Munson and Munson (Child support)

[2021] AATA 1280

Munson and Munson (Child support) [2021] AATA 1280 (12 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC020524

APPLICANT:  Mr Munson

OTHER PARTIES:  Child Support Registrar

Ms Munson

TRIBUNAL:Member R King

DECISION DATE:  12 April 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, determines that, from 28 December 2019, Mr Munson had 15% of the care of his five children and Ms Munson had 85% of their care.  The date of effect of the change of care percentage is 24 June 2020.

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 – date of effect – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist

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 Munson and Ms Munson are the parents of [Child 1], [Child 2], [Child 3], [Child 4] and [Child 5], who range in age from 13 years to 4 years.  Under an administrative assessment, the Child Support Agency (CSA) has been collecting child support from Mr Munson for payment to Ms Munson. From 6 May 2018, the care of all five children was recorded as 100% with Ms Munson and 0% with Mr Munson.

2. On 18 February 2020, Mr Munson contacted the CSA and advised that he had provided 16 nights of care of the children since 28 December 2019.  After considering the available evidence, the CSA decided, on 27 March 2020, to record the children’s care as 96% with Ms Munson and 4% with Mr Munson from 28 December 2019. 

3. On 24 June 2020 (more than 28 days after notification of the change of care decision), Mr Munson objected to the care percentage decision for the children, stating that there was an established pattern of care whereby he had the children for two nights every third weekend, for two weeks over the summer holiday period and for one weekend during each of the minor school holiday periods.

4. On 28 November 2020, an objections officer allowed Mr Munson’s objection.  The objections officer noted that both parents agreed that Mr Munson had been providing increased care of the children but there was a dispute as to whether a regular pattern of care had been established.  The objections officer found the best estimate of Mr Munson’s care percentage, given the conflicting evidence was 13%.  The objections officer found that there were no special circumstances that prevented Mr Munson from lodging a timely objection.  This meant that the objection decision could only have effect from 24 June 2020.

5. On 22 December 2020 (within 28 days of receiving the objection decision), Mr Munson applied to the tribunal for review of the care percentage decision.  Ms Munson applied to be added as a party to Mr Munson’s application and her application was accepted by the tribunal.

6. The tribunal conducted a hearing on 15 March 2021.  Both Mr Munson and Ms Munson participated by conference telephone and provided sworn evidence.  The tribunal deferred a decision to allow both parties to provide further evidence and/or make written submissions.

CONSIDERATION

1. Mr Munson told the tribunal that he works as an [occupation 1] on a seven-day roster.  He said that he is guaranteed every third weekend off, which is why he arranged to have care of the children every third weekend.  He is also guaranteed two weeks off during the Christmas period and he can arrange to be available to provide care for at least one weekend of every term holiday.  Mr Munson told the tribunal that the care dates he provided to the CSA for 2020 (folios 14-15 of the hearing papers) are accurate and he can provide text message evidence that he had care of the children during these dates.

2. Ms Munson told the tribunal that Mr Munson resumed overnight care of the children in January 2020, after an extended period when she was the sole care provider.  She said that it has been difficult to make stable arrangements because of Mr Munson’s work commitments and that she does not agree with the care dates for 2020 that Mr Munson provided to the CSA.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the CSA for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA initially determined that Ms Munson had 100% of the care of the five children and that Mr Munson had 0% of their care.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, that a change in the care percentage would have an effect on the cost percentage, the original care percentage determination is revoked. If the change is insufficient to require a change to the cost percentage, the original determination is revoked under section 54H of the Act. In either case, a new care percentage is then determined under section 50 of the Act that does correspond with the actual percentages of care provided by each parent.

4. The evidence before the tribunal suggests that the initial care determination was revoked on 27 March 2020 after Mr Munson advised the CSA that he was providing overnight care of his children.  A new care percentage of 96% with Ms Munson and 4% with Mr Munson was determined and recorded.

5. Mr Munson successfully objected to this determination. However, while the objections officer increased Mr Munson’s care percentage to 13%, this change did not result to a change in the cost percentage, under section 55C of the Act. As a result Mr Munson is seeking a new care percentage determination, that increases his cost percentage and thereby reduces his child support liability.

6. The relevant care period is between 28 December 2019 and 27 March 2020. The first date is the date provided by Mr Munson to the CSA as being the commencement of overnight care. The second date is the date of the new care determination made by the CSA and subsequently revoked by the objections officer. This means that during the relevant care period there were a total of 91 available care nights. The tribunal can give consideration to other care periods but only insofar as they assist in an accurate determination of the care percentages during the relevant care period. Under section 54A of the Act, when determining the actual percentage of care provided by each parent during the relevant period, the tribunal must focus on the amount of overnight care.

7. The tribunal is satisfied, on the evidence of both parties, that, during the relevant period, care of the five children was not provided in accordance with a court order or formal parenting plan. This means that the tribunal is not required to determine an interim care period under sections 51 and 53A of the Act. Rather, if the tribunal is satisfied that the existing determination, as made by the objections officer, must be revoked under section 54F, the tribunal must apply section 50 of the Act which requires a care determination based on actual care.

8. Ms Munson’s evidence is that there was contact but not overnight care in late December 2019.  The tribunal is of the view that it is more likely than not that overnight care commenced in January 2020, which is the first month of Mr Munson’s care calendar. 

9. Mr Munson’s 2020 care calendar advises that he had overnight care of the children for 12 nights in January, two nights in February and four nights in March.  This is a total of 18 nights, a care percentage of 19% of the available care.

10. The tribunal notes that the hearing papers contain, at folios 73-97, a detailed submission, supported by text message evidence, made by Ms Munson to the objections officer in response to the care dates claimed by Mr Munson.  In summary, Ms Munson’s submission was to the effect that the care arrangements during 2020 were ad hoc, because of Mr Munson’s work requirements.  Ms Munson submitted that Mr Munson had a total of 11 nights care of the older children in January but only nine nights care of [Child 5].  Ms Munson submitted that Mr Munson had two nights care of all five children in February and two nights care of all children in March.  This is a total of 15 nights care of the four older children, a care percentage of 16% of the available care and a total of 13 nights care of [Child 5], a care percentage of 14% of the available care.

11. This means that, if the tribunal was to treat the relevant care period as an episode of ad hoc care, the evidence of both parties indicates that Mr Munson provided at least 14% (regular) care of all five children.  However, if the tribunal was to regard this period as part of a regular pattern of care, it would have to be considered in the context of the broader pattern.  In particular, the tribunal would have to regard January as atypical since, under the pattern claimed by Mr Munson, January is the only month in the year when there is a period of care extending beyond two or three days.

12. The tribunal has considered additional submissions and/or evidence provided by both parties.  The tribunal is not satisfied that, overall, the evidence establishes a mutually agreed pattern of care.  While there is evidence of an intent to establish a pattern, there is also evidence that a pattern was difficult to establish in practice.  This means that Mr Munson’s care of the five children is best regarded as ad hoc and it is up to both parties to keep the CSA informed about how changes in the ad hoc arrangements made between the parents impact on the care percentages.

13. It follows that the amount of care provided by Mr Munson during the relevant care period must take into account the actual nights as a percentage of the available nights rather than trying to contextualise these nights within a broader pattern of care that might be expected over the course of a year.

14. The tribunal has already established that the evidence of both parties indicates that during the relevant care period, Mr Munson provided at least 14% of the available care. This is at variance with the original 4% care determination for Mr Munson and results in a change in cost percentage under section 55C of the Act. It follows that the original 4% determination must be revoked under section 54F of the Act and a new care percentage determined. The actual percentage is disputed but regardless of which evidence is preferred there is no impact on the cost percentage. For the sake of simplicity, the tribunal determines, under section 50 of the Act that, for the relevant period, Ms Munson had 85% of the care of the five children and Mr Munson had 15% of their care.

15. As Mr Munson did not object to the original decision until more than 28 days had elapsed from notification of this decision, the tribunal can only give effect to the decision before Mr Munson’s objection if there were special circumstances that prevented him from objecting within 28 days.  The objections officer found that Mr Munson was notified electronically at the time of the original decision and did not accept Mr Munson’s evidence that he did not receive notification within 28 days. 

16. The tribunal discussed this matter with Mr Munson who told the tribunal that he was not in the practice of checking his electronic mailbox and was not aware of the CSA’s decision until he received the hard copy of the decision.  This was after the 28 days had elapsed.  He was not aware of any reasons why the hard copy might have taken so long to reach him.  The tribunal agrees with the objections officer that there were no special circumstances that prevented Mr Munson from lodging a timely objection.  Even if the hard copy of the decision was late reaching him, electronic communication is standard practice and it was incumbent upon Mr Munson to monitor his portal, especially since he could reasonably expect communication of a decision that he had himself initiated.

17. It follows that, under section 87AA of the Child Support (Registration and Collection) Act 1988, the change of care percentage has effect for Mr Munson from 24 June 2020 (his date of objection).

DECISION

The tribunal sets aside the decision under review and, in substitution, determines that, from 28 December 2019, Mr Munson had 15% of the care of his five children and Ms Munson had 85% of their care.  The date of effect of the change of care percentage is 24 June 2020.