Maurizio and Hatzantonis (Child support)

Maurizio and Hatzantonis (Child support) [2024] AATA 2896 (20 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2024/MC027381 & 2024/MC027410
APPLICANT:  Mr Maurizio
OTHER PARTIES:  Child Support Registrar
Ms Hatzantonis

TRIBUNAL:Member J Thomson
DECISION DATE: 20 June 2024
DECISIONS:

2024/MC027381

The Tribunal sets aside the decision under review and, in substitution, decides that in relation to the children there was:

· no change in care on 30 July 2021 and the pre-existing care determinations of 42% to Mr Maurizio and 58% to Ms Hatzantonis continue to apply; and
· from 24 June 2022 new care determinations of 46% to Mr Maurizio and 54% to Ms Hatzantonis apply.

2024/MC027410

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to pattern of care – earlier overseas holidays with mother not permanent changes to existing care patterns – father’s travel and care during mother’s study placement one-off events – later holidays and camping trips have the nature of permanent change – no accurate contemporaneous records – decision under review set aside and substituted
CHILD SUPPORT – mother’s late objection to refusal decision – advice from Child Support – departmental procedural irregularities and anomalies – no challenge by father – decision under review affirmed

REASONS FOR DECISION

BACKGROUND

Mr Maurizio and Ms Hatzantonis are the parents of [Child 1], born 2015, and [Child 2], born 2018, (the Children).
Mr Maurizio seeks review of an objection decision made on 13 January 2024 by Services Australia (Child Support). This decision allowed Ms Hatzantonis’ objection to an earlier decision by Child Support dated 29 September 2022 and deciding to reflect the care of [the children] as 64% to Ms Hatzantonis and 36% to Mr Maurizio from 24 June 2022 and 61% to Ms Hatzantonis and 39% to Mr Maurizio from 30 July 2021.
The original Child Support decision of 29 September 2022 related to care changes on 1 January 2019 and 24 June 2022. Although the objection decision reviewed slightly different care change dates, because there was a separate original decision made in relation to a change in care for the children on 30 July 2021, as appears from the Reasons set out below, and although the objection decision focussed primarily on the care change on 24 June 2022, and to a lesser extent on the care change on 30 July 2021, the Tribunal finds there is jurisdiction to deal with both care changes.
The Tribunal heard the matter initially on 9 April 2024 and held a further hearing on 20 June 2024. Both parents attended the hearings via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 525), admitted into evidence and marked Exhibit 1. Both parents had copies of these documents with them at the hearing.
Mr Maurizio provided, post hearing, a sealed copy of further Federal Circuit Court of Australia consent orders made at [Suburb] by [a Judicial Registrar] on 30 April 2024. As these court orders relate to a later care period outside the care periods under consideration in the objection decision under review, the court orders are not relevant to the matter before the Tribunal for determination.

ISSUES

The issues which arise in this case are:
· Has there been a change in the pattern of care for [the children], from 30 July 2021 or 24 June 2022, which requires the existing percentages of care to be revoked and a new percentage determination made? And if so;
· From what date should the new percentage of care determination apply?

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documents contained in Exhibit 1 before the Tribunal at the hearing.

Application 2024/MC027381

The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.
To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care being had or likely to be had by the parents by reference to an appropriate care period. Child Support generally considers a period of approximately 12 months to be appropriate. However, a longer period may be considered, depending on the circumstances of the particular case. For the Reasons set out below, the Tribunal will consider the parents’ care pattern during the period 24 June 2022 to 29 July 2023.
Ms Hatzantonis gave evidence at the hearing that she notified Child Support on 19 July 2022 of a change in care for the children which she said occurred on 24 June 2022 when she took the children for a holiday in [Country 1] from 26 June 2022 to 15 July 2022. She also made reference in her recorded notification to having taken the children to [Country 1] for holidays in 2018 and 2019, but conceded in her evidence to the Tribunal on 20 June 2024 that the determination she was seeking from the Tribunal related to the change in care consequent upon the [Country 1] holidays taken from 24 June–15 July 2022 and in July 2023.
On 10 August 2022 Ms Hatzantonis contacted Child Support to enquire as to the progress of her change in care notification on 19 July 2022. The discussions she had with Child Support were recorded in the file note appearing at page 199 of Exhibit 1 and reflect the Child Support officer with whom she spoke intimating to her that Mr Maurizio had disagreed with the change in care event on 24 June 2022 she had nominated in her initial change in care notification on 19 July 2022.
Relevantly, the Child Support file note records Ms Hatzantonis informing Child Support that her overseas trips to [Country 1] with the children (presumably the trips in 2018 and 2019 referred to above) had ceased as a consequence of the COVID-19 pandemic but had resumed in June 2022.
The Tribunal finds that, as these holiday trips did not recur after the 2019 holiday trip because of the intrusion of the COVID-19 pandemic, Ms Hatzantonis’ evidence suggests they were not of a permanent nature and essentially “one-off” occurrences. The Child Support note reflects she was informing Child Support of previous holiday events and there is no evidence she was notifying any change in care relative to those holidays.
In response to her enquiry as to whether she should provide evidence in support of the earlier 2018 and 2019 [Country 1] holidays, the file note records Child Support suggesting she confine her evidence to the most recent [Country 1] holiday trip, that being the 24 June 2022 to 15 July 2022 trip, the subject of the change in care notification on 19 July 2022 referred to above.
On this occasion, she also notified anticipated changes in the parent’s pre-existing care arrangements due to her intention to take the children on pre-booked camping holidays from 22 January 2023 to 28 January 2023, and a further planned holiday in [Country 1] which subsequently occurred from 16 July 2023 to 29 August 2023.
Child Support initially refused Ms Hatzantonis’ care change on 24 June 2022, notified on 19 July 2022. This initial care determination also purported to deal with a care change on 1 January 2019, notified on 10 August 2022 (see care decision at pages 237 to 239 of Exhibit 1).
Ms Hatzantonis’ notification on 19 July 2022 makes no reference to any change in care notification on 1 January 2019, and the only evidence before the Tribunal of any other change in the parents’ pre-existing care arrangements on 10 August 2022 is the mention by Ms Hatzantonis of the 2018 and 2019 [Country 1] holiday trips recorded in the Child Support file note of that date at page 199 of Exhibit 1, which does not appear to have been registered as a pending change in care notification.
As noted in the background summary above, the objections officer made 2 care percentage determinations regarding the children:
· with respect to the care change notification of 19 July 2022 occurring on 24 June 2022, determining care percentages of 64% to Ms Hatzantonis and 36% to Mr Maurizio from 24 June 2022; and
· with respect to another care change the notification date for which does not appear in either the original decision of 29 September 2022 or the objection decision, effective from 30 July 2021, determining care percentages of 61% to Ms Hatzantonis and 39% to Mr Maurizio from 30 July 2021.
The references in Exhibit 1 to a change in care event on 30 July 2021 appear at pages154 to 192 of Exhibit 1 and relate to a change in care notification on 27 July 2021 of a change in care on 26 July 2021 accepted by Child Support in its decision dated 10 September 2021(see pages154 to 171 of Exhibit 1) recording care percentages of 58% to Ms Hatzantonis (equating to 209 nights of care per year) and 42% care to Mr Maurizio (equating to 156 nights of care per year).
A further Child Support file note at page176 of Exhibit 1 dated 2 March 2022 records a notification of a change in care by Ms Hatzantonis in which she appears to reiterate the care percentages of 42% to Mr Maurizio and 58% to her, asserting there had been no change in the care equating to those care percentages, but referring to instances involving Mr Maurizio and her father (who was living with Mr Maurizio at the time) having blocks of care when she was on [placement] as part of the [subject] degree she was pursuing at that time and camping holidays she and the children had, presumably in December/January 2021/22.
Mr Maurizio in his response, recorded at page 180 of Exhibit 1, denied any change in care as asserted by Ms Hatzantonis had occurred on 30 July 2021 and asserted the care arrangements the parents were having were consistent with the care percentages of 58% (209 nights) to Ms Hatzantonis and 42% to him (156 nights).
As recorded at page 181 of Exhibit 1, Child Support rejected Ms Hatzantonis’ change in care notification in its decision of 2 March 2022.
The objection decision set aside the original Child Support decision of 2 March 2022, determining instead, the care percentages Ms Hatzantonis contended for in her notification on 2 March 2022 of 61% to her (221 nights of care) and 39% to Mr Maurizio (144 nights of care), but did not set out the reasoning behind this decision.
This anomaly was discussed with the parents at the hearing on 20 June 2024. Both parents acknowledged and agreed at the hearing on that date that the objection officer’s decision regarding the change in care determination referred to in the second bullet point in paragraph 16 above was not the primary focus of their dispute.
Both parents acknowledged and agreed that the determination they were seeking from the Tribunal on review related solely to the change in care on 24 June 2022 notified by Ms Hatzantonis on 19 July 2022.
However, the Tribunal considers it also has jurisdiction to deal with the objections officer’s determination of the change in care on 30 July 2021.
The Tribunal finds the instances to which Ms Hatzantonis refers in her notification of 2 March 2022 regarding the blocks of care of the children Mr Maurizio had in conjunction with Ms Hatzantonis’ father while she was on [placement] and the holiday care she had were ‘one-off’ events and not in the nature of permanent changes in the regular pre-existing care patterns of the parents at that time. Accordingly, the Tribunal finds there was no change in the care of the children on 30 July 2021 and accordingly, the pre-existing care percentages of 58% to Ms Hatzantonis and 42% to Mr Maurizio continue to apply.
The care percentages being assessed by Child Support prior to Ms Hatzantonis’ notification on 19 July 2022 were 58% to Ms Hatzantonis and 42% to Mr Maurizio, determined by Child Support in its decision on 10 September 2021, effective in the assessment from 26 July 2021 (see pages 154 to 159 of Exhibit 1).
Neither parent provided any evidence at the hearings on 9 April 2024 or 20 June 2024 as to their respective care patterns occurring prior to and following a care change on 30 July 2021. At the hearings, both acknowledged and agreed they had not maintained accurate contemporaneous records of their care arrangements during this period and had not done so until Mr Maurizio commenced recording his care in the calendar records he provided from January 2022 referred to below in these reasons, reflecting the care pattern of 6 nights per fortnight throughout the year, equating to 42% care to him and 58% to Ms Hatzantonis.
In responding to Ms Hatzantonis’ objection to Child Support’s original decision of 29 September 2022, Mr Maurizio provided a care calendar for the 2022 and 2023 years at page 358 of Exhibit 1 and in evidence he gave to the Child Support officer in the course of a telephone interview on 30 August 2023, recorded in Child Support’s file note of that date (see pages 277 and 278 of Exhibit 1), he identified his care pattern (recorded in his care calendar) as 6 nights of care per fortnight (Wednesday and Thursday nights in week 1, and Wednesday to Saturday nights in week 2) or 156 nights of care throughout the year, equating to 42% care (26 x 6 = 156/365 x 100 = 42.73% rounded down pursuant to section 54D of the Act to 42%).
Ms Hatzantonis’ corresponding pre-existing care percentage would therefore be 58% (26 x 8 =208/365 x 100 = 56.9%, actually recorded by Child Support as 58% from 26 July 2021 and in accordance with the care percentages determined by Child Support in its decision of 10 September 2021 (see pages 154 to 177 of Exhibit 1)).
Ms Hatzantonis acknowledged and agreed in the course of discussions with the Tribunal during the hearings on 9 April 2024 and 20 June 2024 that she had not maintained a contemporaneous record of the parents’ care patterns and the only records she could offer were the yearly planner calendars she provided at pages 200 to 201 and 385 to 387 of Exhibit 1, which the Tribunal finds incomprehensible and unhelpful in determining any identifiable care pattern.
Mr Maurizio’s evidence at the hearing focussed on the care pattern identified in his care calendar at page 358, reflecting care percentages of 42% or 156 nights of care per annum to him and 58% or 209 nights of care to Ms Hatzantonis, which he submitted had not changed from 24 June 2022.
His evidence regarding Ms Hatzantonis’ care change notification on 19 July 2022 and the prior 2018 and 2019 periods when she took the children to [Country 1] for holidays centred on his submission that any care changes in these periods were of a ‘one-off’ nature, essentially non-permanent, temporary changes in the parents’ care arrangements of 6 nights per fortnight, equating to the care percentages of 42% to him and 58% to Ms Hatzantonis, as set out in his evidence above.
Ms Hatzantonis’ evidence at the hearing focussed on the care changes commencing with the [Country 1] holiday from 26 June 2022 to 15 July 2022, followed by the pre-booked anticipated camping holiday she said she intended taking with the children from 22 January to 28 January 2023, and the further holiday she had planned with the children in [Country 1] from 16 July 2023 to 29 August 2023.
At the hearing, she acknowledged and agreed that care calendars provided by Mr Maurizio reflecting his pre-existing care pattern and, correspondingly, Ms Hatzantonis’ care pattern for the 2022 and 2023 years at page 358 of Exhibit 1 were largely a correct reflection of the parents’ care patterns for 2022 and part of 2023 and that the Tribunal could determine her nights of care from that calendar record, give or take up to approximately 6 nights of care, which she conceded in her evidence on 20 June 2024 would not have any material effect on the resultant care percentage determination.
Mr Maurizio’s remaining issues were directed to Ms Hatzantonis’ insistence that his periodic travel to [Country 2] and her holidays to [Country 1] and summer holiday camping trips be recognised as minor, non-permanent departures from the pre-existing care pattern on which the percentages of 42% to him and 58% to Ms Hatzantonis were based, and additional nights of care due to him consequent upon him agreeing to have care of the children while Ms Hatzantonis was engaged in her compulsory in-hospital placement/training sessions as part of her [subject] degree course from15 November 2022 to 26 November 2022. He also raised the issue of his having his normal weekly Wednesday to Saturday nights care pattern from 25 to 28 January 2023 during the course of Ms Hatzantonis’ pre-arranged camping holiday from 22 January 2023 to 28 January 2023, for which he said he travelled from Melbourne to Ms Hatzantonis’ holiday camp site for his care period with the children, with Ms Hatzantonis’ approval.
Mr Maurizio submitted that his travel to [Country 2] was not a regularly occurring annual event and should therefore be recognised as a ‘on-off ‘occurrence rather than a permanent departure from his normal 6 nights per fortnight care pattern. The Tribunal finds there is no substantive evidence that Mr Maurizio undertook the alleged [Country 2] travel on other than a casual basis and accordingly, finds any such travel would be of a non-permanent ‘one-off’ nature and not reckoned as a permanent departure from his regular 6 nights per fortnight care pattern.
The Tribunal also finds Mr Maurizio’s care of the children to accommodate Ms Hatzantonis’ [occupation] training/placement session in November 2022 should be regarded as a ‘one-off’ event and not reckoned as a permanent departure from the parent’s pre-existing care pattern.
However, the evidence regarding the [Country 1] holidays and the summer holiday camping trips in 2022 and 2023, identified by Ms Hatzantonis in her evidence at the hearing, do have the nature of a permanent change in the parents’ care pattern, particularly so when Mr Maurizio acknowledged at the hearing that he did not object to her taking the children to [Country 1] for approximately 20 days in June/July 2022 and again when she took the children on holiday to [Country 1] for approximately 45 days from 16 July 2023 to 29 August 2023. He also acknowledged and agreed at the hearing that he did not oppose her summer holiday care arrangements in the 2022 and 2023 years.
On 30 July 2023, Child Support made new care percentage determinations for both children of 86% to Ms Hatzantonis and 14% to Mr Maurizio, effective in the assessment from 30 July 2023 (see page 483 of Exhibit 1). That decision is not before the Tribunal and carries its own objection and review rights.
The Tribunal will therefore determine care percentages for the parents for the care period 24 June 2022 to 29 July 2023, based on the actual care taking place as reflected in the care calendar provided by Mr Maurizio at page 356 of Exhibit 1, accepted by Ms Hatzantonis in her evidence at the hearing as largely reflective of his care pattern for the 2022 and 2023 years, adjusted, where necessary, to take into account Ms Hatzantonis’ [Country 1] holidays and camping trips and Mr Maurizio’s 4 days of care from 25 to 28 January 2023 referred to in the evidence set out above.
The Tribunal finds Mr Maurizio’s calendar at page 358 reflects an adjusted total of 185 nights of care (allowing 6 nights of care to accommodate Ms Hatzantonis’ variation to Mr Maurizio’s recorded nights of care) over a period of 401 nights from 24 June 2022 to 29 July 2023, equating to 46% care (185/401 x 100 = 46.13%, rounded down pursuant to section 54D of the Act to 46%).

The pre-existing care percentages for the children prior to Ms Hatzantonis’ change in care notification on 19 July 2022 were 42% to Mr Maurizio and 58% to Ms Hatzantonis. As noted above, based on Mr Maurizio’s care calendar at page 358 of Exhibit 1, the Tribunal has determined care percentages of 46% to Mr Maurizio and 54% to Ms Hatzantonis.
The cost percentages equating to the new care percentages of 46% to Mr Maurizio and 54% to Ms Hatzantonis will change from 39% to Mr Maurizio to 47% and from 61% to 54% for Ms Hatzantonis.
As the cost percentages for the parents will change in light of the Tribunal’s new care determinations set out above, pursuant to section 54F of the Act, the Tribunal must revoke the pre-existing care percentages of 58% to Ms Hatzantonis and 42% to Mr Maurizio on 23 June 2022 and new care percentages of 46% to Mr Maurizio and 54% to Ms Hatzantonis apply from 24 June 2022.The Tribunal finds Ms Hatzantonis’ notification of the change in care on 24 June 2022 was made on 19 July 2022, within 28 days of the change in care date.
As the Tribunal has reached a different conclusion to that reached by the objections officer in the decision under review, the Tribunal sets aside that decision and, in substitution, decides that there was no change in care on 30 July 2021 and that new care determinations of 46% to Mr Maurizio and 54% to Ms Hatzantonis should apply in the assessment from 24 June 2022.

Application 2024/MC027410

Ms Hatzantonis lodged her objection to Child Support’s 29 September 2022 decision refusing her change in care notification of 19 July 2022 from 24 June 2022 on 1 November 2023, outside the statutory period of 28 days from notification (see page 303 to 307 of Exhibit 1).
At the hearings on 9 April 2024 and 20 June 2024, she gave evidence that she received Child Support’s letter of 29 September 2022 notifying her of its original change in care decision of 29 September 2022 but did not lodge her objection within the statutory period of 28 days from receipt of that letter because she had been advised by Child Support, shortly after notifying the change in care of the children on 19 July 2022, consequent upon her taking them to [Country 1] on 24 June 2022 until 15 July 2022, that her notification was unlikely to be accepted because she would need to wait until she had evidence of the holiday trip to [Country 1] in the 2023 year to establish a clear change in the parents’ pre-existing care patterns, and that she would be able to challenge Child Support’s rejection of her change in care notification following her successful completion of her anticipated 2023 trip to [Country 1], which took place from 16 July 2023 to 29 August 2023.
Based on that advice, she said she deferred lodgement of her objection to Child Support’s 29 September 2022 rejection of her change in care notification on 19 July 2022 until 1 November 2023 following her successful completion of the July/August 2023 [Country 1] holiday trip.
Ms Hatzantonis gave evidence that she had further discussions with Child Support regarding the advice she had received to defer objection to the 29 September 2022 rejection of her change in care notification and had received an acknowledgement from Child Support that its advice to defer lodging her objection as set out above was incorrect together with an apology for any inconvenience caused to her but was not able to provide any written evidence to support her evidence in this regard.
After some discussion with Mr Maurizio regarding Ms Hatzantonis’ evidence as to her reasons for her late lodgement of her objection to the original Child Support decision of 29 September 2022, he acknowledged and agreed that he had no basis for challenging Ms Hatzantonis’ evidence.
As reflected in the Reasons set out above, this matter has been fraught with departmental procedural irregularities and anomalies. In the circumstances, the Tribunal finds, pursuant to paragraph 87AA(2)(b) of the Child Support (Registration and Collection) Act 1988, (the Registration Act), there were special circumstances which prevented Ms Hatzantonis lodging her objection within the statutory 28-day period. The Tribunal therefore affirms the decision under review.

DECISION

2024/MC027381

The Tribunal sets aside the decision under review and, in substitution, decides that in relation to the children there was:

· no change in care on 30 July 2021 and the pre-existing care determinations of 42% to Mr Maurizio and 58% to Ms Hatzantonis continue to apply; and
· from 24 June 2022 new care determinations of 46% to Mr Maurizio and 54% to Ms Hatzantonis apply.

2024/MC027410

The decision under review is affirmed.

[2024] AATA 2896

20 June 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Procedural Fairness

Judicial Review

Statutory Construction

Appeal