Muigand and Aylesbury (Child support)
[2024] AATA 2533
•11 June 2024
Muigand and Aylesbury (Child support) [2024] AATA 2533 (11 June 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2024/BC027729
APPLICANT: Mr Muigand
OTHER PARTIES: Child Support Registrar
Ms Aylesbury
TRIBUNAL:Member I Sheck
DECISION DATE: 11 June 2024
DECISION:
The Tribunal sets aside the decision under review, and, in substitution, decides that:
· Ms Aylesbury’s care percentage in respect of [Child 1] and [Child 2] is 72% with effect from 28 January 2020; and
· Ms Aylesbury’s care percentage in respect of [Child 1] is 4% and in respect of [Child 2] is 36% with effect from 11 July 2022; and
· Mr Muigand’s care percentage in respect of [Child 1] is 96% and in respect of [Child 2] is 64% with effect from 1 February 2023; and
· The date of effect of the Tribunal’s decision is 21 December 2023.
CATCHWORDS
CHILD SUPPORT – percentage of care – change to the likely pattern of care – existing percentage of care determinations revoked – new determinations made – date of effect of decision – 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 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
Mr Muigand and Ms Aylesbury are the parents of [Child 1], born 11 June 2011, and [Child 2], born 19 December 2012. A case was registered with Services Australia – the Child Support Agency (“Child Support”) for the assessment of child support on 23 May 2014. Child Support has been responsible for collection of the liability since 24 June 2014. The assessment of child support was based on care percentages of 86% to Ms Aylesbury and 14% to Mr Muigand. On 1 February 2023, Mr Muigand notified Child Support that from 2019 he had the majority care of the girls and since January 2022 he had care of [Child 1] and [Child 2] for around 90% of the time.
On 7 February 2023, Child Support contacted Ms Aylesbury regarding the change in care and she stated that she and Mr Muigand had agreed some years ago to not follow the 2015 Court Orders. From Term 2 of 2020 the girls had attended school in both [Town 1] (where Mr Muigand lived) and [Town 2] (where Ms Aylesbury lived) and generally spent 75% of the school holidays with Mr Muigand. Both parties were requested to provide evidence to support their claims regarding the care arrangements, and did so. On 26 March 2023, a decision was made that:
· Mr Muigand had 56% care of [Child 1] and 36% care of [Child 2], with effect from 14 April 2020;
· These percentages would be applied to the child support assessment from 1 February 2023;
· Ms Aylesbury had 44% care of [Child 1] and 64% care of [Child 2], with effect from 14 April 2020;
· These percentages would be applied to the child support assessment from 14 April 2020.
On 21 December 2023, Mr Muigand objected to the decision. On 18 March 2024, an objections officer of Child Support disallowed the objection; this meant that they affirmed the original decision made on 26 March 2023.
By application received on 2 April 2024, Mr Muigand asked this Tribunal to review the decision of the objections officer. On 11 June 2024, the Tribunal conducted a hearing at which Mr Muigand and Ms Aylesbury gave evidence by MS Teams audio. The Tribunal had before it the relevant documents from Child Support (pages 1 to 297), which had been copied to the parties.
CONSIDERATION
The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act 1989 (“the Act”) and the Child Support (Registration and Collection) Act 1988 (“the Collection Act”). The Act sets out the statutory formula for the calculation of child support, which takes into account each parent’s adjusted taxable income and the level of care they provide for each child of the assessment. The provisions require Child Support (and the Tribunal on review) to determine a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
Has there been a change in care?
As at April 2020, Child Support had recorded that in respect of [Child 1] and [Child 2], Ms Aylesbury had an attributed percentage of care of 86% and Mr Muigand had 14%. The first issue is whether the care that was actually taking place corresponded with the recorded percentages of care.
The background to the case is as set out above. The Tribunal asked Mr Muigand why he waited so long to notify Child Support of the change in care arrangements and he responded that he didn’t want to cause any friction (between himself and Ms Aylesbury) but given that he had the majority care of the girls he didn’t think that he should be accruing such a child support debt. The parties were in agreement that since the COVID-19 period, [Child 2] and [Child 1] have been “transitioning” from school in [Town 2] to [Town 1], some 1,000 kilometres away. In order to do this, they would spend one or two terms at one school and then a term or two at the other school. Since Term 3 of 2022 (which started on 11 July 2022) [Child 1] has been attending [Town 1] School full-time and [Child 2] has done the same from the beginning of this school year.
The parties have provided enrolment records from [Child 1] and [Child 2’s] schools and Ms Aylesbury summarised this information at page 226 of the hearing papers, which she provided to Child Support on 12 March 2024. The Tribunal asked Mr Muigand whether he agreed that this summary was correct and he agreed that it was broadly so. At the hearing Ms Aylesbury also orally provided details of the number of weeks that she and Mr Muigand had care of each of their daughters from the 2020 school holidays to date. Mr Muigand did not indicate that he disagreed with Ms Aylesbury’s evidence on this point and the Tribunal is satisfied that it is correct. On the basis of this evidence, the Tribunal finds that the nights [Child 1] and [Child 2] have been in the care of each of their parents from 2020 to date is as follows:
[CHILD 1] School Ms Aylesbury Mr Muigand 2020 term 1: 28 January to 3 April [Town 2] 67 term 2: 20 April to 26 June [Town 1] 68 term 3: 13 July to 18 September [Town 2] 68 term 4: 6 October to 11 December [Town 2] 67 School holidays 2020 21 63 2021 term 1: 27 January to 1 April [Town 2] 65 term 2: 19 April to 25 June [Town 1] 68 term 3: 12 July to 17 September [Town 2] 68 term 4: 5 October to 10 December [Town 2] 67 School holidays 2021 42 42 2022 term 1: 24 January to 1 April [Town 2] 68 term 2: 19 April to 24 June [Town 2] 67 term 3: 11 July to 16 September [Town 1] 68 term 4: 4 October to 9 December [Town 1] 67 School holidays 2022 14 70 2023 term 1: 23 January to 31 March [Town 1] 68
term 2: 17 April to 23 June [Town 1] 68 term 3: 10 July to 15 September [Town 1] 68 term 4: 3 October to 8 December [Town 1] 67 School holidays 2023 14 70 2024 term 1: 22 January to 28 March [Town 1] 67
term 2: 15 April to 21 June [Town 1] 68
[CHILD 2] School Ms Aylesbury Mr Muigand 2020 term 1: 28 January to 3 April [Town 2] 67 term 2: 20 April to 26 June [Town 1] 68 term 3: 13 July to 18 September [Town 2] 68 term 4: 6 October to 11 December [Town 2] 67 School holidays 2020 21 63 2021 term 1: 27 January to 1 April [Town 2] 65 term 2: 19 April to 25 June [Town 1] 68 term 3: 12 July to 17 September [Town 2] 68 term 4: 5 October to 10 December [Town 2] 67 School holidays 2021 42 42 2022 term 1: 24 January to 1 April [Town 2] 68 term 2: 19 April to 24 June [Town 2] 67 term 3: 11 July to 16 September [Town 1] 68 term 4: 4 October to 9 December [Town 2] 67 School holidays 2022 21 63 2023 term 1: 23 January to 31 March [Town 1] 68
term 2: 17 April to 23 June [Town 2] 68 term 3: 10 July to 15 September [Town 1] 68 term 4: 3 October to 8 December [Town 2] 67 School holidays 2023 35 49 2024 term 1: 22 January to 28 March [Town 1] 67
term 2: 15 April to 21 June [Town 1] 68
Section 50 of the Act provides that a person’s percentage of care for the purposes of the child support assessment is based on the “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”. The Tribunal considers it appropriate to break up the 4 year period above into segments which seem to reflect changes in the overall patterns of care. The Tribunal is of the view that the care periods are 28 January 2020 to 10 July 2022 and 11 July 2022 on. The reason for this is that [Child 1] remained at [Town 1] School full-time from that point and [Child 2] tended to alternate terms of study rather than remaining predominantly at [Town 2] School.
Assessing the school holidays at the end of each year for consistency, Ms Aylesbury’s percentage of care for the first care period is 72% and Mr Muigand’s is 28%. For the second care period, Mr Muigand’s percentage of care for [Child 1] increases to 96% and Ms Aylesbury’s reduces to 4%. Turning to the care arrangements for [Child 2], she was also in the care of Mr Muigand for 28% of the time in the care period 28 January 2020 to 10 July 2022 and with Ms Aylesbury for the remaining 72%. For the second care period, Mr Muigand’s percentage of care is 64% and Ms Aylesbury’s is 36%.
Should the existing care determinations in relation to [Child 1] and [Child 2] be revoked?
Subsection 54F(1) of the Act sets out circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children and the responsible person's cost percentage for the child would change if the Registrar were to determine another percentage to be the person's percentage of care for the child. Turning then to the cost percentages, these are set out at section 55C of the Act. If a parent has a care percentage of less than 14%, their cost percentage is 0% and if their care percentage is between 14% and 35%, then their cost percentage is 24%.
The Tribunal is required to consider what the actual care of [Child 1] and [Child 2] was or is likely to be during the care period. As discussed above, the Tribunal has calculated that Mr Muigand had 28% of the care of [Child 1] and [Child 2] with effect from 28 January 2020. Accordingly, the previous determinations of care, that Mr Muigand had a percentage of care of 14% and Ms Aylesbury had a percentage of care of 86%, must be revoked and new care determinations made.
Date of effect of the decision to revoke the care determination
In terms of the date of effect of the new care determinations, if a party has advised of the care change within 28 days of the change, then the new determination takes effect from the date of the change. That is not the case here. The notification by Mr Muigand of the change in care was received by Child Support on 1 February 2023 and was in relation to change of care events that happened on 28 January 2020 and 11 July 2022.
As the notification of the care change was more than 28 days after the stated change of care events, subsection 54F(3) provides:
(3) The revocation of the determination takes effect at the end of:
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person - the day before the change of care day; or
(b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i) the responsible person's care of the child has increased - the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii) the responsible person's care of the child has reduced - the day before the change of care day.
The term “responsible person” is defined at section 5 of the Act as a parent or non-parent carer of the child; in this case, the parents Mr Muigand and Ms Aylesbury. As Mr Muigand’s care of [Child 1] and [Child 2] had increased from 14%, the determination as to his percentage of care must be revoked from 31 January 2023, which is the day before notification of the care change. As at the time of Mr Muigand’s notification, his percentage of care had changed again and was 96% for [Child 1] and for [Child 2], 64%. Due to the late notification, this is the new determination that must replace the revoked determination from 1 February 2023.
As Ms Aylesbury’s care reduced in January 2020 and reduced again with the change in pattern of care from 11 July 2020, the revocation of her care determinations must take effect from the day before each of the change days, that is, 27 January 2020 and 10 July 2022. New care determinations are then made from the day after the relevant revocations, setting out the new care percentages for each of the parties.
What is the date of effect of the Tribunal’s decision?
Determinations were made on 26 March 2023 under section 50 of the Act that the care percentages for Ms Aylesbury and Mr Muigand would be 64% for Ms Aylesbury and 36% for Mr Muigand in respect of [Child 2] and 44% for Ms Aylesbury and 56% for Mr Muigand in respect of [Child 1]. The Tribunal is setting aside that determination and substituting a new decision as set out at paragraph 10 above.
Ms Aylesbury and Mr Muigand were notified of the original decision by communications dated 26 March 2023 and Mr Muigand did not apply for review of that decision until 21 December 2023. Section 87AA of the Collection Act provides that where a person objects to a child support decision more than 28 days after being given notice of that decision, and the objections officer varies or sets aside the original decision, then the general rule is that the date of effect of the review decision is the day on which the person lodged the objection. The 28-day time limit may be extended if special circumstances prevented the person from lodging the objection.
In Ms Aylesbury’s case, however, the objections officer affirmed the original decision so the application of section 87AA did not arise. The date of effect of the Tribunal’s decision is therefore made under subsection 43(6) of the Administrative Appeals Tribunal Act 1975 which allows the Tribunal to specify a date from which its decision takes effect. Guided by Kelvin Walker v Secretary, Department of Social Security [1997] FCA 589, the Tribunal’s consideration of the impact of Mr Muigand’s late objection is informed by section 87AA of the Collection Act. This means that as Mr Muigand’s objection to the original decision was out of time, this decision of the Tribunal will only have effect from 21 December 2023 unless the Tribunal finds that special circumstances prevented lodgement and determines another date.
At the hearing, Mr Muigand advised the Tribunal that he had not been aware that the original decision had been made on 26 March 2023. He had usually received communications from Child Support in the mail and was unaware that communications were now being sent electronically. He didn’t check his myGov account often, generally only at tax time. It is not clear, from the documents provided, whether the notice in question was sent by post or electronically. The Tribunal is, however, of the view that if it was delivered to Mr Muigand’s myGov account, he would also have received an email notification that he had a new item in his myGov inbox. The Tribunal cannot find that Mr Muigand’s failure to check his myGov inbox, after his notification of the care change in February 2023, constitutes special circumstances. This means that the Tribunal determines that the date of effect of its decision is the date of Mr Muigand’s objection: 21 December 2023.
DECISION
The Tribunal sets aside the decision under review, and, in substitution, decides that:
· Ms Aylesbury’s care percentage in respect of [Child 1] and [Child 2] is 72% with effect from 28 January 2020; and
· Ms Aylesbury’s care percentage in respect of [Child 1] is 4% and in respect of [Child 2] is 36% with effect from 11 July 2022; and
· Mr Muigand’s care percentage in respect of [Child 1] is 96% and in respect of [Child 2] is 64% with effect from 1 February 2023; and
· The date of effect of the Tribunal’s decision is 21 December 2023.
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