O’Hagan and O’Hagan (Child support)

[2022] AATA 2100

O’Hagan and O’Hagan (Child support) [2022] AATA 2100 (7 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022985

APPLICANT:  Mr O’Hagan

OTHER PARTIES:  Child Support Registrar

Mrs O’Hagan

TRIBUNAL:Member Y Webb

DECISION DATE:  07 June 2022

DECISION:

1. The Tribunal sets aside the decision under review and in substitution decides that the care percentages in relation to the children are 88% to Mrs O’Hagan and 12% to Mr O’Hagan from 30 March 2020 (applied to the child support assessment from 12 October 2020).

2. The Tribunal refuses to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act1988 and therefore its decision in (1) above has effect from 20 December 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the cost percentages - discretion exercised to revoke existing percentage of care determinations and make new determinations – decision under review set aside and substituted – date of effect of tribunal’s decision – whether special circumstances exist – tribunal decides not to make a determination under subsection 95N(2)

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. This review is about the percentages of care for a care period in relation to the two daughters (the children) of Mr O’Hagan and Mrs O’Hagan.  The children are now aged 9 and 7.

2. Mrs O’Hagan contacted the Services Australia (Child Support Agency) on 12 October 2020 to make an application for a child support assessment for the children.

3. At that time Mrs O’Hagan advised that she had 100% care of the children.  On 23 October 2020 Mrs O’Hagan updated her advice and advised that Mr O’Hagan was having some daytime care of the children.   She estimated Mr O’Hagan’s care of the children to be approximately 10% and her own care to be approximately 90%.

4. On 9 November 2020 the Child Support Agency records state that Mr O’Hagan spoke with a Child Support Agency officer.  Mr O’Hagan disputes that he spoke with a Child Support Agency officer on that date.

5. On 11 November 2020 a Child Support Agency officer accepted Mrs O’Hagan’s application for a child support assessment and decided that the care of the children was 90% to Mrs O’Hagan and 10% to Mr O’Hagan from 30 March 2020 and applied to the assessment from 12 October 2020.

6. On 9 December 2020, Mr O’Hagan objected to the decision. 

7. On 13 April 2021, an objections officer disallowed Mr O’Hagan’s objection and affirmed the original decision.

8. On 20 December 2021, Mr O’Hagan requested review by the Administrative Appeals Tribunal (the Tribunal).

9. Both parents attended the hearing on 7 June 2022 by way of telephone conference and both gave evidence on affirmation.

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

2. Care decisions are made pursuant to Division 4, sections 48 to 54L of the Assessment Act.

3. The legislation requires the Tribunal to determine a percentage of care for a parent based on the pattern of care that a parent has had or is likely to have for a child in a care period.  The pattern can be established either according to a ‘care arrangement’ (such as court orders or a parenting plan) or the actual care that is taking place.  Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law.

4. In relation to the care period in this matter it is evident from the Child Support Agency papers that on 6 January 2021 a new care decision was made that Mrs O’Hagan had 58% care and Mr O’Hagan 42% care of the children from 4 December 2020.  That decision is not under review.  Therefore in this matter the care period is from 30 March 2020 (applied to the assessment from 12 October 2020) until 3 December 2020.

5. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has, or is likely to have, a pattern of care. It relevantly provides – in circumstances where it is a new application and there is no existing percentage of care – as follows:

   50Determination of percentage of care—responsible person has had etc. a pattern of care for a child

   (1)      This section applies if:

   (a)      either of the following applies:

   (i)       an application is made under section 25 or 25A for a parent to be   assessed in respect of the costs of the child;   

   …

   (ii)       (not relevant)

   and the Registrar is satisfied that a responsible person for the child 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; or

   (not relevant)

   (2)     The Registrar must determine the responsible person’s percentage of care for the child    during the care period.

   …

6. Section 54A provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period. 

7. Mrs O’Hagan stated that from 30 March 2020 Mr O’Hagan had not had any overnight care of the children.  However, she agreed that he had had some daytime care of the children.  She stated that in the relevant care period Mr O’Hagan had hours of care every Wednesday and Thursday from 3 pm to 7.30 pm; every second Friday from 3 pm to 7.30 pm; every second Saturday from 9 am to 8 pm; and every second Sunday from 9 am to 7 pm. 

8. Mr O’Hagan disputed that the care was as described by Mrs O’Hagan.  He contended that his care was 50% and Mrs O’Hagan’s was 50% in accordance with a parenting plan.  He claimed the parenting plan was being followed. He provided an undated two-week pattern in which he claimed that Mrs O’Hagan had 184 hours of care (out of a possible 336 hours per fortnight) and that he had 152 hours of care.  He claimed that Mrs O’Hagan had 54.7% care and he had 45.3% care of the children.  He provided  statements from his parents dated 21 May 2021.   His father stated that Mr O’Hagan has care of the children “on Wednesday, Thursday, every second Friday and every second weekend”.  His mother stated that Mr O’Hagan:

   collects them from school every Wednesday.  They are in his care Wednesday, Thursday nights and every second Friday, Saturday night, Sundays he has them for tea, bath and returns them after this.

9. Mrs O’Hagan denied that the parenting plan was being followed.  She stated that the parenting plan was never finalised or implemented and she had never signed it.  She stated that it wasn’t workable because the children would not stay overnight with Mr O’Hagan.  Mrs O’Hagan was adamant that Mr O’Hagan never provided 50% care and she stated that his care was ad hoc and sporadic.  She stated that during the COVID-19 lockdowns her mother was home schooling the children as she (Mrs O’Hagan) is an essential worker.  Mrs O’Hagan acknowledged that there was a change of care in December 2020 but in the care period under review the only hours of care which Mr O’Hagan had in terms of a pattern was the care described above in paragraph 16.  Mrs O’Hagan provided statutory declarations from her parents   Her father declared that “a conservative estimate of time they (the children) would go with [Mr O’Hagan] would be (on) average 10%”.  He referred to him and his wife home schooling the children in 2020 and to caring for them for a majority of time in the school holidays.  Mrs O’Hagan’s mother endorsed the declarations of her husband.

10. The Tribunal considered the evidence and contentions provided by Mr O’Hagan and Mrs O’Hagan.  There is not agreement about the care arrangements but the Tribunal needs to make a determination based on the likely pattern of care that was occurring in and was expected to occur in the care period.

11. Mr O’Hagan was critical of the Child Support Agency when it decided that his care was 10% and Mrs O’Hagan’s was 90%. He stated that he was never consulted about the care of the children and that the decision was made without his input and without appropriate evidence. That may have been the case. However, through his objection and his application to the Tribunal he has now had the opportunity to explain his position and his perspective on the care arrangements. In relation to the parenting plan upon which Mr O’Hagan relied, the Tribunal finds that no valid parenting plan exists. The Assessment Act provides in section 5 that “parenting plan” has the meaning given by section 63 of the Family Law Act 1975.  Subsection 63C(1) states that a parenting plan is an agreement that is in writing; and is or was made between the parents of a child; and is signed by the parents of the child; and is dated and deals with a matter or matters mentioned in subsection (2).  Mrs O’Hagan stated that the draft parenting plan which Mr O’Hagan provided to the Child Support Agency was never finalised and the care within the draft was never established; she never signed  and dated it.  Mr O’Hagan acknowledged that Mrs O’Hagan never signed it.  The Tribunal finds there is no valid parenting plan because the document which Mr O’Hagan proffered does not meet the definition of a parenting plan.  Hence, the actual care is the determinant of the care of the children.

12. Mr O’Hagan initially argued that the care of the children was 50% to each of the parents based on the parenting plan.  The Tribunal has found that no valid parenting plan existed and therefore the 50/50 care based on that document was not applicable.

13. On 26 November 2020 Mr O’Hagan provided a two-week cycle of care which attributed Mrs O’Hagan with 184 hours of care out of a possible 336 hours of care in a fortnight and himself with 152 hours of care per fortnight.  He calculated that therefore Mrs O’Hagan had 54.7% care and he had 45.3% care.

14. The Tribunal was not persuaded that this accurately described the actual care which was occurring in the care period under review.  The Tribunal accepted Mrs O’Hagan’s statements, supported by her parents’ declarations (which it also accepted), that Mr O’Hagan was not having any overnight care at that time and the only care with any pattern to it was the care on every Wednesday and Thursday from 3 pm to 7.30 pm; every second Friday from 3 pm to 7.30 pm; every second Saturday from 9 am to 8 pm; and every second Sunday from 9 am to 7 pm and the Tribunal so finds.  The Tribunal is satisfied that at all other times the children were in the care of Mrs O’Hagan.

15. The Tribunal has carefully considered the statements from Mr O’Hagan’s parents and it accepts that these were provided in good faith.  However, they appear to more accurately reflect the care after the care change in December 2020 rather than the care which was occurring between March 2020 and 3 December 2020.

16. In relation to the care that was actually occurring the Tribunal calculated that rather than 10%, Mr O’Hagan’s care of 43.5 hours per fortnight was 12% (43.5 divided by 336 = 12.9%) and Mrs O’Hagan’s was 88%.

17. In accordance with section 54D of the Assessment Act the lower percentage is rounded down and the higher percentage is rounded up.

18. In the administrative formula, a parent’s notional contribution to the costs of the children by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. The Tribunal’s determination will result in Mrs O’Hagan having a care percentage of 88% and a cost percentage of 100% and Mr O’Hagan having a care percentage of 12% and a cost percentage of nil for the care period commencing 30 March 2020 applied to the child support assessment from 12 October 2020.  In relation to the cost percentage, this determination is the same as the objections officer’s decision.

Tribunal time limits

1. Mr O’Hagan applied to the Tribunal for review of the objection decision of 13 April 2021 on 20 December 2021. His application was lodged more than eight months after the objection decision. A copy of the objection decision was sent online to Mr O’Hagan on 13 April 2021.  The Child Support Agency papers include notes of a telephone contact from Mr O’Hagan on 19 April 2021 enquiring about the outcome of his objection.  The notes record that the officer advised that a letter was sent online on 13 April 2021 which showed as “unread”.  The officer explained that the objection was disallowed and he read the letter to Mr O’Hagan.  The officer recorded that he explained about the AAT being the next step if Mr O’Hagan was not happy with the outcome of the objection.  Within the papers is a screen shot showing that the objection outcome letter was sent on 13 April 2021 online and its status was described as “unread”. The Tribunal is satisfied that Mr O’Hagan received the objections officer’s decision.  He stated at the hearing that he read the decision. 

2. The Tribunal had regard to section 95N of the Registration and Collection Act, which applies to this circumstance. Subsection 95N(1) states that if the decision under review is a decision on an objection to a care percentage decision, and the application for review was made more than 28 days after notification of the original decision, the new decision has effect, or is to be taken to have effect, on and from the day on which the application was made. In Mr O’Hagan’s case, this means that the decision of 12% care to him and 88% to Mrs O’Hagan takes effect from 20 December 2021 (unless subsection 95N(2) applies).

3. Subsection 95N(2) provides that if the Tribunal is satisfied that there are special circumstances that prevented Mr O’Hagan making his application for review by the Tribunal within 28 days then other time limits may apply.

4. The Tribunal asked Mr O’Hagan whether there were any special circumstances which prevented him from applying for review within 28 days of being notified of the objection decision.  Mr O’Hagan stated that he had no understanding of the process.  He said that he received multiple letters from the Child Support Agency and he didn’t understand what his appeal rights were.  He stated that he wanted someone to explain it to him.  Mr O’Hagan confirmed that he would have read the letter of 13 April 2021 but he did not really understand the implications of it until he spoke at a later time with another Child Support Agency officer.

5. The Tribunal acknowledges, as Mr O’Hagan explained, that he found it difficult to understand some of the letters he received. The Tribunal accepts that he did not  understand the implications of lodging an application more than 28 days after receiving notice of the objection decision.   However, Mr O’Hagan did not promptly seek advice to ensure that he was fully aware of his options.  In addition, the covering letter from the objections officer clearly explains what to do if he didn’t agree with the decision.  The letter advises that if he thought the decision was wrong he could ask the AAT to review it.  The letter also states that he “must do this within 28 days from the date he receives (the objection officer’s) letter”.  On balance, the Tribunal does not consider that the circumstances were special to the extent that they prevented Mr O’Hagan from lodging his application for review within 28 days of notification of the decision of 13 April 2021. 

6. Consequently, the Tribunal concludes that the decision of 88% care to Mrs O’Hagan and 12% to Mr O’Hagan takes effect from 20 December 2021. As a subsequent care decision was made from 4 December 2020 this care decision of 88% care to Mrs O’Hagan and 12% care to Mr O’Hagan has been superseded by the subsequent decision and therefore it has no practical impact on the child support assessment. The effect of this decision is the same as the decision of the objections officer. 

DECISION

1. The Tribunal sets aside the decision under review and in substitution decides that the care percentages in relation to the children are 88% to Mrs O’Hagan and 12% to Mr O’Hagan from 30 March 2020 (applied to the child support assessment from 12 October 2020).

2. The Tribunal refuses to make a determination under subsection 95N(2) of Child Support (Registration and Collection) Act1988 and therefore its decision in (1) above has effect from 20 December 2021.