O’Cawley and Milnes (Child support)

O’Cawley and Milnes (Child support) [2023] AATA 829 (10 February 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC024528 and 2022/SC025007
APPLICANT:  Mr O’Cawley
OTHER PARTIES:  Child Support Registrar
Ms Milnes

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 10 February 2023
DECISION:

2022/SC024528

(a) The Tribunal sets aside the decision under review and, in substitution, decides that Mr O’Cawley provides 14 per cent care and Ms Milnes provides 86 per cent care of [Child 1] with the care period commencing from 23 March 2018; and

(b) The Tribunal determines, pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, that subsection 95N(1) of that Act applies as if the reference to 28 days in that subsection was a reference to a longer period such that Mr O’Cawley’s application for review in this matter was lodged within that period (with the consequence being the date of effect of the Tribunal’s decision in (a) above is 6 May 2022).

2022/SC025007

The Tribunal sets aside the decision under review and, in substitution, decides there is no requirement for a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decision – late application for review - whether there were special circumstances that prevented the application for review being lodged in time - special circumstances exist - tribunal decides to make a determination under subsection 95N(2)

CHILD SUPPORT – percentage of care – date of effect provisions – no requirement to make determination – decision 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

This review is about the percentage of care determinations for Mr O’Cawley and Ms Milnes in respect of their child [Child 1] (born January 2016). Mr O’Cawley and Ms Milnes are the parents of two children, however, this matter relates to [Child 1] only.
On 4 May 2018, following an application by Ms Milnes, a new child support case was registered by the Child Support Agency with the liability commencing from 23 March 2018.
The Child Support Agency also made the decision to record the level of care under the assessment as Mr O’Cawley having 14 per cent care and Ms Milnes having 86 per cent care of [Child 1] from 17 December 2017 but effective from 23 March 2018.
On 6 May 2022 Mr O’Cawley objected to this decision and on 30 June 2022 the Child Support Agency allowed the objection in part and made the decision to reflect that Mr O’Cawley provides 28 per cent care and Ms Milnes provides 72 per cent care from 17 December 2017 (the objection decision).
As the Child Support Agency determined there were no special circumstances preventing Mr O’Cawley from lodging his objection within the stipulated timeframe, the objection decision was applied to the assessment from 6 May 2022, being the date Mr O’Cawley submitted his objection, rather than an earlier date (the date of effect decision).
On 23 August 2022 Mr O’Cawley applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision as it related to the care of [Child 1] and on 7 September 2022 Mr O’Cawley applied for a review of the date of effect decision.
The Tribunal conducted a hearing into the applications on 19 January 2023. Mr O’Cawley and Ms Milnes gave evidence on affirmation by Microsoft Teams audio. The Child Support Agency provided the Tribunal and the parties with papers relevant to the care matter (527 pages) and the date of effect matter (458 pages).
On 18 January 2023 Mr O’Cawley provided the Tribunal with additional evidence in relation to these matters. At hearing Mr O’Cawley confirmed this additional evidence was largely already contained in the papers received from the Child Support Agency and also related to later care arrangements not before the Tribunal. As a result, and in accordance with the Child Support Review Directions given under section 18B of the Administrative Appeals Tribunal Act 1975, this additional evidence was not taken into consideration.

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 1988 (the R&C Act).
The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.
If a new application is made for a parent to be assessed in respect of the costs of a child and the parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (sections 49 and 50 of the Act).
The issues which arise in this case are:
· what is the percentage of care each parent has for [Child 1]; and
· from what date should any care decision take effect?

CONSIDERATION

Mr O’Cawley told the Tribunal that when the child support assessment started, care of [Child 1] had been arranged by verbal agreement between the parents. Mr O’Cawley said he was providing care of two nights a week and this pattern of care was subsequently formalised in interim court orders dated 8 April 2019.
Mr O’Cawley said that under these interim orders he had care in a fortnightly cycle with care in week one from 11:00 am Sunday until 7:00 pm Tuesday and care in week two from 9:00 am on Friday until 7:00 pm on Sunday. Mr O’Cawley reiterated that care under the interim orders simply reflected the care that was already taking place when the assessment commenced from 23 March 2018.
The Tribunal notes in evidence a copy of interim orders issued by the Family Court Of Australia on 8 April 2019. These confirm that Mr O’Cawley was to have care of [Child 1] of four nights per fortnight with the pattern of care as described by Mr O’Cawley.
Mr O’Cawley argued that although he was providing care of two nights a week, being 104 nights a year, he felt hours of care would be a more accurate way of reflecting his care.
Mr O’Cawley informed the Tribunal that as handover was at 7:00 pm this amounted to him having considerably more care of [Child 1]. Mr O’Cawley pointed out that he was working from home at the time and so spent the whole day with [Child 1], who was then 2 years old, before arranging his dinner and getting him ready for bed. Mr O’Cawley said Ms Milnes would simply pick [Child 1] up, take him home to her place and put him to bed. Mr O’Cawley said this amounted to nearly an entire extra day he spent caring for [Child 1] when measured in hours.
Ms Milnes told the Tribunal when she applied for the new child support case Mr O’Cawley was providing care of only one night a week. She said [Child 1] would stay with Mr O’Cawley from Sunday morning around 11:00 am and she would collect him on a Monday evening. Ms Milnes said, to be fair, Mr O’Cawley would also spend all day Tuesday with [Child 1].
Ms Milnes agreed this pattern of care was arranged verbally between the parents, however, she said this changed around late May 2018 when interim court orders were first issued. Ms Milnes said it was only then Mr O’Cawley started having care of four nights per fortnight. She said she had notified the Child Support Agency but was advised there would be no change in care because the care Mr O’Cawley was providing was still regular care and there was no change in the amount of child support Mr O’Cawley was required to pay.
The Tribunal notes in the objection decision it is recorded that on 29 April 2019 Ms Milnes advised the Child Support Agency that care of [Child 1] had changed with Mr O’Cawley providing care of 104 nights from 1 June 2018. This is equivalent to care of four nights a fortnight.
Ms Milnes said when she collected [Child 1] on a Monday evening he was not always ready for bed. She added that she would quite often need to bath [Child 1] and put on his pyjamas when he got home. Ms Milnes said, nonetheless, she was comfortable with hours of care being considered if that was fairer given Mr O’Cawley was initially providing overnight care on a Sunday as well as care for a full day on Monday and a full day on Tuesday each week.
Mr O’Cawley submits that at the time the child support assessment commenced he was providing care of [Child 1] of four nights a fortnight, or 104 nights a year, based on a verbal agreement between the parents. Mr O’Cawley has stated this pattern of care was later confirmed in the interim court orders dated 8 April 2019. Ms Milnes disagrees and has told the Tribunal that when she applied for a child support assessment Mr O’Cawley was providing care of one night a week. Ms Milnes has also said this pattern of care changed from around late May 2018 in accordance with other court orders and it was only then that Mr O’Cawley began providing care of [Child 1] of four nights a fortnight.
The Tribunal is satisfied that an application for a child support assessment for [Child 1] was made by Ms Milnes on 23 March 2018 and accepted by the Child Support Agency on 4 May 2018.
A care determination is based on the care a parent has provided or is likely to provide for the child in a care period. The scheme, by its nature, may often be prospective. A pattern of care remains in place unless, ordinarily, either parent notifies of a change in care.
Given the completely conflicting views of the parents the Tribunal cannot be satisfied that Mr O’Cawley was providing care of [Child 1] of 104 nights a year. The Tribunal is unable to find, based on the evidence provided, that such a pattern of care was in place when the child support assessment commenced. In this case the Tribunal is of the view that Mr O’Cawley was providing care of at least 52 nights a year and Ms Milnes was providing care of at least 313 nights from 23 March 2018. The Tribunal considers it more likely, based on the evidence of the parents at hearing, that care of [Child 1] changed shortly after the child support assessment commenced. The Tribunal notes that on 6 September 2018 the Child Support Agency made the decision to reflect that Mr O’Cawley provides 28 per cent care and Ms Milnes provides 72 per cent care of [Child 1] from 3 June 2018.
Even if the Tribunal were to accept the argument put by Mr O’Cawley that he was providing care of 104 nights a year, or 28 per cent care, when the assessment commenced this would make no difference to the amount of child support Ms Milnes is entitled to receive. Care of 14 per cent and care of 28 per cent remain in the regular care bracket and under the child support scheme Mr O’Cawley would be assessed to pay the same amount of child support regardless.
Mr O’Cawley has also indicated, given the amount of additional care he was providing for [Child 1] during the day, that care would best be calculated according to hours of care.
While the number of nights a person cares for a child is the preferred method of measuring a parent’s percentage of care, there are occasions when care can be measured other than in nights. The ‘Child Support Guide’, at 2.2.1, provides some guidance in relation to measuring care other than in nights. It states:
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.
In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.
Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.
Ms Milnes agrees that Mr O’Cawley was providing care of [Child 1] from around 11:00 am on a Sunday morning until 7:00 pm on a Monday evening and then all day Tuesday until 7:00 pm. This is equal to care of approximately 40 hours per week, or 23 per cent care, when measuring care in hours. This level of care remains in the regular care bracket.
Even if the Tribunal were to accept the argument put by Mr O’Cawley that he was providing care of four nights a fortnight when the assessment commenced and this care involved handover of [Child 1] at 7:00 pm, this pattern of care, when measured in hours would still be in the regular care bracket.

New care percentage decision

The Tribunal is satisfied, based on the circumstances of this case, that care should be calculated on the basis of overnight care in accordance with the preferred method in the Act.
The Tribunal finds that Mr O’Cawley provides 14 per cent care of [Child 1] and Ms Milnes provides 86 per cent care of [Child 1] from 23 March 2018.

Date of effect of new care percentage decision

The Tribunal must also consider the date of effect of its care decision. An objection to a care percentage decision does not have to be lodged within 28 days, however, if it is lodged outside the 28-day period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the R&C Act). The Child Support Agency may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days were a reference to such longer period as determined to be appropriate.
Where an objection to a care percentage decision is lodged outside the timeframe and the objection is disallowed, subsection 87AA(1) does not apply and subsection 87AA(2) therefore has no relevance.
In this case the Child Support Agency allowed the objection in part and subsequently refused to make a determination under subsection 87AA(2). Mr O’Cawley has also applied for a review of the date of effect decision made by the Child Support Agency. The Tribunal has found differently and instead determined the percentages of care that were first applied when the child support assessment commenced are correct. The requirement to consider the implications of the late objection made by Mr O’Cawley, in effect, falls away.
Section 95N of the R&C Act establishes the date of effect of a Tribunal decision to set aside a care percentage decision.
Mr O’Cawley applied to the Tribunal on 23 August 2022 for a review of the objection decision made by the Child Support Agency on 30 June 2022. The Tribunal is satisfied Mr O’Cawley was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 30 June 2022. Given his application to the Tribunal was not within 28 days of receiving notice of the objection decision, the date of effect of any new decision by the Tribunal is the date Mr O’Cawley applied for review.
The Tribunal may extend the 28 days if there are special circumstances that prevented Mr O’Cawley from applying for a review within this period. While the R&C Act does not define special circumstances, the Child Support Guide at 4.1.8 provides some clarification. It states the circumstances must be “sufficiently special for the applicant to receive the benefit of an extension”.
In determining an application for review, in the interests of consistency in decision making, the Tribunal would ordinarily apply such policy if it is not inconsistent with the Act.
Mr O’Cawley told the Tribunal the sale of the family home took place towards the end of June 2022. Mr O’Cawley said he was required to pack up the house at short notice and was also focussed on searching for new accommodation. Mr O’Cawley said he was unable to access papers relevant to child support matters easily and added that it was a difficult time for him emotionally. Mr O’Cawley pointed out that his application was only a few weeks late.
Ms Milnes acknowledged the family home was sold around the end of June 2022. Ms Milnes said she nonetheless felt Mr O’Cawley would have had enough time to deal with child support matters as he had not been working. She said she was unaware of other circumstance which may have caused a delay in the application made by Mr O’Cawley.
Mr O’Cawley was approximately 26 days late in seeking a review of the objection decision by the Tribunal. The Tribunal accepts it may have taken him a short time to access information relating to the objection decision given the significant disruption associated with moving home and finding new accommodation for his family.
The Tribunal finds there were special circumstances preventing Mr O’Cawley from applying for review within the timeframe prescribed. Accordingly, the Tribunal will extend the 28-day period and its decision is effective from 6 May 2022 (the date Mr O’Cawley lodged his objection).
This makes no difference to the amount of child support payable by Mr O’Cawley as the level of care he provides remains with the regular bracket irrespective of the date of effect of the decision by the Tribunal. The Tribunal is also conscious that, under a separate care decision, the Child Support Agency found that Mr O’Cawley provides 28 per cent care of [Child 1] and Ms Milnes provides 72 per cent care from 3 June 2018 (notified on 20 August 2018).

DECISION

2022/SC024528

2022/SC025007

[2023] AATA 829

10 February 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Appeal

Statutory Construction