Marson and Marson (Child support)

[2021] AATA 1001

Marson and Marson (Child support) [2021] AATA 1001 (25 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC020563

APPLICANT:  Ms Marson

OTHER PARTIES:  Child Support Registrar

Mr Marson

TRIBUNAL:Member R Anderson, Member S De Bono

DECISION DATE:  25 February 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Ms Marson is attributed with 62 percent care of [Child 3] and Mr Marson attributed with 38 percent care of [Child 3], the date of effect being 27 October 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – appropriate to consider hours of care instead of nights - new care determinations made - decision under review set aside and substituted – date of effect – no special circumstances for objecting out of 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. Ms Marson and Mr Marson are the separated parents of [Child 1], [Child 2] and [Child 3]. While the initial child support assessment commenced in respect of [Child 1] and [Child 2] in 2004, the parents later reconciled and [Child 3] was born in 2015.  Following separation in August 2020, Ms Marson lodged an initial child support assessment application in respect of [Child 3] on 16 August 2020. On 4 September 2020 Services Australia – Child Support (Child Support) accepted the application.

2. This review is only in relation to the care of [Child 3].  The assessment at 16 August 2020 was based on Mr Marson and Ms Marson’s care in respect of [Child 3] being attributed at 28% and 72% respectively.

3. On 27 October 2020, Mr Marson lodged an objection to the decision of Child Support on 4 September 2020 about care percentage attributed to him in respect of [Child 3]. On 24 December 2020, Child Support allowed the objection and determined that Mr Marson be attributed with 42% care of [Child 3] and Ms Marson with 58% care of [Child 3] from 16 August 2020. However, as Mr Marson lodged an objection to the decision of 4 September 2020 more than 28 days from the date of notification, the new percentage care decision was applied to the child support assessment from 27 October 2020.

4. On 31 December 2020 Ms Marson applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of Child Support’s decision. On 25 February 2021, Ms Marson and Mr Marson participated in a hearing by conference telephone and gave oral evidence on affirmation. The tribunal had before it a bundle of documents numbered 1 to 141 which had been sent to both parties prior to the hearing. Both parties confirmed receipt of these documents. Shortly after the hearing, the tribunal received further information from Mr Marson, numbered B1 to B2 which was sent to the parties for their information. The information had been discussed at hearing with both parties.

LAW AND CONSIDERATION

1. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The Act sets out the statutory formula for the calculation of child support.  The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer's percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

3. In accepting an application by a parent for registration of a child support assessment under section 25 of the Act, relevantly, section 50 of the Act requires the Registrar (and the tribunal on review) to determine the percentage of care a parent is likely to have during a “care period” in regard to the children of the assessment.

4. The issues for determination in this review are:

   ·What is the correct level of care to be attributed to Mr Marson and Ms Marson in respect of [Child 3]? and

   ·What is the effective date? 

Issue 1 - What is the correct level of care to be attributed to Mr Marson and Ms Marson in respect of [Child 3]?

1. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Child Support’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide), is a care period is generally a twelve month period from the day on which the actual care of a child began or changed. The same care arrangements will be assumed to apply for the subsequent twelve month period, unless otherwise advised. While the tribunal is not bound by such policy, in Drake and Minister for Immigration and Ethnic Affairs 1979 2 ALD 60 the Full 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 case the tribunal is satisfied that an appropriate care period is the 12 months commencing on 16 August 2020.

2. Child Support determined that it was appropriate to calculate the care percentages attributable to the parents based on the pattern of care in respect of the number of nights that [Child 3] was in the care of Ms Marson and Mr Marson in the care period.

3. Mr Marson has the care of [Child 3] six nights a fortnight which means that Ms Marson has the care of [Child 3] for 8 nights a fortnight. This is undisputed.  However, Ms Marson maintains that the more accurate approach is to calculate the care percentages based on the number of hours of care provided by the parents on a fortnightly basis.

4. The tribunal asked about the expectations of the pattern of care of [Child 3] from 16 August 2020. Ms Marson said that [Child 3] attends preschool from Monday through to Wednesday from 8.30am to 3.00pm daily. She does not attend preschool on Thursday’s or Friday’s. In response to a question from the tribunal, Ms Marson stated that at 16 August 2020 she was not working and so was able to care for [Child 3] when she was not at preschool.

5. The tribunal received a parenting plan after the hearing that was signed by both parents on 9 September 2020. While Mr and Ms Marson indicated that Child Support had received a copy of the parenting plan, this was not available to the tribunal during the hearing.

6. Both parties confirmed to the tribunal that the pattern of care on each fortnightly cycle was that [Child 3] would stay with Mr Marson on a Tuesday night, Thursday night and Sunday night in week one and; on Wednesday night, Friday night and Saturday night in week two. This meant that on the days that [Child 3] stayed with Mr Marson when she did not have preschool she went to Ms Marson’s home to be cared for during the day by Ms Marson. The parenting plan did not stipulate the drop off and pick up times for [Child 3] except on a Friday and Sunday. Both parties agreed that [Child 3] was picked up after preschool by either the older siblings or one of the parents and taken to the home of the parent who was caring for her overnight.   

7. Ms Marson said that on the days that [Child 3] spent the night with Mr Marson, either Mr Marson or her older siblings would drop [Child 3] off at preschool. If [Child 3] spent the night with Mr Marson on a day that she did not attend preschool, [Child 3] would stay with Ms Marson for the day from around 8.30am until collection time at 4.00pm.  This usually occurred on a Friday in week one of the fortnightly cycle and on a Thursday in week two of the fortnightly cycle. This evidence was undisputed.

8. The tribunal asked who would be contacted if [Child 3] was unwell while attending preschool and both parents said they would be contacted. However, at the times they were contacted it was generally Ms Marson who said she would pick up [Child 3] from preschool. Mr Marson said his workplace is very flexible and if he had to leave work this could be accommodated.

9. Mr Marson told the tribunal that he advised Ms Marson from the outset that he was happy to make alternative arrangements so that Ms Marson did not have to look after [Child 3] on the days she did not attend preschool and was formally still in the care of Mr Marson. Mr Marson wanted his mother or his new partner to look after [Child 3] on those days or the opportunity to take the day off work to look after [Child 3]. But neither Mr Marson nor Ms Marson were able to reach an agreement on this.  Mr Marson stated that his offer was flatly refused. It was open to Mr Marson to seek legal advice in this regard at the time.

10. The nights of care for [Child 3] in the parenting plan differed to the actual nights of care, but the number of nights of care for each parent did not change. The parenting plan shows Mr Marson had the overnight care of [Child 3] on a Wednesday in week one but the tribunal notes this was changed to Tuesdays. The tribunal accepts that this was agreed to at some stage by both parents and both Ms Marson and Mr Marson agreed this was the pattern of care for [Child 3] from 16 August 2020. They further agreed that the collection and drop off times were generally 4.00pm, noting that the parenting plan allowed for some flexibility upon agreement by both parents. Accordingly, the tribunal considers in this case that it is appropriate to consider the 24-hour care period from 4.00pm to 4.00pm each day.

19.The tribunal considered whether the regular pattern of care for [Child 3] should be calculated on nights of care or on hours of care. The Guide suggests that a pattern of care is generally based on the “number of nights”, thereby the parent attributed with a particular night is also attributed with care of the child during the same day.  Yet at 2.2.1 of the Guide, it is recognised that there may be occasions where such a means of determining the “pattern of care”  does not accurately reflect the actual care provided by the parents.  It goes on to state that, “In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.”  In this case the tribunal regards the policy as a useful guide to applying the legislation and considers it consistent with the objects of the legislation.

1. As discussed above, Ms Marson has additional care of [Child 3] from 8.30am to 4.00pm on two days of the fortnightly cycle, equating to 7.5 hours on each occasion.  The tribunal has determined that hours of care is a more accurate means of determining Ms Marson’s and Mr Marson’s percentage of care for [Child 3].

2. In reviewing the pattern of care for [Child 3] based on hours of care the tribunal has determined the following, which is undisputed by the parties:

HOURS ATTRIBUTED TO MR MARSON	HOURS ATTRIBUTED TO MS MARSON
Week 1 – 4.00pm Monday to 4.00pm Tuesday	0	24
Week 1 – 4.00pm Tuesday to 4.00pm Wednesday	24	0
Week 1 – 4.00pm Wednesday to 4.00pm Thursday	0	24
Week 1 – 4.00pm Thursday to 4.00pm Friday	16.5	7.5
Week 1 – 4.00pm Friday to 4.00pm Saturday	0	24
Week 1 – 4.00pm Saturday to 4.00pm Sunday	0	24
Week 1 – 4.00pm Sunday to 4.00pm Monday	24	0
Week 2 – 4.00pm Monday to 4.00pm Tuesday	0	24
Week 2 – 4.00pm Tuesday to 4.00pm Wednesday	0	24
Week 2 – 4.00pm Wednesday to 4.00pm Thursday	16.5	7.5
Week 2 – 4.00pm Thursday to 4.00pm Friday	0	24
Week 2 – 4.00pm Friday to 4.00pm Saturday	24	0
Week 2 – 4.00pm Saturday to 4.00pm Sunday	24	0
Week 2 – 4.00pm Sunday to 4.00pm Monday	0	24
Total hours per fortnightly cycle	129	207

1. Consequently, based on the rounding provisions under section 54D of the Act, the tribunal calculates that 129 nights attributed to Mr Marson and 207 nights attributed to Ms Marson equates to 38% (129/336) and 62% (209/336) respectively. The tribunal finds accordingly.

2. Ms Marson and Mr Marson told the tribunal that court orders have been in place since December 2020 but Child Support did not provide a copy of these to the tribunal nor inform the tribunal that a new care determination had been made. As discussed at hearing, any changes to the pattern of care are required to be notified to Child Support in a timely manner by the parents to enable a new care decision to be made, if appropriate.

Issue 2 - What is the effective date ?

1. Subsection 43(1) of the Administrative Appeals Act 1975 (AAT Act) provides relevantly, that the tribunal may set aside a decision under review, while subsection 43(6) of the AAT Act provides that the tribunal’s decision has effect “on and from the day on which the decision under review has or had effect.” Therefore, in this case, it means that the tribunal is required to consider section 87AA of the Registration Act, as did the objections officer.

2. Section 87AA of the Registration Act applies when an objection is lodged more 28 days after notice of the care percentage decision was served and the objection is allowed in full or in part. In this matter an original decision was made on 4 September 2020 and the objection was lodged more than 28 days later on 27 October 2020. Consequently, subsection 87AA(1) of the Registration Act provides that the date of effect of the review decision is the day on which the person lodges the objection, being 27 October 2020.

3. However, subsection 87AA(2) of the Registration Act provides that if the Registrar (or the tribunal on review) is satisfied that there are special circumstances that prevented the person from lodging the objection within 28 days, then the decision-maker has discretion as to whether to extend the period in which to lodge the objection, in order for the objection decision to have effect from an earlier date.

4. Section 87AA of the Registration Act was introduced as an amendment Bill in 2010 ((Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010)) (the Bill). The Registration Act does not define “special circumstances”. However, the Bill explains that subsection 87AA(2) is intended to provide some flexibility for unusual cases. Elsewhere in the Bill the phrase “special circumstances” is explained by reference to a judgment from the AAT where in Re Beadle and Director-General of Social Security [1984] AATA 176 Judge Toohey (presiding) said:

   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. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

5. The Full Federal Court in the case of Dranichnikov v Centrelink [2003] FCAFC 133 also determined that whether there are special circumstances in a particular case depends on whether there are circumstances that are unusual, that would distinguish the case from the usual case.

6. The Guide also contains guidelines at chapter 4.1.8 in regard to special circumstances in the context of subsection 87AA(2). It states that the circumstances preventing timely lodgement of the objection must be “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”. Examples given include the following:

   ·      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 and

   ·      the parent reasonably relied upon inaccurate or misleading information.

7. The tribunal asked Mr Marson if there were special circumstances which prevented him from lodging an objection at an earlier date. Mr Marson said he confirmed the original care percentages advised to Child Support by Ms Marson on 16 August 2020 of 28% to him because he simply accepted that this was correct. He said he was not coping well at the time and did not have any reason to doubt it. He said it did not become clear to him that the care percentage was much less for [Child 3] than [Child 1], despite caring for them both for the same number of nights per fortnight, until he received the assessment notice from Child Support, dated 20 October 2020.  The assessment notice recorded his care of [Child 3] at 28% and care of [Child 1] at 43%. It was then he realised that the care percentage attributed to him for [Child 3] may have been incorrect and contacted Child Support.

8. The tribunal carefully considered Mr Marson’s reasons for not lodging his objection within 28 days of notification of the decision of 4 September 2020. Mr Marson was given the opportunity from the outset to seek clarification of the care asserted by Ms Marson and chose to accept it.  While the tribunal appreciates that following separation the parents had many pressing issues to deal with, it also concludes that there was a degree of complacency in Mr Marson not taking further notice of the care percentages put to him by Child Support on 1 September 2020.

9. On balance, the tribunal finds that special circumstances do not exist which prevented Mr Marson from lodging his objection within 28 days of notification of the initial assessment. Therefore, as the tribunal is satisfied that the date of effect was correctly based upon subsection 87AA(1) of the Registration Act, this is also the date of effect of the tribunal’s decision, being the date upon which Mr Marson lodged the objection. The tribunal finds that the date of effect is 27 October 2020.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Ms Marson is attributed with 62 percent care of [Child 3] and Mr Marson attributed with 38 percent care of [Child 3], the date of effect being 27 October 2020.