MBXD and Child Support Registrar (Child support second review)

[2020] AATA 2324

MBXD and Child Support Registrar (Child support second review) [2020] AATA 2324 (17 July 2020)

Division:GENERAL DIVISION

File Number:2019/6079          

Re:MBXD

APPLICANT

AndChild Support Registrar

RESPONDENT

AndCGHW

OTHER PARTY

DECISION

Tribunal:Member K. Parker

Date:17 July 2020

Place:Melbourne

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentage determination dated 21 November 2018 be revoked and that a new care percentage determination be made as follows:

(a)the Applicant had a care percentage of 71 percent and the Other Party had a care percentage of 29 percent in relation to their four children (for the time that each of them were under the age of 18) as from 30 January 2017 to 6 February 2020, to take effect from 17 April 2019 to 5 February 2020; and

(b)the Applicant has a care percentage of 66 percent and the Other Party has a care percentage of 34 percent in relation to Child C and Child D as from 6 February 2020, to take effect as from 6 February 2020.

.....[sgd]...................................................................

Member K. Parker

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.

Catchwords

CHILD SUPPORT – review of care percentage determination – conflicting evidence by each parent of actual nights of care of children – Court orders for care arrangements not complied with until recently –  limited corroborating evidence – decision under review set aside – care percentage determination revoked – new care percentage determination made – AAT first review was lodged out of time – whether special circumstances existed to justify an earlier date of effect of new care percentage determination

Legislation

Child Support Assessment Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

Secondary Materials

Guides to Social Policy Law, Child Support Guide

REASONS FOR DECISION

Member K. Parker

17 July 2020

BACKGROUND

1. The Applicant, MBXD, and the Other Party, CGHW, are the separated parents of four children, who the Tribunal will refer to as Child A, B, C and D (from oldest to youngest). Child A and B were born in April 2000 and September 2001 respectively, and are now over the age of 18.

2. The Tribunal was informed that a care determination was first made in 2010 for the purpose of assessing child support payments to the effect that the four children were in MBXD’s care for 65 percent and CGHW’s care for 35 percent (First Care Percentage Determination).

3. On 3 May 2011, the Federal Magistrates’ Court of Australia (Court) made final orders providing for formal care arrangements for the children. The effect of the Court orders is that during school term, CGHW is to care for the four children for a total of four nights per fortnight and MBXD is to care for them for a total of 10 nights per fortnight.

4. At the hearing there was consensus between MBXD and CGHW that a change took place in the actual schedule of care for the children at the start of 2017, such that it no longer took place strictly in accordance with the specific days of care during school term as provided for in Court orders. MBXD and CGHW disagree about what change took place, with MBXD asserting that the children were in CGHW’s care for only three nights per fortnight during school term and CGHW asserting that, despite the change in the schedule, the children were still in his care for four nights per fortnight on average. CGHW accepted that the children had not been in his care every second Thursday night as provided for in the Court orders due to the children’s extracurricular activities and the considerable distance between his residence and MBXD’s residence.  He told the Tribunal that when he missed out on caring for the children every second Thursday night, he would make it up on the following night (i.e. on Friday night). MBXD denied that this occurred.

5. MBXD and CGHW agree that since 6 February 2020, the care arrangements have now been restored to reflect the care schedule as provided for in the Court orders as described in paragraph [3] above.

   Initial notification by MBXD of change in care – April 2018

6. On 9 April 2018, MBXD contacted the Child Support Registrar (CSR) claiming that there had been a change in care at the start of 2017. On 13 April 2018, the CSR contacted CGHW to discuss this notification of change of care with him and the notes taken by the CSR representative recorded as follows (emphasis added):

   (UFK33 13/04/2018 08:34)

   PP advised busy not able to talk.

   I asked PP to call CS back within 10 working days on 131272 to discuss care change RP reported and arrears.

   If not CS may make a decision base (sic) on the info CS have.

   PP advised ok.

7. On 28 April 2018, the CSR made a new care percentage determination with effect from 9 April 2018, providing that MBXD had 71 percent of the care and CGHW had 29 percent of the care of the four children (Second Care Percentage Determination).[1]

   [1] Refer T-Documents T9/143 & 144. The T-Documents are a set of documents lodged with the Tribunal by the Registrar pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

   Objection lodged by CGHW – September 2018

8. On 13 September 2018, CGHW lodged an objection to the Second Care Percentage Determination. The objection officer allowed CGHW’s objection and issued a decision on 21 November 2018 refusing to set the care percentage to reflect that the children were in MBXD’s care for 71 percent and CGHW’s care for 29 percent (as claimed by MBXD). Instead, a care percentage determination was made providing that with effect from 14 September 2018 (being the day after CGHW’s objection was lodged), the children were in MBXD’s care for 65 percent and CGHW’s care for 35 percent (Third Care Percentage Determination).

   AAT first review lodged by MBXD – April 2019

9. On 17 April 2019, MBXD sought review of the Third Care Percentage Determination by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). On 13 August 2019, the AAT1 affirmed the Third Care Percentage Determination (AAT1 Decision). This decision was posted to the parties on 26 August 2019.

   AAT second review to this Tribunal lodged by MBXD – September 2019

10. On 24 September 2019, MBXD sought review of the AAT1 Decision by the General Division of the Administrative Appeals Tribunal (this Tribunal).

    Hearing before this Tribunal – July 2020

11. A hearing took place on 13 July 2020. The Tribunal was provided with written submissions and supporting evidence by both parties which has been carefully considered. Of note, this evidence did not include any records of care as maintained by either parent or any direct evidence (such as text messages or email communications) to show a pattern of when the children were in the care of either parent. The paucity of evidence has made the Tribunal’s task of determining the percentage of care a difficult one, as indicated to the parties at the hearing. The Tribunal offered to the parties to adjourn the hearing for several hours to allow them an opportunity to search for such text messages or email communications to be able to provide some corroborating evidence to the Tribunal. CGHW told the Tribunal that he did not wish to take up that opportunity as he had work commitments that afternoon when it was proposed the hearing would resume. Both CGHW and MBXD told the Tribunal that they were content for the Tribunal to makes its decision based on the evidence that was presently before the Tribunal, so the Tribunal has done so.

    ISSUES

12. As mentioned above, the parties agree that there was a change in care in January 2017 such that the care schedule in the Court orders was no longer adhered to. The Tribunal finds accordingly. The dispute before the Tribunal is about how those care arrangements changed and whether they resulted in a change to the percentage of care of the children by each of the responsible parents.

13. Accordingly, the issues for determination by this Tribunal are:

    (a)whether it should revoke the Third Care Percentage Determination and make a new care determination in accordance with s 50 of the Child Support Assessment Act 1989 (Cth) (Assessment Act); and

    (b)if so, the Tribunal must determine:

    (i)the percentage of care of the children by each parent during the “care period”;

    (ii)what period should be taken as the “care period” in the circumstances of this case; and

    (iii)when the new care percentage determination will take effect.

    CONSIDERATION

14. The Tribunal is satisfied that, at all relevant times since the parents have separated, there was a “pattern of care” for their children for the purpose of satisfying s 50(1)(b)(ii) of the Assessment Act. This was not in dispute.

15. The percentage of care determined by this Tribunal must be based on the actual care that was provided to the children by each parent during the “care period”.

16. The legislation does not define the term “care period”. The Child Support Guide correctly identifies the absence of any definition for this term and provides guidance that a        decision-maker might take the “care period” as being the 12-month period to follow on from the first day on which the care changed. The ultimate decision of the Tribunal in respect of an assessment of percentage of care in this case does not hinge on the decision about what period should be used as the appropriate “care period” because there was no suggestion by MBXD or CGHW that the level of care provided by each parent (as contended by each of them respectively), over the period 30 January 2017 to 6 February 2020 varied over that period.

17. If the suggested approach outlined in the Child Support Guide was applied in this case, the relevant care period would be 30 January 2017 to 29 January 2017. While nothing turns on it in this case (for the reason the Tribunal has mentioned in the above paragraph), the Tribunal is not comfortable ascribing this earlier period as the relevant “care period”, because MBXD did not notify the CSR of the asserted change of care until 9 April 2018 and the CSR did not notify CGHW about this until 10 April 2018 when a telephone message was left for him. This meant that CGHW was not placed on notice during the 2017 calendar year, or for the start of 2018, that MBXD contested the care percentage determination that had been made by the CSR in respect of their children during that period.

18. In this case, the Tribunal considers it appropriate to use as the “care period” for the purpose of making its assessment as to the percentage of care of the responsible parents, the          12-month period commencing on 10 April 2018 to 9 April 2019 (Care Period).  The rationale for this is that CGHW was on notice on 10 April 2018 that the care percentage determination was in dispute and, at least theoretically (if he wanted to or had taken the time to do so), he had the opportunity to create and maintain an ongoing record of care in respect of the children. The fact that he chose not to do so in this case at any time, even after he was on notice that MBXD was challenging the care percentage determination, is irrelevant.

19. MBXD’s position is that from 30 January 2017 to 6 February 2020 (which covers the entirety of the Care Period) she cared for the children 11 nights per fortnight during school term and for six weeks during the school holidays. CGHW’s position is that he cared for the children four nights per fortnight during school term. One of those propositions, in respect of the school term period, must be incorrect as there are only 14 nights in a fortnight.

20. The Tribunal has considered CGHW’s oral evidence at the hearing that he cared for the children four nights per fortnight. This was not supported by any record of care maintained contemporaneously for any period of the care that was provided to the children. This was also not supported by evidence of any communications between him and MBXD or any of the children that would show that there was a pattern of the children, or some of the children, being in his care on a Friday night immediately following on from a “missed” Thursday night of care. The Tribunal notes an email that CGHW had written to MBXD on 8 June 2016 advising that for the winter months “not to bother with the Thursday contact visit” and suggested that it would be “great” if “some time in return with them can be allocated”.      There was no evidence before the Tribunal of any response by MBXD to CGHW’s suggestion for the allocation of some other time for him to care to the children.

21. In the CSR’s Statement of Facts, Issues and Contentions, the Tribunal was referred to an extract from a file note dated 11 September 2018 taken by a Services Australia service officer who spoke with a Child Services Agency service officer about this case (emphasis added):[2]

    * CLK SO Sue called to discuss the pending acre decision

    …

    * Details of the discussion with the customer:

    * Sue said that pyr [CGHW] agrees with the % of care however he asked why the DOE was 30/1/2017

    …

    - I said that if the DOE is in dispute [CGHW] can write an objection letter to [email protected]

    [2] Refer T-Documents T9/146.

22. Further, MBXD provided information about the schedule of extensive extracurricular activities for each of the children, some of which took place on a Friday night. The thrust of MBXD’s contention was that CGHW’s suggestion that he cared for the children on a Friday night, to make up for the missed Thursday nights, did not make sense logistically considering the activities that the children were regularly involved in on a Friday night. CGHW did not make any substantive response to this contention. At the hearing, and admirably so, CGHW confirmed that he had always made every effort to ensure that the children were able to attend their activities.

23. The Tribunal has also considered the witness statement tendered by MBXD which was provided by the hockey coach of Child C. The coach stated that he had seen MBXD transporting Child C to the games and training, including on Friday nights. The coach stated that he did not remember ever meeting CGHW.  CGHW said at the hearing that MBXD was the team manager of the sporting team concerned and this meant she would be present in any event.

24. The Tribunal is satisfied that given the busy schedules of the four children and the logistical challenge required to transport them between the homes of CGHW and MBXD on the Friday night after those activities and to return them on the following (Saturday) morning, that it is most unlikely they were in the care of CGHW as a “make up” night on the Friday nights as asserted by him. This conclusion is supported by the statement that CGHW was reported to have made on 11 September 2018 that he agreed with the percentage of care but disagreed with the date of effect being 30 January 2017 (see paragraph [21]).   This conclusion is also supported by the absence of any other primary evidence such a record of care or record of communications which CGHW has had an opportunity to present to the Tribunal for some time now, in preparation for the hearing of this application. 

25. For those reasons, the Tribunal finds, on the balance of probability, that during the Care Period the children were in the care of CGHW for three nights per fortnight and in the care of MBXD 11 nights per fortnight during school term. The Tribunal accepts MBXD’s further undisputed evidence that the children were in her care for six weeks of the school holidays.

26. There is an aggregate of 12 weeks of school holidays and 40 weeks of school term in any one year. The Tribunal has found that the children were in MBXD’s care for six weeks of the school holidays being 42 days over the Care Period. The Tribunal has found that during school term the children were in MBXD’s care 11 nights per fortnight, being 220 days over the Care Period.  This means that the Tribunal finds that the children were in MBXD’s care over the Care Period for a total of 262 days representing a percentage of care of 71 percent.  Correspondingly, the Tribunal finds that the children were in CGHW’s care for 29 percent.

27. The Tribunal finds that those care arrangements continued until 6 February 2020 at which time they reverted to the care schedule in accordance with the Court orders. Based on the care schedule in those orders, the Tribunal finds that MBXD either has or is likely to continue caring for the two youngest children for 10 days per fortnight during school term being        220 days per year and for six weeks of the school holidays (i.e. a total of 242 days per year). The Tribunal finds that as from 6 February 2020, MBXD has had 66 percent care and CGHW has had 34 percent care of Child C and D (both the under the age of 18, as at that date).

28. The Tribunal concludes that for the period 30 January 2017 to 5 February 2020, MBXD had 71 percent care and CGHW had 29 percent care of the children. Further, the Tribunal concludes that there was a change in care in respect of Child C and D which took place on 6 February 2020 following which MBXD had 66 percent of the care and CGHW had                34 percent of the care.

29. Accordingly, the Tribunal sets aside the AAT1 Decision and in substitution, revokes the Third Care Percentage Determination and makes a new care percentage determination as set out below under the heading “Decision”.

30. The Tribunal has considered the issue of when the new care determination should take effect. Having regard to subsections 95N(1) and (2) of the Child Support (Registration and Collection) Act 1988 (Cth) (Registration Act), prima facie, the decision of this Tribunal to set aside the AAT1 decision will have effect on and from 17 April 2019 (i.e. the date of the MBXD’s application for AAT1 review). However, an earlier date of effect may be applied if the Tribunal is satisfied there were “special circumstances” that prevented MBXD from not seeking review of the Third Care Percentage Determination (i.e. the CSR’s objection decision) before expiry of the AAT1 within the statutory time limit.

31. In a statement lodged with the Tribunal before the hearing, MBXD explained that she was delayed in lodging the AAT1 review for the following reason:

    ·I did not receive the decision letter. I was alerted to the change when I received a letter from Centrelink to notify a FTB debt.

    ·I am employed as a teacher and do not typically answer calls through business hours as the work place is not conducive to this. Hence, I missed any phone correspondence to communicate the notice and decision of objection. No voice mails were left to respond to.

    ·I work full time as a teacher and casually as a tutor and in medical reception. In addition to providing majority care for the children, I have limited time to access and respond to communication.

    ·The consequent debt of $12000 imposed by Centrelink as a result of the decision is significant and distressing.

32. The Tribunal does not consider there were special circumstances which prevented MBXD from lodging her application within the statutory time limit. Her circumstances were not out of the ordinary in relation to the situation of many separated parents in respect of being “time poor” due to the commitments of working and caring for children as the primary care giver. The Tribunal considered that there was insufficient evidence to provide an explanation as to why MBXD would not have received the correspondence notifying her of the Third Care Percentage Determination (for instance, there was no evidence that she had moved address at this time or changed her email address). On the balance of probabilities, the Tribunal finds that MBXD received the letter (and corresponding notice of her appeal (review) rights). Further, the Tribunal considers that MBXD would also have noticed the corresponding change to the child supports payments arising from the implementation of the determination. Accordingly, the Tribunal has decided that the first part of new percentage care determination (see paragraph [33(a)]) made by this Tribunal will take effect on 17 April 2019.

    DECISION

1. In conclusion, the Tribunal sets aside the decision under review and, in substitution, decides that the Third Care Percentage Determination dated 21 October 2018 be revoked and that a new care percentage determination be made as follows:

   (a)MBXD had a care percentage of 71 percent and CGHW had a care percentage of 29 percent in relation to their children (for the time that each of them were under the age of 18) as from 30 January 2017 to 5 February 2020, to take effect from 17 April 2019 to 5 February 2020; and

   (b)MBXD has a care percentage of 66 percent and CGHW has a care percentage of 34 percent in relation to Child C and Child D as from 6 February 2020, to take effect as from 6 February 2020.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

......[sgd]..................................................................

Associate

Dated: 17 July 2020

Date of hearing:	13 July 2020
Applicant:	By telephone
Advocate for the Respondent:	Ms April Voigt, Services Australia
Other Party:	By telephone