McLachlan and McLachlan (Child support)

[2023] AATA 275

McLachlan and McLachlan (Child support) [2023] AATA 275 (25 January 2023)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBERS:  2022/SC024468

2022/SC024762

APPLICANT:  Ms McLachlan

OTHER PARTIES:  Mr McLachlan

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  25 January 2023

DECISION:

2022/SC024468:

The Tribunal sets aside the decision under review and substitutes its decision that the existing determinations of care for the child [Child 1] are revoked from 19 March 2020 and from 20 March 2020 new determinations of care are made that Ms McLachlan has 77% care of [Child 1] and Mr McLachlan has 23% care of [Child 1].

The Tribunal has decided that a determination pursuant to section 95N(2) of the Child Support (Registration and Collection) Act 1988 should not be made, and therefore the date of effect of the Tribunal’s decision is 17 August 2022.

2022/SC024762:

The Tribunal affirms the decision under review.

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 – date of effect of the tribunal’s decision – late application for review – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines to make a determination under subsection 95N(2)

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 affirmed

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. This application relates to a decision by the Child Support Agency (the Agency) relating to the particulars of the assessment, being the care percentage maintained by the Agency for the child [Child 1].

2. Ms McLachlan and Mr McLachlan are the separated parents of [Child 1].  This matter relates to contact made by Ms McLachlan with the Agency on 6 April 2020 regarding the care arrangements for [Child 1].  

3. At the time of Ms McLachlan’s contact with the Agency, the administrative assessment of child support reflected [Child 1] as being in Ms McLachlan’s 49% care and Mr McLachlan’s 51% care from 25 October 2016.

4. Following this contact, on 18 May 2020, an employee of the Agency made a decision to revoke the existing care determination and to make a new care determination that Ms McLachlan had 100% care of [Child 1] and Mr McLachlan had 0% care of [Child 1] from 20 March 2020.

5. On 1 December 2021, Mr McLachlan lodged an objection to this decision.

6. On 20 January 2022, an objections officer of the Agency allowed the objection and decided to make a new care determination that Ms McLachlan had 58% care of [Child 1] and Mr McLachlan had 42% care of [Child 1] from 20 March 2020. The objections officer made a decision not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) so that the new care determination was to be implemented from 1 December 2021, being the date on which Mr McLachlan lodged the objection.

7. On 17 August 2022 and 23 August 2022, Ms McLachlan made applications to the Administrative Appeals Tribunal for an independent review of both the care percentage decision and the decision made under section 87AA of the Registration and Collection Act.

8. The Tribunal hearing was held on 22 December 2022, on which date both parties spoke to the Tribunal by MS Teams audio and gave evidence on affirmation.  At the hearing, the Tribunal had before it documents provided by the Agency (1 to 188 and 1 to 187), copies of which had been provided to the parties prior to the hearing.  Both parties confirmed receipt of the documents with the Tribunal. 

9. Following the hearing, the Tribunal deferred to allow the applicant to provide further information to the Tribunal.  This information (A1 to A16) was sent to Mr McLachlan and he was given time to comment on the information.  No response was received from Mr McLachlan in response to this information.  The Tribunal also sought further submissions from Ms McLachlan during the deferral period (A17 to A18), which were sent to Mr McLachlan for his information.  The Tribunal proceeded to make a decision on all of the information before it on 25 January 2023. 

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Registration and Collection Act.

2. The provisions of the Assessment Act relevant to this decision are sections 54F, 54G and 54H. The legal issue for the Tribunal in this matter is whether the existing care percentage maintained by the Agency for the child [Child 1] is to be revoked and, if so, from what date a new care determination is to be made. The Tribunal notes that the relevant care percentage at the time Ms McLachlan contacted the Agency reflected that Ms McLachlan had 49% care of [Child 1] and Mr McLachlan had 51% care of [Child 1].

Should the existing determination of care be revoked?

1. The Tribunal first considered section 54F of the Assessment Act. Subsection 54F(1) provides that the Registrar (or the Tribunal, standing in the shoes of the Registrar) must revoke a determination of a responsible person’s percentage of care in the following circumstances:

   (a)     the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and

   (b)     the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

   (c) section 54G does not apply; and

(d)     subsection (2) applies in relation to the individual.

Note:         The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

1. The Tribunal is satisfied that Ms McLachlan contacted the Agency on 6 April 2020 to advise that the care of [Child 1] that was actually taking place did not correspond with the percentages of care being maintained for him.  The Tribunal spoke to the parties at some length during the hearing about the care arrangements for [Child 1] as of 6 April 2020 and the intended arrangements going forward.  Ms McLachlan submitted to the Tribunal that the first lockdown in New South Wales had commenced on 31 March 2020 and that [Child 1] had been with her during this time because she had facilities at home for his online schooling.  [Child 1] had spent half a day with Mr McLachlan on 12 April 2020, but had not spent regular time with Mr McLachlan because Mr McLachlan’s mother and stepfather were concerned about catching Covid.  Ms McLachlan gave evidence that [Child 1] had wanted to be with his brother at Ms McLachlan’s and that Ms McLachlan had spoken to Mr McLachlan about [Child 1] being with her during the school week and sometimes going to Mr McLachlan’s on the weekend.  Ms McLachlan stated that these arrangements were worked out over the phone as arrangements were reasonably amicable between the parties.  Ms McLachlan gave evidence that there had been no clear pattern of care of [Child 1] from 20 March 2020 onwards.  While Mr McLachlan had some weekend care of [Child 1], this changed during school holiday times when he had additional days and care was not limited to weekend time.  Ms [Child 1] estimated that, in the period she had kept records for, she had had between 75% and 77% care of [Child 1].

2. Ms McLachlan gave evidence that she had prepared a spreadsheet of the care arrangements for [Child 1] for the period March 2020 to December 2021 but that she had not provided this to the Tribunal prior to the hearing.  Ms McLachlan gave evidence that the spreadsheet had been prepared from phone and text messages between herself and Mr McLachlan over this period of time.  As to how she had worked out the dates on the spreadsheet if some arrangements had been by telephone rather than text, Ms McLachlan stated that some dates she has said “no record”.  Ms McLachlan stated that the dates she has referred to in her spreadsheet refer to overnight care of [Child 1].

3. It was this information that Ms McLachlan was given time after the hearing to provide to the Tribunal, on the basis that the Tribunal considered the additional information was relevant to the legal issues before it and may assist the Tribunal in determining the care arrangements for [Child 1] from 20 March 2020 onwards.  The spreadsheet information provided by Ms McLachlan after the hearing sets out what she states were the care arrangements for [Child 1] from 20 March 2020 to 31 December 2021.  As noted above, Mr McLachlan did not provide any written response to this information when given an opportunity to do so after the hearing.

4. Mr McLachlan’s evidence to the Tribunal at the hearing was that he had moved from his mother’s house to his father’s house during the pandemic and had returned to his mother’s house at the end of 2020.  Mr McLachlan stated to the Tribunal that his recollection is that he had [Child 1] every weekend over this period.  He had objected to the original decision made by the Agency because he was upset that the decision said he had not had any care of [Child 1] and this was not the case.  He stated that he had not kept any care records for [Child 1] for 2020 or 2021.  He agreed that [Child 1] had undertaken schooling at Ms McLachlan’s house during covid lockdowns and did not specifically respond to Ms McLachlan’s evidence that her care was around 75%, stating in response to the Tribunal’s request for him to comment that he had had care of [Child 1] for two to three nights on weekends between March 2020 and December 2021.

5. Contained in the Agency documents were letters Mr McLachlan had provided to the Agency.  As discussed with the parties at the hearing, the Tribunal was not persuaded that these provided clear and cogent evidence of the care arrangements for [Child 1] from 20 March 2020 onwards.  The Tribunal noted that the letter prepared by Mr McLachlan’s neighbours, and his father’s neighbour, appears to have been prepared in December 2021, significantly after the period of time under review.  The letters are not prepared by persons independent of Mr McLachlan and the Tribunal therefore placed little weight on their contents.  A further letter prepared by Mr McLachlan’s employer indicates that Mr McLachlan did not commence working for him until April 2021 and is therefore unable to provide any convincing evidence of the care arrangements for [Child 1] as of March 2020. 

6. The Tribunal considered that the best evidence before it as to the care arrangements for [Child 1] was the calendar information provided to the Tribunal after the hearing by Ms McLachlan.  The Tribunal accepted Ms McLachlan’s evidence that she had completed the calendar from text message information and the Tribunal accepted that the text messages, on which the information was based, provided contemporaneous and accurate information about the care arrangements for [Child 1].  In determining the care percentage for [Child 1] from 20 March 2020 onwards, the Tribunal considered that a 12 month period was appropriate on the basis that this is recommended in the Child Support Guide as a reasonable period over which to consider care, and because later entries in Ms McLachlan’s information (for example, late 2021) had a number of blank dates for which neither Ms McLachlan nor Mr McLachlan were identified as having provided care for [Child 1].

7. The Tribunal finds that the care arrangements for [Child 1] changed as of 20 March 2020. The Tribunal finds that, based on the calendar information, in the period 20 March 2020 to 19 March 2021, Ms McLachlan had 77% care of [Child 1] and Mr McLachlan had 23% care of [Child 1]. In so finding, the Tribunal notes that Ms McLachlan submitted that Mr McLachlan had “0.5” care of [Child 1] on two dates but no corresponding care herself and the Tribunal attributed these dates to Mr McLachlan. There were six days for which Ms McLachlan had no record of care and the Tribunal attributed these equally to the parties, that is, three additional nights each. If the Tribunal were to make a new care determination under section 49 of the Assessment Act based on these care percentages, Ms McLachlan’s cost percentage, as calculated under section 55C of the Assessment Act, would change from 50% to 76% and Mr McLachlan’s cost percentage would change from 50% to 24%.

8. The Tribunal further finds that section 54G did not apply (neither parent had less than regular care of [Child 1]) and that subsection 54F(2) applies (there was no interim determination under section 51 of the Assessment Act).

9. The requirements for revocation of the existing care determination under subsection 54F(1) of the Assessment Act are met in the circumstances of this case. The Tribunal finds that notification of the change of care occurred within 28 days and that, under paragraph 54F(3)(a) of the Assessment Act, the existing determinations of care are revoked from 19 March 2020. New care determinations are made that, from 20 March 2020, Ms McLachlan had 77% care of [Child 1] and Mr McLachlan had 23% care of [Child 1].

What is the date of effect of the new care determination?

1. The Tribunal notes that section 87AA of the Registration and Collection Act is relevant in this case because the original decision was made by the Agency on 18 May 2020 and Mr McLachlan did not lodge an objection to this decision until 1 December 2021. Subsection 87AA(1) of the Registration and Collection Act provides that:

   (1)  If:

   (a)  a person lodges, under section 80A, an objection to a care percentage decision; and

   (b)  the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and

   (c)  the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;

   the date of effect of the review decision is the day on which the person lodged the objection.

2. Subsection 87AA(2) of the Registration and Collection Act then provides that where the Registrar (and the Tribunal on review) is satisfied there are special circumstances that prevented the person from lodging the objection within the relevant time period, the Registrar may determine such a longer period as the Registrar determines to be appropriate.

3. Mr McLachlan told the Tribunal at the hearing that his world had been turned “upside down” with the COVID-19 pandemic and he had moved from his mother and stepfather’s house to his father’s house.  He had changed his driver’s licence to his father’s residence, but it was not a high priority at the time to change his address for everything.  He remained at his father’s house until the end of December 2020 before moving back to his mother and stepfather’s house.  He did not object earlier because he did not see the letter.

4. The Tribunal has considered the circumstances outlined by Mr McLachlan at the hearing and finds that these circumstances did not prevent him from lodging an objection with the relevant time period. The Tribunal notes that, in so finding, Mr McLachlan had made a decision not to transfer all correspondence to his father’s accommodation during the period of lockdown and had then returned to his mother’s house some 12 months before lodging the objection to the original decision made by the Agency. Given the application of section 87AA of the Registration and Collection Act, the date of effect of the new care determination is 1 December 2021, being the date that Mr McLachlan objected to the original decision. Therefore, the Tribunal affirms the objections officer’s decision made under section 87AA of the Registration and Collection Act. The effect of this is that the original decision made by the Agency will have effect until the day the objection was received by the Agency.

5. In addition, given the objections officer’s decision was made on 20 January 2022 and Ms McLachlan did not contact the Tribunal until 17 August 2022 to seek a review of this decision, the Tribunal is required to also consider section 95N of the Registration and Collection Act. Subsection 95N(1) of the Registration and Collection Act provides that:

   (1)  If:

   (a)  on AAT first review, the AAT varies or substitutes a decision on an objection to a care percentage decision; and

   (b)  the application for AAT first review was made more than 28 days, or, if the applicant is a resident of a reciprocating jurisdiction, 90 days, after notice of the decision was given;

   then, despite subsection 43(6) of the AAT Act, the decision as varied or substituted by the AAT has or is taken to have had effect on and from the day the application for AAT first review was made.

6. Subsection 95N(2) of the Registration and Collection Act states that if the Tribunal is satisfied that there are special circumstances that prevented the application to the Tribunal being made within the 28 day period, the Tribunal may determine a longer period as determined to be appropriate.

7. The Tribunal sought submissions from Ms McLachlan as to her reasons for having applied outside of 28 days to the Tribunal.  Ms McLachlan submitted that she had spoken to a customer service officer from the Agency in late 2021 who advised her that correspondence would be sent to her and to wait for this.  She was not aware that correspondence was being sent to her through her MyGov app and was not aware of an issue until August 2022 when amounts were being withheld to repay an overpayment of child support.  She then requested that correspondence be sent to her by mail and applied to the Tribunal.  The Tribunal noted that this appeared to be inconsistent with the Agency documents which states that the letter was sent to Ms McLachlan on 20 January 2022 and is marked as “online read”.  The Tribunal finds from this that notice of the decision was given to Ms McLachlan on 20 January 2022. 

8. The Tribunal carefully considered the matters raised by Ms McLachlan but was not satisfied that these prevented Ms McLachlan from applying to the Tribunal earlier. In so finding, the Tribunal noted that Ms McLachlan was told to expect correspondence and appears not to have followed this up with the Agency for some significant period of time, and that the Agency documents indicate that the online letter was read by Ms McLachlan. The Tribunal finds that there were not special circumstances the prevented Ms McLachlan from applying to the Tribunal within the prescribed period. Subsection 95N(1) of the Registration and Collection Act provides that the date of effect of the Tribunal’s decision is 17 August 2022, being the date on which Ms McLachlan made an application to this Tribunal.

DECISION

2022/SC024468:

The Tribunal sets aside the decision under review and substitutes its decision that the existing determinations of care for the child [Child 1] are revoked from 19 March 2020 and from 20 March 2020 new determinations of care are made that Ms McLachlan has 77% care of [Child 1] and Mr McLachlan has 23% care of [Child 1].

The Tribunal has decided that a determination pursuant to section 95N(2) of the Child Support (Registration and Collection) Act 1988 should not be made, and therefore the date of effect of the Tribunal’s decision is 17 August 2022.

2022/SC024762:

The Tribunal affirms the decision under review.