Nielsen and Guthrie (Child support)

Nielsen and Guthrie (Child support) [2019] AATA 5111 (2 September 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS: 2019/PC016698
2019/SC016607

APPLICANT: Miss Nielsen
OTHER PARTIES: Child Support Registrar
Mr Guthrie

TRIBUNAL:Member M Martellotta
DECISION DATE: 02 September 2019
DECISION:
2019/PC016698

The Tribunal sets aside the care percentage objection decision under review and, in substitution, decides that Miss Nielsen provided 100% care and Mr Guthrie provided 0% care of the child as from 15 December 2016.

2019/SC016607

The tribunal’s decision does not have the effect of varying or substituting the determination to which the care percentage decision relates. The new care determination is to be applied to the child support assessment as of 31 January 2017. (This restores the original decision.)

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – date of effect provisions - 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

Miss Nielsen and Mr Guthrie are the parents of the child born on [date]. This review is about a decision made by the Department of Human Services – Child Support (the Department) to change the determination of care in relation to the child.
On 15 March 2017 the Department decided to change the care determination to reflect that as from 15 December 2016 Miss Nielsen had 100% care of the child.
Mr Guthrie objected to that decision on 17 April 2019. A Department objection officer on 17 May 2019 decided to partly allow the objection by substituting the original decision with a decision that Miss Nielsen had 100% care of the child as from 6 January 2017. The objection officer also decided that as Mr Guthrie had not lodged his objection application within 28 days of the original decision and as there were no special circumstances which prevented him from so doing, the change would apply form the date of his objection (17 April 2019).
Miss Nielsen lodged applications seeking review of these decisions on 27 May 2019. The tribunal convened a hearing on 15 August 2019. Miss Nielsen attended by conference telephone and provided evidence under affirmation. Mr Guthrie did not attend the hearing.[1] The tribunal decided to proceed without taking oral evidence from Mr Guthrie.
[1] The tribunal contacted Mr Guthrie by phone, he stated words to the effect that he had just got off a plane when asked if he intended to participate in the hearing Mr Guthrie disconnected the call.
The Department provided documents relevant to their decision (261 pages). Miss Nielsen also provided documents A1-A38. The tribunal deferred making a decision so as to obtain further information from the Department (C1-C2).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1989 (the RC Act).
Child support legislation is interpreted by the Department with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but, provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it. [2]
[2] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
The issues which arise in this case are:

Should the existing determination of percentage of care be revoked and replaced?
Should a new determination of a percentage of care be made? If so, what is the percentage of care under the new determination? From when should it apply?

CONSIDERATION

Section 50 of the Act requires the Department to determine a person's percentage of care where a person has had, or is likely to have a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.
Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out based on the number of nights of care. A new percentage of care can be determined by the Child Support Agency whenever the care of a child has changed and pursuant to sections 54F, 54G or 54H of the Act the existing care determinations have been revoked.
At hearing Miss Nielsen told the tribunal that she was seeking review because prior to Mr Guthrie lodging his objection the care decision was 100% correct but because of his objection the care recorded by the Department is now ‘all wrong’.
Miss Nielsen told the tribunal there was a change in care from 15 December 2016 and that from that date she had 100% care of the child. She said that prior to that date she had been exercising care in accordance with Family Court orders dated 20 May 2016 whereby she had 22% care and Mr Guthrie had 78% care. However there was a change in that arrangement whereby following a dispute between the parents, Mr Guthrie told her to take over care of the child. From that point on she had 100% care of the child and this was confirmed in new Family Court orders on 30 January 2017. The tribunal notes that according to the Department records and as confirmed at hearing, Mr Guthrie was sentenced to two years imprisonment as from 11 February 2017.
A review of the Department records shows that there have been at different times changes in the care determination in place for the child. On 31 January 2017 the tribunal finds that Miss Nielsen contacted the Department and advised that there had been a change in care and that since 15 December 2016 the child had been in her full time care. According to Department records at the time of that advice the care determination in place was as per the 20 May 2016 court orders – namely that Miss Nielsen had 22% care and Mr Guthrie 78% care.
The Department attempted to contact Mr Guthrie to discuss the change in care (the Department was informed by Miss Nielsen that he was in prison). On 15 March 2017 the Department changed the care determination to reflect that Miss Nielsen had 100% care of the child from 15 December 2016 but with effect from 31 January 2017 (being the date of notification of the change in care).[3] The Department advised both parties of the change in care determination.
[3] This is because notification of the change in care occurred more than 28 days from 15 December 2016.
It appears that during the period of his imprisonment Mr Guthrie contacted the Department on various occasions to query assessment letters he had received and he also lodged applications with the Department. Despite this it was not until 17 April 2019 that Mr Guthrie lodged an objection to the care decision that had been made by the Department on 15 March 2017 – this objection appears to have been motivated (according to Department notes) by a Centrelink debt that Mr Guthrie had been assessed to repay due to the change in care. In his objection he stated that the change in care did not occur until 17 January 2017.
It appears to the tribunal that Miss Nielsen’s account of events has remained consistent. Her evidence as given to the Department at the time of the change in care; subsequently as part of the objection lodged by Mr Guthrie and then again to the tribunal has not altered. Namely that she was exercising care pursuant to pre-existing orders when due to a dispute between the parents, Mr Guthrie told her to take care of the child and that since 15 December 2016 she has had 100% care.
The tribunal is first required to consider whether the existing care determination must be revoked and if so decide what the new determination is for each parent. As noted the legislation requires a percentage of care for a parent to be determined on the pattern of care that a parent has had or is likely to have for a child in a care period. This pattern of care can be established either according to a care arrangement or the actual care that is taking place.
The tribunal was satisfied that at the time Miss Nielsen advised of a change in care on 31 January 2017 there was an existing determination in place pursuant to section 50 of the Act that Miss Nielsen had 22% care and Mr Guthrie had 78% care of the child. The tribunal is also satisfied that there was a change in care that occurred on 15 December 2016 and that since that date the child has been in Miss Nielsen’s full time care. Whilst that change in care was not in accordance with the May 2016 court orders in place at that time, the tribunal is satisfied on the evidence and finds that Mr Guthrie did not take any action to enforce those orders and that to the contrary he advised Miss Nielsen that she could resume full time care of the child. For these reasons this is not a matter in which it is appropriate to make an interim care determination. As noted, by the time of notification, new Court orders reflecting the change in care had been made.
A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care of a child that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made (section 54F of the Act).
In this case the change in care which took place on 15 December 2016 meant that Miss Nielsen’s care increased from 22% to 100% and Mr Guthrie’s care reduced from 78% to 0%, this results in a change in the relevant cost percentage for the responsible person.
The question then is when does the revocation of the existing care determination take effect? The tribunal has found the change in care took place on 15 December 2016. Miss Nielsen advised the Department of the change on 31 January 2017 a period more than 28 days and for this reason the existing care determination is to be revoked the day before that notification namely 30 January 2017.[4]
[4] Subsection 54F(2) of the Act
Having revoked the determination the tribunal is required to make a new care determination. In this matter the tribunal concluded that the new care determination to be made pursuant to sections 49 and 50 of the Act is that Miss Nielsen has 100% care and Mr Guthrie has 0% care.
Section 54B of the Act sets out the date of effect of the new determinations of percentage of care. The percentage of care applies to each day in a child support period on and from the “application day”. In accordance with those provisions, the application day for the new determinations of percentage of care is the day after the revocation of the existing determination. The tribunal has revoked the existing determinations with effect from 30 January 2017 the new determination will apply from 31 January 2017.
The tribunal notes that Miss Nielsen also sought review of the Department’s objection decision regarding a finding of no special circumstances and date of effect in relation to Mr Guthrie’s objection. As noted the Department partly allowed Mr Guthrie’s objection by determining that the relevant date on which care changed was 6 January 2017. Because the objection was partly allowed, the Department further determined that because Mr Guthrie’s objection was more than 28 days from the date of decision, and as there were no special circumstances which may have prevented him from making an earlier objection then the change would apply from 17 April 2019 being the date of his objection[5]
[5] Subsection 87AA(1) of the RC Act
In this matter as the tribunal’s decision in effect restores the Department’s original decision, the provisions as applied by the Department upon partly allowing Mr Guthrie’s objection cease to have any application. The relevant date of effect of the new determination is 31 January 2017.

DECISION
2019/PC016698

The tribunal sets aside the care percentage objection decision under review and, in substitution, decides that Miss Nielsen provided 100% care and Mr Guthrie provided 0% care of the child as from 15 December 2016.

2019/SC016607

[2019] AATA 5111

2 September 2019

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction

Appeal