Ottley and Ottley (Child support)

[2021] AATA 1283

Ottley and Ottley (Child support) [2021] AATA 1283 (23 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC020357

APPLICANT:  Ms Ottley

OTHER PARTIES:  Mr Ottley

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  23 February 2021

DECISION:

The Tribunal:

(a)varies the care decision under review so that Ms Ottley is recorded as providing 57% care and Mr Ottley is recorded as providing 43% care to [Child 1] and [Child 2] from 10 January 2017; and

(b)decides to not make a determination pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, and consequently the variation referred to in (a) above takes effect from 2 December 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 varied – date of effect – whether there were special circumstances that prevented the application for review 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

1. Ms Ottley and Mr Ottley are the parents of two children, [Child 1] and [Child 2]. A child support case was registered in 2013 with what is commonly called the Child Support Agency or CSA. Ms Ottley was recorded as providing 60% care and Mr Ottley was recorded as providing 40% care to both children.

2. On 31 August 2015 the Federal Circuit Court made orders (“the Orders”) concerning the parents’ care of the children. Neither parent contacted the CSA about a possible change in care as a result of the Orders.

3. On 27 January 2017, Mr Ottley informed the CSA of a change in care from 10 January 2017. He stated that he would be providing two additional blocks of care in January 2017, each of six nights’ duration. On 10 February 2017 the CSA decided to record Ms Ottley as providing 57% care and Mr Ottley as providing 43% care with effect from 10 January 2017 (“the original decision”). On the same date the CSA wrote to each parent, informed them of the original decision, and informed them that they could object to that decision, in which case they should do so within 28 days.

4. On 4 January 2018, Mr Ottley objected to the original decision. On 17 April 2018 an objections officer made two decisions:

   ·    the original decision is varied so that Ms Ottley is recorded as providing 52% care and Mr Ottley is recorded as providing 48% care from 10 January 2017; and

   ·    the variation to the original decision has effect from 4 January 2018 (because Mr Ottley did not object within 28 days of being notified of the original decision, and there had not been special circumstances preventing him from objecting within 28 days).

5. On the same day the CSA wrote to each parent, informed them of the objections officer’s decisions, and informed them that they could seek further review by this Tribunal, in which case they should do so within 28 days.

6. On 2 December 2020, Ms Ottley applied to the Tribunal for review of the objections officer’s first decision. On 16 December 2020 the Tribunal Registry wrote to Mr Ottley and informed him of the time and date of the Tribunal hearing. On 17 December 2020, Mr Ottley phoned the Registry in relation to that letter. On 16 February 2021 the Registry sent an email to Mr Ottley reminding him of the hearing. On 22 February 2021 the Registry sent a text message to Mr Ottley reminding him of the hearing. On 23 February 2021, I phoned Mr Ottley at the scheduled hearing time. The call went to voicemail and I left a message reminding him of the hearing. I phoned him three more times during the next 15 minutes and each call went to voicemail. The hearing proceeded in Mr Ottley’s absence. Ms Ottley gave sworn evidence by conference phone.

7. The Orders provide that Mr Ottley’s general pattern of care will be governed by his work roster. Ms Ottley explained that Mr Ottley works at a [workplace] on a fly-in-fly-out basis. Mr Ottley provided the CSA with his work roster for 2017. It repeats on a 28-day cycle. One such cycle ran from 2 to 29 April 2017. Ms Ottley stated, and I accept, that Mr Ottley would have provided care on the following dates: 2, 3, 10, 11, 12, 19, 20, 21, 22, 28, 29 April 2017. More broadly, I find that Mr Ottley generally provided care for 11 nights every 28 nights, which equates to approximately 365 / 28 x 11 = ~143 nights of care per year. The Orders also provide that Mr Ottley will provide care “In Accordance with the father’s annual leave entitlement at work”, provided he gives notice to Ms Ottley and any block of care is not “more than two consecutive weeks unless agreed by the mother”. I questioned Ms Ottley about the holiday care that Mr Ottley had been likely, as at February 2017, to provide during 2017. Ms Ottley appeared reluctant to answer my questions on that issue, she questioned their relevance, and the answers she gave lacked precision. Doing the best I can in the circumstances, I find that Mr Ottley probably received four weeks, or 28 nights, of leave per year. In the ordinary course he would provide 11 nights of care every 28 nights, and it was likely that he would provide an additional 17 nights of care during his 28 nights of leave. For those reasons I find that when Mr Ottley contacted the CSA and advised it, in effect, that he would be providing care during his annual leave, his pattern of care was likely to equate to (143 + 17) / 365 = 43.8% care.

8. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Assessment Act”). Decision-makers are required to ascertain the care each parent has provided, and is likely to provide, during the relevant care period: sections 49 and 50 of the Assessment Act. Mr Ottley stated to the CSA that a new pattern of care commence on 10 January 2017 when he started providing holiday care. For the reasons stated above, I find that, as at February 2017 when the original decision was made, Mr Ottley had been likely to provide 43.8% care during the 365 days commencing on 10 January 2017. Percentages less than 50% are rounded down to the nearest whole number pursuant to section 54D of the Assessment Act. Mr Ottley promptly reported the change in care, and, subject to any delay by either parent in objecting to an original decision or in applying to the Tribunal for review of an objections officer’s decision, Ms Ottley would be recorded as providing 57% care and Mr Ottley would be recorded as providing 43% care to the children with effect from 10 January 2017.

9. As noted earlier, the CSA wrote to Ms Ottley on 17 April 2018 and notified her of the objections officer’s decision. At the hearing, Ms Ottley said she did not receive that letter. She said she moved house on three occasions “during that period”. When I asked her about the period to which she was referring, she replied: “In the last few years.” She was not forthcoming with further details. I asked her whether she had kept the CSA informed of her current postal address from time to time, and she replied: “I believe I would have.”

10. Ms Ottley was sent assessment notices on 10 July 2018 which stated that the rate of child support payable from 4 January 2018 was based on her 52% care of the children.

11. Ms Ottley was sent assessment notices on 12 July 2018 which stated that the rate of child support payable from 1 August 2019 was based on her 52% care of the children.

12. Ms Ottley was sent assessment notices on 28 July 2020 which stated that the rate of child support payable from 29 September 2019 was based on her 52% care of the children.

13. I asked Ms Ottley whether she had received those assessment notices. She explained that she does not have a good memory and she receives a lot of correspondence from Centrelink and the CSA. She was initially unsure whether she received the assessment notices. I referred her to a letter she wrote dated 13 October 2020 in which she stated: “My child support [sic] has not changed in six years, yet for some reason it has been changed to 52% to myself and [Mr Ottley] 48%.” Ms Ottley agreed that, at least as at 13 October 2020, she was aware of the decision to record her as providing 52% care and Mr Ottley as providing 48% care. She then appeared to infer that she must have at least received the assessment notices dated 28 July 2020.

14. When the letter notifying Ms Ottley of the objections officer’s decision was posted, the Child Support (Registration and Collection) Regulations 2018 had just come into force. Regulation 31 provided for the service of notices. Subregulation 31(2) stated:

    If service has been attempted by use of prepaid post, then, unless the contrary is proved, service will be taken to have been effected at the time when the notice or other communication would, in the ordinary course of the post, have arrived at the place to which it was addressed.

15. In the absence of any detailed evidence to the contrary, I find that the letter dated 17 April 2018 notifying Ms Ottley of the objections officer’s decisions was served on Ms Ottley in the ordinary course of the post, i.e. around the end of April 2018.

16. Section 95N of the Child Support (Registration and Collection) Act 1988 provides that, generally, if a person applies to the Tribunal for review of an objections officer’s care decision more than 28 days after being notified of the decision, and the Tribunal varies the decision, then the variation takes effect from the date on which the application for review was lodged. An exception applies if “there are special circumstances that prevented the application [for review] being made within [the 28 days]” of the notification. Ms Ottley stated that she did not receive the letter dated 17 April 2018. However, she stated that she believed she had kept the CSA informed of her current postal address from time to time. In the absence of any concrete evidence that might establish that the postal service was not operating properly when the letter dated 17 April 2018 was posted, I find that the letter was served on Ms Ottley in the ordinary course of the post, i.e. around the end of April 2018. The process for applying to the Tribunal for review of an objections officer’s care decision is remarkably simple: the application can be lodged over the phone. I am not persuaded that there were special circumstances that prevented Ms Ottley from applying to the Tribunal for review of the objections officer’s care decision within 28 days of being notified of that decision. The decision to record her as providing 57% care and Mr Ottley as providing 43% care therefore has effect from the date on which Ms Ottley applied to the Tribunal for review, which was 2 December 2020.

DECISION

The Tribunal:

(a)varies the care decision under review so that Ms Ottley is recorded as providing 57% care and Mr Ottley is recorded as providing 43% care to [Child 1] and [Child 2] from 10 January 2017; and

(b)decides to not make a determination pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, and consequently the variation referred to in (a) above takes effect from 2 December 2020.