Minett and Mayes (Child support)

[2021] AATA 1298

Minett and Mayes (Child support) [2021] AATA 1298 (29 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020734

APPLICANT:  Mr Minett

OTHER PARTIES:  Child Support Registrar

Ms Mayes

TRIBUNAL:Member J Thomson

DECISION DATE:  29 March 2021

DECISION:

The decision under review is affirmed.

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 affirmed – date of effect – no special circumstances

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. Mr Minett and Ms Mayes are the parents of [Child 1], born 2004, and [Child 2], born 2007 (the children).

2. Mr Minett seeks review of an objection decision made by the Child Support Agency (the CSA) on 4 February 2021. This decision allowed Ms Mayes’ objection to an earlier CSA decision dated 1 December 2020 which had accepted Mr Minett’s application for a child support administrative assessment reflecting the care percentages for the children as 51% to Mr Minett and 49% to Ms Mayes from 28 November 2017, and deciding, in substitution, to reflect the care percentages for the children as 57% to Ms Mayes and 43% to Mr Minett, from the date of Ms Mayes’ objection lodged on 15 September 2020.

3. The Tribunal heard the matter on 11 March 2021. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the CSA (Exhibit 1). Both parents had copies of these documents with them at the hearing.

ISSUES

1. The issue which arises in this case is the determination of the care percentages to be recorded for each parent as at the date of Mr Minett’s application to the CSA on 28 November 2017 for an administrative assessment of child support for the children.

CONSIDERATION

1. 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”. Both sections reflect the idea that the CSA makes the point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the CSA and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?

2. In reaching its decision, the tribunal has considered the affirmed evidence given by the parents at the hearing, and the documentation contained in Exhibit 1.

Mr Minett’s evidence

1. Mr Minett’s case at the hearing was that, at the time he applied to the CSA for an administrative assessment of child support for the children on 28 November 2017, the parents had agreed to have shared equal 50% care of the children on a week about basis; he said he and Ms Mayes had arrived at this decision because it was not possible to divide shared care into equal nights of care over a seven day week.

2. The CSA’s record of Mr Minett’s application, contained in Exhibit 1, reflects Mr Minett informing the CSA that the parents separated on 21 August 2017, that there were no Court Orders or a parenting agreement in place at that time regarding the care arrangements for the children, and that each parent was having 50% care of the children from 10 September 2017.

3. The CSA’s file records also reflect Mr Minett advising the CSA that the equal shared care arrangement referred to in the preceding paragraph had been notified on 10 October 2017. It appears from a later CSA file note of a conversation with Ms Mayes on 6 December 2017 that the notification to which Mr Minett was referring was a notification of the change in care arrangements which Ms Mayes believed had been provided to the Family Assistance Office (FAO) division of Centrelink on 10 September 2017. This CSA file note records Ms Mayes advising the CSA officer that the FAO had already made a care determination regarding the children of 57% to her and 43% to Mr Minett, and that she was having 4 nights of care per week, and Mr Minett was having 3 nights of care per week.

4. On 1 December 2017, the CSA sent letters to each parent notifying them that it had accepted Mr Minett’s application for a child support assessment, effective from 28 November 2017.

5. Notwithstanding her notification to the CSA of the care she said she was having in the telephone conversation on 6 December 2017 referred to above, Ms Mayes did not object to the CSA’s decision of 1 December 2017 to accept Mr Minett’s application for an assessment, based on the care percentage determinations of 49% to her and 51% to Mr Minett.

6. It is not until 25 June 2019 that the issue of the actual care taking place regarding the children was raised, when Ms Mayes notified the CSA of a change in care for the children occurring on 26 January 2019, pursuant to which she submitted she was having 313 nights of care per year (86% care), and Mr Minett was having 52 nights of care per year (14% care).

7. On 3 September 2019, the CSA decision maker found the evidence of the parents regarding Ms Mayes’s change in care notification inconclusive, and refused to accept Ms Mayes’s notification. However, the CSA file notes recording the decision maker’s Reasons for that decision, reflect Mr Minett giving evidence to the effect that he collected the children at 6 pm on Wednesdays, that they remained with him until 6 pm on Saturdays, indicating that he was having 3 nights of care from 6 pm Wednesday until 6 pm on Saturday.

8. At the hearing, Mr Minett’s evidence was brief: he acknowledged that the parents had agreed upon a defined care arrangement according to which he would have 3 nights of care from Wednesday afternoon until 5 pm on Saturday afternoon, and Ms Mayes would have 4 nights of care from Saturday afternoon until Wednesday afternoon, when they would go to Mr Minett’s house. He stated that he had never disagreed with that care arrangement.

9. He said his issue was with the objections officer’s determination of the date of effect of the change in care to 15 September 2020, the date upon which Ms Mayes lodged her objection to the CSA’s original decision on 1 December 2017, reflecting Mr Minett’s care percentage for the children at 51%, and Ms Mayes’ care percentage at 49%, consistent with his contention that the parents had agreed to shared, equal care from 10 September 2017, and, as a consequence of the objection decision, he has incurred a Centrelink debt.

Ms Mayes’ evidence

1. Ms Mayes’ evidence at the hearing centred on her assertion that the care percentages had never been accurately recorded by the CSA as 57% to her and 43% to Mr Minett from 10 September 2017, notwithstanding she had informed the CSA officer [in] the course of the telephone conversation on 6 December 2017, referred to above, that a change in care had been notified to the FAO on or about 10 September 2017, and the FAO had made a determination to reflect the care percentages for the parents as 57% to Ms Mayes and 43% to Mr Minett, which she said was consistent with the care pattern of 4 nights of care to her and 3 nights of care to Mr Minett that she informed the CSA officer [was] the care pattern taking place when the CSA officer contacted her on 6 December 2017.

2. Ms Mayes made reference to the CSA’s decision on 3 September 2019, refusing to accept her change in care notification on 25 June 2019 that she was having 313 nights of care (86%) and Mr Minett was having 52 nights of care (14%) from 21 January 2019. She said she had not disputed this decision because she did not have enough evidence to support the change in care she claimed had taken place on 21 January 2019, nor did she object to the CSA’s decision to accept Mr Minett’s application for a child support assessment on 1 December 2017, applying the care percentages at 51% to him and 49% to Ms Mayes, notwithstanding her assertion in the course of the telephone conversation with the CSA officer on 6 December 2017 that the care was 57% to her and 43% to Mr Minett from 10 September 2017.

3. As noted by the Tribunal above, the CSA care decision of 3 September 2019 records a clear admission by Mr Minett that the care pattern had not changed, from the weekly pattern he was having from 6 pm on Wednesday to 6 pm on Saturday, effectively 3 nights of care, leaving Ms Mayes with 4 nights of care from 6 pm Saturday to 6 pm the following Wednesday night.

4. The Tribunal finds that the evidence, on balance, is that from 10 September 2017, Mr Minett has been having 3 nights of care, equating to 43% care (3 x 52 = 156 nights / 356 x 100 = 42.73% - rounded up to 43%), and Ms Mayes has been having 4 nights of care, equating to 57% care (4 x 52 = 208 nights / 365 x 100 = 56.98% - rounded up to 57%).

5. Subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988 (the Registration Act) provides, relevantly, that if a person lodges an objection to a care percentage decision, and the objection is lodged more than 28 days after notice of the care percentage decision was served, and the Registrar decides 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 lodges the objection.

6. Subsection 87AA(2) of the Registration Act also provides, relevantly, that if the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the prescribed 28-day period referred to in subsection 87AA(1) as set out above, the Registrar may determine that subsection (1) applies as if the reference to 28 days and that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

7. In this case, Ms Mayes lodged her objection to the CSA’s decision of 1 December 2017 on 15 September 2020. She did not provide any explanation for her failure to lodge an objection within the prescribed 28-day period referred to in subsection 87AA(1) of the Registration Act. Although she did contend that the reason she did not object to the CSA’s decision of 3 September 2019, refusing her change in care notification of 25 June 2019 was that she did not have sufficient evidence to challenge that decision, that does not amount to special circumstances, and no evidence of special circumstances which prevented her from lodging her objection was before the Tribunal at the hearing.

8. The Tribunal has determined the care percentages to be applied for the children at 43% to Mr Minett and 57% to Ms Mayes from 10 September 2017. As Ms Mayes objected to the decision made by the CSA on 1 December 2017 more than 28 days after notification of that decision, pursuant to the provisions of section 87AA of the Registration Act, the Tribunal determines the date of effect of the care percentages in its decision is 15 September 2020, the date on which Ms Mayes lodged her objection.

9. As the Tribunal has reached the same decision as the objections officer in the decision under review, the Tribunal affirms that decision.

DECISION

The decision under review is affirmed.