed at hearing that there was then a second change in care for [Child 1], where [Child 1] moved to a pattern of 13 nights per fortnight with [Mr Marler] and one night with [Ms Marler]. The parents did not agree as to when that change occurred – [Mr Marler] thought it was around the end of December or the beginning of January, while [Ms Marler] thought it was around mid-February. Neither parent was able to give a definite date, but [Ms Marler] was able to point to a number of specific dates in January when she had care of [Child 1], which would indicate her care in January was more than one night per fortnight.
On that basis, I am satisfied it is likely that [Child 1’s] care was one night per fortnight to [Ms Marler] and 13 nights per fortnight to [Mr Marler] from 1 February 2023, and I find accordingly.

Should the existing care determinations in relation to [Child 1] be revoked, and should new care determinations be made?

The Act provides at sections 49 and 50 that a new care determination must be made for a child in certain circumstances, including where an existing care determination is revoked.
In this case, the existing care determinations for [Child 1] were 100% to [Ms Marler] and 0% to [Mr Marler].
The provisions for revoking an existing care determination are contained in sections 54F, 54G and 54H of the Act. Relevantly in this matter, subsection 54F(1) provides that a care determination must be revoked if:
· the care of the child that is actually taking place does not correspond with a parent’s existing percentage of care for the child,
· a new care determination corresponding with the parent’s actual care would change that parent’s “cost percentage” for the child,
· section 54G does not apply, and subsection 54F(2) applies.
I am satisfied that in this matter all the elements set out in subsection 54F(1) are present, and the existing determinations must be revoked under section 54F.
A new care determination must be made under section 50 of the Act if a parent has a pattern of care for the child during a care period. The care period is “such period … as the Registrar considers appropriate having regard to all the circumstances.”
I have found that there was a change from the previous pattern of care for [Child 1] on 28 October 2022. I have found that there was a further change from the previous pattern of care for [Child 1] on 1 February 2023. I therefore consider that the appropriate care period in relation to the first care change is from 28 October 2022 to 31 January 2023. The second care change is ongoing, and so I consider the appropriate care period in relation to the second change is the period of 12 months commencing on 1 February 2023.
The percentage of care determined for each child must be a percentage that corresponds with the actual care of the child the parent has had, or is likely to have, during the care period (subsection 50(3)). The actual care may be worked out based on the number of nights the child was in the care of the parent during the care period (subsection 54A(1)).
During the period from 28 October 2022 to 31 January 2023 I have found that [Child 1] was in [Mr Marler’s] care for nine nights per fortnight, and in [Ms Marler’s] care for five nights per fortnight. I therefore find that in that period, the actual care of [Child 1] was 65% to [Mr Marler] and 35% to [Ms Marler]. As those care percentages are different to the existing percentages of care in the assessment, the existing care determinations must be revoked.
Subsection 54F(3) provides that when a care change is notified within 28 days of the change in care, the existing care determinations are revoked from the day before the change in care day. In this case I find that the change in care day is 28 October 2022, and Child Support was notified that there had been a change on 2 November 2022. The existing care percentages of 100% to [Ms Marler] and 0% to [Mr Marler] are revoked on 27 October 2022, and new care percentages of 65% to [Mr Marler] and 35% to [Ms Marler] apply from 28 October 2022.
I have found that from 1 February 2023 [Child 1] has been and is likely to be in [Mr Marler’s] care for 13 nights per fortnight, and in [Ms Marler’s] care for one night per fortnight. I therefore find that from 1 February 2023 the actual care of [Child 1] is 93% to [Mr Marler] and 7% to [Ms Marler]. As those care percentages are different from the percentages to be used in the previous period, those percentages must also be revoked. I find that Child Support was provided with further information as to [Child 1’s] care on 10 February 2023 when [Mr Marler] again advised Child Support that [Child 1] lives with him. As this was within 28 days of the change on 1 February 2023, the care percentages of 65% to [Mr Marler] and 35% to [Ms Marler] are revoked on 31 January 2023, and new care percentages of 93% to [Mr Marler] and 7% to [Ms Marler] apply from 1 February 2023.

From what date does the Tribunal’s decision have effect?

Section 87AA of the Registration Act provides that if a person lodges an objection to a care percentage decision more than 28 days after they are served with a notice of a care percentage decision, then any objection decision that changes the original decision is taken to have had effect from the day the person lodged the objection.
Subsection 87AA(2) of the Registration Act provides that the Child Support Registrar may make a determination extending the 28-day period to such longer period as the Registrar determines to be appropriate if there are special circumstances that prevented the objection being lodged within 28 days.
While section 87AA refers to a decision being made by the Child Support Registrar, the Tribunal is empowered, for the purpose of reviewing a decision, to exercise all the powers and discretions that are available to the person who made the decision (pursuant to subsection 43(1) of the Administrative Appeals Tribunal Act 1975). The power to make a determination under section 87AA is a power that would have been available to the objections officer in Child Support, had the objection been allowed. As the effect of my decision is to allow the objection, I am therefore able to exercise that power for the purpose of reviewing the decision. I therefore considered whether a determination under subsection 87AA(2) should be made.
[Mr Marler], according to Child Support’s records, lodged his objection on 16 May 2023. A notice of the original decision dated 11 February 2023 was sent to [Mr Marler] through the post, and so according to law would be presumed to have been received by him by approximately the end of February 2023. [Mr Marler’s] objection was therefore lodged more than 28 days after the day he received notice of the decision.
The documents provided by Child Support indicate that [Mr Marler] initially contacted Child Support about the care decision on 24 February 2023. The record of that discussion, which appears at page 107 of the documents submitted by Child Support, says clearly that [Mr Marler] advised Child Support that he considered the care decision to be incorrect. While the record indicates that [Mr Marler] was told “they are not lodging an objection during this call”, there is no indication that [Mr Marler] was told what that meant, or advised of any time frame for “lodging” his objection. The document says clearly that “The customer advised they intend to proceed with the objection process.”
[Mr Marler] then provided evidence relevant to his objection on 11 April 2023 and 18 April 2023 and phoned again about the care decision and provided more documentary evidence on 2 May 2023, before Child Support eventually took a formal objection from him on 16 May 2023.
On the basis of the information available I find that [Mr Marler] reasonably believed that he had done what he needed to do to object to the decision, beginning with his phone call on 24 February 2023, which was well within the period of 28 days from the day he was notified of the decision. Either his contact on 24 February 2023 was an objection, or it should have been recognised as an objection by Child Support. On that basis, I find that special circumstances prevented [Mr Marler] from lodging his application within 28 days, and the 28-day period in which to lodge an objection is extended so that [Mr Marler’s] objection is made within that period.

DECISION

From 28 October 2022, [Mr Marler’s]care percentage for [Child 1] is 65% and [Ms Marler’s] care percentage for [Child 1] is 35%.
From 1 February 2023 [Mr Marler’s] care percentage for [Child 1] is 93% and [Ms Marler’s] care percentage for [Child 1] is 7%.

[2023] AATA 4282

20 November 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies