Overton and Jaynes (Child support)

[2024] AATA 3576

Overton and Jaynes (Child support) [2024] AATA 3576 (22 August 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/MC027540

APPLICANT:  Ms Overton

OTHER PARTIES:  Child Support Registrar

Mr Jaynes

TRIBUNAL:Member A Ryding

DECISION DATE:  22 August 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care of the children [Child 1], [Child 2] and [Child 3] should remain reflected as 50% to Ms Overton and 50% to Mr Jaynes from 7 February 2021.

The date of effect of this decision is 8 September 2023.

CATCHWORDS
CHILD SUPPORT – percentage of care – no change in pattern of care – existing determination of care not revoked – date of effect – 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

1. This is an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision of Services Australia – Child Support (Child Support) regarding the percentage of care attributable to each of the parents in this matter.

2. The applicant, Ms Overton, and one of the other parties to this application, Mr Jaynes, are the parents of three children, [Child 1], [Child 2] and [Child 3].

3. Ms Overton and Mr Jaynes have had a registered child support case since 1 September 2020. There are no written care arrangements between Ms Overton and Mr Jaynes. From 25 May 2019, care had been recorded as shared 50/50 by Ms Overton and Mr Jaynes (folio 218).

4. On 10 February 2021, Mr Jaynes contacted Child Support to report a change in care from 7 February 2021 (folio 34). Mr Jaynes said that he still had week on week off 50/50 care except for one week of school holidays, which Child Support calculated meant 189 nights to Mr Jaynes, plus seven nights in the Christmas holidays, meaning that Mr Jaynes had the children for 190 nights (that is, 52.05%).

5. On 11 February 2021, Child Support spoke to Ms Overton. Its file note records that Ms Overton agreed with that care change (folio 50).

6. On 11 February 2021, Child Support made a care determination to reflect that Ms Overton had care of the children 47% and Mr Jaynes 53%[1] from 7 February 2021, notified on 10 February 2021 (folio 47).

   [1] Rounded up in accordance with subsection 54D(1) of the Child Support (Assessment) Act 1989.

7. From 30 July 2021, Child Support collected the child support payable.

8. On 8 September 2023, Ms Overton objected to the care determination made on 11 February 2021 (folio 143).

9. On 27 January 2024, Child Support provided its objection decision (the Objection Decision) (folio 22) disallowing Ms Overton’s objection. Care remained 47% with Ms Overton and 53% with Mr Jaynes from 7 February 2021, notified on 10 February 2021.

10. On 20 February 2024, Ms Overton applied to the Tribunal for review of the Objection Decision.

11. On 14 August 2024, the Tribunal conducted a hearing in this matter by MS Teams audio. Ms Overton and Mr Jaynes participated in the hearing. Child Support did not participate and instead relied upon its documents.  

12. Before the Tribunal were hearing papers supplied by Child Support, numbered 1 to 244, and documents provided by Mr Jaynes numbered B1 to B20 (together, the hearing papers). Ms Overton and Mr Jaynes provided evidence on affirmation.

13. The Tribunal has had regard to all of the documents provided to it and the evidence provided by Ms Overton and Mr Jaynes. Reference below is made only to the documents and evidence relevant to this decision.

ISSUES

1. The child support scheme is intended to assist separated parents to take responsibility for the financial support of their children. It recognises that parents have a primary duty to maintain their children.[2]

   [2] Section 3 of the Assessment Act.

2. How child support is assessed by Child Support and provided by parents is governed by the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

3. Part 5 of the Assessment Act sets out the way in which the annual rate of child support payable by a parent for a child for each day in a child support period is to be calculated. A critical element of that calculation is each parent’s “percentage of care” for the child, which is to be determined under sections 49 to 54E of Subdivision B of Division 4 of Part 5 of the Assessment Act.

4. Determining the applicable percentage of care involves identifying the amount of time a parent is responsible for providing care for the child. This requires consideration of the percentage of care that the person is likely to have, or has had, of the child during the relevant care period. Each time the care provided by one or other parent changes, a new care period arises and Child Support must consider if there has been a change in the percentage of care and what the new percentage of care should be.

5. The issues for consideration in these applications are:

   ·      Has there been a change in care? If so,

   ·      Should the existing care percentage determinations be revoked and from when (if at all) should the revocation take effect?

   ·      What is the date of effect of this decision?

CONSIDERATION

1. The Tribunal’s role is confined to reviewing the decision under review, the Objection Decision dated 27 January 2024. Its role is not to examine the history of child care arrangements or any disputes between the parties, nor is it to adjudicate or comment on the quality of care provided to the children. Nothing in this decision should be taken as addressing any of those issues. Nor should it be taken as suggesting that either parent does not care for their children in the broader sense.

Issue 1: Has there been a change in care?

1. The term “care” is not defined in the Assessment Act or the Registration and Collection Act. Subsection 54A(1) of the Assessment Act allows the Child Support Registrar to determine actual care by reference to the number of nights the Registrar is satisfied the child was, or is likely to be, in the care of the person during the care period.

2. In the present case, Child Support considered care by reference to nights in care. This appears to the Tribunal to be the most appropriate approach in this matter and the Tribunal therefore uses nights in care.

3. A “care period”[3] is calculated from the day on which the actual care of a child changed and is stated in the Assessment Act to be “such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

   [3] Defined in subsection 5(1) of the Assessment Act to have the meaning given by paragraph 49(1)(a), subparagraph 49(1)(b)(ii), paragraph 50(1)(a) or subparagraph 50(1)(b)(ii).

23.  The Child Support Guide states that the care period will:

generally be a 12-month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12-month periods, unless otherwise advised.[4]

[4] The Child Support Guide is part of the Guides to Social Policy Law, a collection of publications issued by the Australian Government and designed to assist decision makers administering social policy law. It is persuasive but has no legislative force. However, the Tribunal should take into account government policy as long as it is not inconsistent with the provisions and objects of the relevant legislation: Re Drake and Minister for Immigration and Ethnic Affairs (no 2) [1979] AATA 179.

24.  It also states that in some situations a period longer than 12 months is appropriate; for example, where the parents have an arrangement in which the care of the child follows a recurring cycle over a period greater than 12 months.

1. In the present case, noting that the arrangements for each parent to have the children at Christmas appear to have been intended to take place on a year on/year off basis, the Tribunal finds that a 24 month care period is appropriate.

2. The care period is used only for assessing whether there is a pattern of care and, if there is, what that pattern is. It does not set the period over which the care assessment applies.

The evidence

1. The parties disagreed as to the reason for the notification of a change in care. Ms Overton told the Tribunal that she had been in conversations with Mr Jaynes in the period leading up to 11 February 2021 regarding Mr Jaynes taking their son [Child 2] to medical appointments as she was going back to work. She said she also believed that a higher percentage of care would assist Mr Jaynes in obtaining a higher rate of family tax benefit, given that she knew that he had financial issues. Ms Overton told Child Support on 1 November 2021 that she agreed to the higher percentage under duress (folio 91). Mr Jaynes disputed this in the hearing before the Tribunal.

2. Mr Jaynes told the Tribunal that he had been thinking for some time about notifying Child Support that care of the children was not on a 50/50 basis. He said that, as far back as 2019 and 2020, he had always taken the children additional days and that his weeks with the children comprised around 27 to 28 weeks. He has an acquired brain injury from a car accident and that impacts his thinking. He knew he could not go back to 2019 so he just made the care change date the day that he called Child Support. He said he had been short of money and realised that if he added up all the extra days (it would come to a significant amount).

3. The notification of care change on 10 February 2021 records Mr Jaynes informing Child Support that care was one week on/one week off 50/50 care except for one week in school holidays and seven nights at Christmas. It was on this basis that Child Support determined that Mr Jaynes had 53% care.

4. Ms Overton told the Tribunal that for the first three years after separation, they each had one week on/one week off, but with a verbal agreement to switch weeks over at the beginning of each new calendar year. This meant that Christmas would fall with each parent in alternating years. The year 2021 was the last time they switched in this way and they have kept on a week on week off basis since, with some flexibility for family events.

5. Ms Overton and Mr Jaynes disagreed about whether the additional days that Mr Jaynes took the children were part of a quid pro quo arrangement, with Ms Overton also having the children on additional days (as Ms Overton said), or actually comprised Mr Jaynes having a greater level of care (as Mr Jaynes said).

6. On 30 July 2021, Child Support approved Mr Jaynes’ application for Child Support to collect the child support payable by Ms Overton (folio 208).

7. On 4 October 2021, Ms Overton called Child Support to notify of a change in care, back to 50/50 from that date (folio 78). Child Support’s file note states:

   she said they had verbally agreed that she would allow him to reflect a slightly higher level of care because they have a special needs child and while she works he has more to do with the needs of that child. However she said the actual care was 50/50 and she would now like the care to reflect this level. She is not disputing the care from the time she agreed to accept this care level – she wants to lodge a new care change.

8. Ms Overton’s care change notification was made formally on 5 October 2021 (folio 81). Child Support’s file note states (verbatim):

   PP [Ms Overton] advised the care has always been week about (Monday to Monday, previously Sunday to Sunday), however earlier this year PP [Ms Overton] agreed to change the care so RP [Mr Jaynes] was able to collect more via FTB.

   >As of now PP [Ms Overton] has been cut from benefits as she does not have childen [sic] below the age of 8 in her care, however there has been no changes with the care

9. There were limited contemporaneous documents to assist the Tribunal in determining either actual care in the 24 months from 7 February 2021 or the pattern of care. Ms Overton provided a letter to Child Support dated 10 December 2023 (folio 164) which she told the Tribunal she prepared by going back through her calendar, what she remembered, emails and what she told the Tribunal was a “strange memory for dates”. That letter identifies dates when she said either she or Mr Jaynes collected the children early in 2021 and 2022, but does not provide a care calendar identifying what dates each parent had the children. Mr Jaynes agreed with some but not all of the entries for 2021.  Ms Overton also provided photographs (folio 167) and a one page screenshot that she said Mr Jaynes had provided to her (folio 180).

10. Mr Jaynes provided extracts from a care calendar that gave entries for 30 April 2021, 9 July 2021, 21 August 2021 and from 24 December 2021 to 3 January 2022 (folio 15). Some entries stated that he collected the children from school, some indicated that he had the children over Christmas 2021.

11. The contemporaneous evidence and the parties’ evidence to the Tribunal does not assist the Tribunal to determine the actual care within the 24 months from 7 February 2021 by reference to nights in care.

12. The Tribunal notes Ms Overton's evidence as to the reasons for notifying of a change in care but notes also that Ms Overton told the Tribunal that taking [Child 2] to his appointments did not provide any additional nights in care. The Tribunal therefore discounts this reason. The Tribunal notes Mr Jaynes’ evidence as regards the impact on his thought processes of his brain injury (and also notes that Ms Overton did not dispute the brain injury) but in the absence of medical evidence is unable to determine the extent to which the injury impacted Mr Jaynes’ decision making process in dealing with Child Support or on his recollections when giving evidence to the Tribunal.

13. On balance, the Tribunal is unable to find on the evidence before it that there was a change in the pattern of care on 7 February 2021. Although not free from doubt, the evidence supports a finding that the parties had an informal approach to care, and that care was generally week on and week off. The letter from Ms Overton and the care calendar extract from Mr Jaynes in particular give support to this. From time to time, one parent would take the children for additional nights. The fact that there may not have been an equal number of additional nights that each parent took the children does not detract from this. Both parties agreed that care did not actually change on 7 February 2021 (even if they did not agree on what that care was). Given this, and in the absence of contemporaneous evidence enabling the Tribunal to identify actual nights in care, the Tribunal is unable to find that the pattern of care changed on 7 February 2021, and therefore the percentage of care should remain 50% to Ms Overton and 50% to Mr Jaynes.

14. The Tribunal’s finding as regards the parties’ care percentages aligns with the care percentages in place prior to the notification by Mr Jaynes of a change in care on 10 February 2021.

Issue 2: Should the existing care percentage determinations be revoked and from when (if at all) should the revocation take effect?

1. As there is no change to the existing percentages of care, the Tribunal is not required to revoke those earlier care percentages.

Issue 3: What is the date of effect of this decision?

1. Under subsection 87AA(1) of the Registration and Collection Act, if an objection to a care percentage decision is lodged more than 28 days after notice of the care percentage decision was served, the date of effect of a decision allowing the objection is the date the objection was lodged.

2. In this case, the Tribunal finds that the care decision was made on 11 February 2021 and that Ms Overton was informed of the care decision by letter of the same date (folio 51). Ms Overton’s objection was made on 8 September 2023 (folio 143), which is more than 28 days later.

3. Subsection 87AA(2) gives Child Support (and therefore the Tribunal) the discretion to extend that 28 days for lodging an objection where there are special circumstances that prevented the person from lodging an objection within the 28 days. The Child Support Guide states,[5] as regards what it will consider “special circumstances”:

   The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from the date of the original decision. Some examples of special circumstances may include:

   ·the parent was seriously ill or had an accident that stopped them from lodging an objection

   ·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

   ·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

   ·the parent reasonably relied upon inaccurate or misleading information.

   [5] In section 4.1.8.

4. As noted above, Ms Overton lodged a care change notification, back to 50/50 care, on 5 October 2021 (folio 81). On 3 November 2021, Ms Overton appears to have sought to lodge an objection in relation to the care decision made on 11 February 2021 (folio 92) as a result of which Child Support deleted the pending care change made on 5 October 2021. The file note refers to Ms Overton’s intention to call the following day to lodge an objection.

5. However, the objection was not taken further by Ms Overton at that stage.

6. On 2 July 2023, Ms Overton notified Child Support of a change in care (folio 107). Child Support rejected that notification on 4 August 2023 on the basis that it sought a change in care for a past period (folio 122).

7. The Tribunal asked Ms Overton why she did not lodge her objection any earlier. She said that between work, life and the history between Mr Jaynes and her, she basically tried to get on with things. However, things came to a point last year where she had to take control of her life and situation. She said she was “aware and not afraid” and had learned a lot more about what her rights were and that is why she began the process again.

8. Mr Jaynes told the Tribunal that he understood that Ms Overton had large personal expenses and believed that this was motivating her actions. Ms Overton responded that she has large expenses but they all related to the children.

9. The Tribunal has considered the matter carefully but does not find that Ms Overton has raised matters that enable the Tribunal to determine there are special circumstances such that the time for lodging an objection to the 11 February 2021 care decision should be extended to 8 September 2023.

10. The consequence of this is the Tribunal finds that the date of effect of the Tribunal’s decision is the date that Ms Overton lodged her objection, 8 September 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that care of the children [Child 1], [Child 2] and [Child 3] should remain reflected as 50% to Ms Overton and 50% to Mr Jaynes from 7 February 2021.

The date of effect of this decision is 8 September 2023.