Milligan and Child Support Registrar (Child support)

[2019] AATA 5687

Milligan and Child Support Registrar (Child support) [2019] AATA 5687 (11 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017176

APPLICANT:  Ms Milligan

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member H Schuster

DECISION DATE:  11 November 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Milligan had a care percentage of 90% and Mr [A] had a care percentage of 10% in relation to their daughter [Child 1] with effect from 5 October 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – parents living under the same roof – date of effect due to objecting late – special circumstances prevented the applicant from lodging the objection on time - decision under review set aside and substituted

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. This is a review of a decision made by the Department of Human Services (Child Support) (the department) on 1 December 2018 about the care percentage in effect from 8 July 2018 in relation to Ms Milligan and Mr [A]’s daughter [Child 1] (born in 2017) for the purpose of a child support assessment.

2. Ms Milligan and Mr [A] are the parents of [Child 1] (born in June 2017). They separated in July 2018 but remained living under the same roof until Mr [A] could afford to move out, in about July 2019.

3. On 5 October Ms Milligan lodged an application for a child support assessment. As part of the application process Ms Milligan provided information about the care arrangements for [Child 1].

4. On 1 December 2018 an officer of the department also spoke to Mr [A] and obtained evidence about the care arrangements for [Child 1].

5. On 1 December 2018 the department determined Ms Milligan’s child support application and issued assessment notices to both parties. The assessment notices show that the care percentage for [Child 1] was taken to be 49% to Mr [A] and 51% to Ms Milligan from 5 October 2018.

6. On 19 June 2019 Ms Milligan objected to the care percentage decision. She told the department that even though they lived under the same roof, she provided 90% care for [Child 1] while Mr [A] provided only 10% due to his work pattern.

7. The department sought Mr [A]’s view about the objection but received no response.

8. On 12 August 2019 an objections officer disallowed Ms Milligan’s objection.

9. Ms Milligan applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision on 16 August 2019. A hearing was conducted by telephone on 11 November 2019.

10. Mr [A] was invited to apply to be joined as a party to the proceeding in August 2019. A Tribunal officer also spoke to him about making such an application. However, Mr [A] did not apply to be made a party to the review and thus the hearing proceeded without him.

11. As evidence, the Tribunal had before it a bundle of documents prepared by the Department containing 100 folios.

ISSUES

1. In this case the Tribunal has to decide the percentage of care that each of the parents has had in relation to [Child 1] from the start of the child support assessment. If this is different to the percentage of care which was used in the child support assessment at the time, the Tribunal must also decide the date of effect of the change.

2. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

3. The issue which arises in this case is:

   ·      What was the pattern of care in effect between Ms Milligan and Mr [A] in relation to [Child 1] for the purpose of the child support assessment from 5 October 2018?

CONSIDERATION

Brief summary of the law

1. The Child Support Registrar makes child support assessments using the statutory formula found in Part 5 of the Act. The formula requires the “cost percentage” for each parent in relation to each child to be worked out. Pursuant to section 55C of the Act, the cost percentage depends on each party’s percentage of care in relation to each child of the assessment.

2. The “percentage of care” is determined under Division 4 of Part 5 of the Act. Under section 50 of the Act the Child Support Registrar must determine the care percentages of each party to the assessment in relation to each child in respect of whom the assessment is made. The care percentage must be determined in relation to the care period which the Registrar considers to be appropriate having regard to all the circumstances. Subsection 50(3) requires that the care percentage corresponds to the actual care a person has had or is likely to have during the care period.

3. Pursuant to section 54A of the Act, the actual care of a child is to be worked out “based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period”. Notably, for the purpose of working out the care percentage a child cannot be in the care of more than one person at a time.

4. The Child Support Guide at 2.2.1 sets out the departmental policy in relation to the assessment of shared care where the parties to a child support agreement live under the same roof:

   Where parents are separated but living in the same house, the Registrar will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

5. The Child Support Guide provides helpful guidance for determining what constitutes relevant care of a child at section 2.2.1:

   In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:

   ·      To what extent the person has control of the child, including having overall responsibility for the child and making:

   omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

   oarrangements for others to meet the needs of the child (delegated care).

   ·      To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

   ·      To what extent the person pays for the costs of meeting the needs of the child.

   ·      To what extent the person otherwise provides financial support for the child.

   ·      To what extent the child provides for his or her own needs or has those needs met from another source.

   ·      To what extent the child is financially independent or financially supported from another source.

Evidence of Ms Milligan and Mr [A]

1. Ms Milligan told the Tribunal that she and Mr [A] remained living under the same roof from the date of their separation in July 2018 because at the time Mr [A] could not afford to move out. She said they lived largely separate lives and the care of [Child 1] was substantially provided by her, with Mr [A]’s agreement. It was also agreed that he would provide child support but that Ms Milligan would be responsible for [Child 1’s] costs.

2. Ms Milligan acknowledged that, as with others who share accommodation, some household bills were shared, but all of [Child 1’s] needs were met by her, including nappies, food and most significantly child care fees.

3. Ms Milligan returned to work on a casual basis, Mondays and Tuesdays, in about mid-2018. On days when she worked [Child 1] attended child care or was looked after by her grandmother. Ms Milligan paid all childcare costs. If [Child 1] was sick Ms Milligan would take time off work.

4. While they still lived together Mr [A] was rarely at home. Partly this was due to the separation and the couple keeping their distance from each other, but more significantly it was due to Mr [A]’s work hours: in addition to full-time employment [in an occupation], he was trying to establish his own business. So after a full day of work he would generally go to [a location] and undertake additional work. Ms Milligan stated that his work pattern was generally 6 am to 6 pm or longer. At times he would work weekends, at other times he would socialise with friends without her. She stated that Mr [A] was not in a position to provide care for the child.

5. Ms Milligan said that it was agreed between them that she would provide the majority of care, using family tax benefit (FTB) to pay for [Child 1’s] needs, and that Mr [A] did not intend and had not sought to claim FTB himself.

6. Ms Milligan said the care should be assessed as being provided 90% by her and 10% by Mr [A] from the date of separation.

7. The tribunal noted that there existed a file note dated 10 November 2018 where a departmental officer, summarising a conversation with her, had noted “she told Centrelink of care arrangements, which remain the same.... [Ms Milligan] advised the following care arrangements: 50/50 to both parents as living in the same home”.

8. Ms Milligan disagreed with that summary of the conversation. She noted that she had received FTB for [Child 1] until that time, and was new to child support. She did not agree that she would have told an officer that the care provided to [Child 1] equated to 50% for each parent. It also did not reflect the agreement she had with Mr [A].

9. The records show, on 1 December 2018 another officer spoke to Mr [A] about the child support assessment application. That officer noted the following evidence: “Verbal POP [proof of parentage] obtained from [Mr A] for [Child 1] and care confirmed at the 99% to [Ms Milligan] and 1% to [Mr A] even though they are separated under the same roof as [Mr A] advised he works 24/7”. Curiously, that statement does not appear to have been considered by the department.

10. Ms Milligan lodged a Centrelink form dated 4 January 2019 nominating her care percentage as 90% and Mr [A]’s as 10%. Both parents’ signature are on the form.

11. The Tribunal is satisfied, based on statements from Mr [A] to the department and Ms Milligan’s evidence at the hearing, that Ms Milligan provided most of the care for [Child 1] after separation of the parties, notwithstanding that they remained living under one roof.

12. The Tribunal is satisfied that, as at 5 October 2018, Ms Milligan provided 90% care and Mr [A] provided 10% care of [Child 1].

Date of effect of the care percentage

1. The Tribunal must also consider the date from which the child support percentage should take effect.

2. When the department accepts a child support application, the first child support period in which the liable parent is assessed to pay child support must start on the date of the application: subsection 31(1) of the Act. The objections officer found that the pattern of care in relation to [Child 1] changed on 8 July 2018 when the parties separated. While the Act allows the Child Support Registrar to determine a percentage of care in respect of a ‘care period’; given that the child support assessment can only take effect from the date of application, it seems to the Tribunal to be beyond the department’s power to set a care percentage for a date before any assessment of child support could take effect. The Tribunal finds that the care percentage for the purpose of the child support assessment cannot take effect before 5 October 2018.

3. In this case, a further consideration are time limits on the date of effect of a care percentage decision when there is a delay in seeking an objection. Ms Milligan lodged her objection on 19 June 2019, over six months after the original decision of 1 December 2018.

4. Under section 87A of the Registration and Collection Act, where a person lodges an objection to a care percentage decision more than 28 days after notification of the decision, any variation of the decision can only take effect from the date on which the objection is made.

5. There is a discretion available to extend the time for making an objection if there were special circumstances which prevented the objection from being made in time: subsection 87AA(2) of the Registration and Collection Act.

6. Ms Milligan stated that when she was first given the child support assessment she did not take particular note of the care percentage, nor did it have any particular impact on her: Mr [A] was providing sufficient financial support to meet bills and she was in receipt of FTB for [Child 1] and was using those funds to meet the costs of the child.

7. As child support was privately collected, the child support assessment had no tangible effect on her finances. Having had no prior experience with child support, she was unaware that the determination by the department of a child support care percentage would be used to retrospectively affect her FTB entitlement.

8. In June 2019 she was informed of having a sizeable FTB debt, based on the Child Support Registrar’s finding that her care percentage for [Child 1] was only 50% from 8 July 2018. When she queried this with Centrelink she was advised to object to the care percentage decision. The Tribunal accepts that, once she was made aware of the true effect of the department’s original decision, she objected promptly.

9. The Tribunal accepts Ms Milligan’s evidence that she did not understand that she was substantially affected by the original decision until the Centrelink debt was calculated. The Tribunal finds, in this case, that this constitutes a special circumstance which prevented Ms Milligan from exercising her objection right before June 2019.

10. The Tribunal finds that the objection decision must be set aside and a new care percentage decision must be made that Ms Milligan had 90% care of [Child 1] and Mr [A] had 10% care of [Child 1] with effect from 5 October 2018.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Milligan had a care percentage of 90% and Mr [A] had a care percentage of 10% in relation to their daughter [Child 1] with effect from 5 October 2018.