Pendell and Pendell (Child support)

Case •

[2023] AATA 849

•

24 January 2023

Pendell and Pendell (Child support) [2023] AATA 849 (24 January 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024775; 2022/BC024788 and 2022/BC024796

APPLICANT:  Ms Pendell

OTHER PARTIES:  Child Support Registrar

Mr Pendell

TRIBUNAL:Member J Prentice

DECISION DATE:  24 January 2023

DECISIONS:

2022/BC024775: The Tribunal varies the decision under review such that:

  1. the existing percentage of care determination of 100% to Ms Pendell is revoked from 14 April 2021 and replaced with a new percentage of care determination of 10% applying from 15 April 2021; and

  2. the existing percentage of care determination of 0% to Mr Pendell is revoked from 5 February 2022 and replaced with a new percentage of care determination of 90% applying from 6 February 2022.

2022/BC024788: The Tribunal affirms the decision under review.

2022/BC024796: The Tribunal sets aside the decision under review and substitutes a new decision that section 87AA of the Child Support (Registration and Collection) Act 1988 applies as if the reference to 28 days in that subsection were a reference to a longer period extending to 16 August 2022.

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

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 affirmed

CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist – 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. As relevant to these applications, Ms Pendell and Mr Pendell are parties to a child support case registered with Services Australia – the Child Support Agency (the CSA) in relation to financial support to be provided for [Child 1] only (born November 2005) (the child). These applications concern decisions by the CSA about the recorded care for the child utilised in calculation of the child support liability.

  2. From 29 December 2020 the pre-existing percentages of care applying in the child support case for [Child 1] were 100% to Ms Pendell and 0% to Mr Pendell.

  3. On 6 February 2022 Ms Pendell contacted the CSA and advised a change to the care position of the child from 20 December 2021 to shared care of 50% each to her and Mr Pendell (the 6 February 2022 notification of a change in care).

  4. On 23 March 2022 Ms Pendell contacted the CSA and advised a further change to the care position of the child from 18 March 2022 to 100% care to her and 0% care to Mr Pendell (the 23 March 2022 notification of a change in care).

  5. On 30 April 2022 the CSA made the decision to refuse to revoke the existing care percentage determinations of 100% to Ms Pendell and 0% to Mr Pendell and decided not to apply new care percentage determinations of 50% to each parent (the decision in relation to the 6 February 2022 notification).

  6. On 30 April 2022 the CSA also made the decision to refuse to action Ms Pendell’s 23 March 2022 notification (the decision in relation to the 23 March 2022 notification). Notably, given the decision in relation to the 6 February 2022 notification to refuse to change the care percentage determinations from 100% to Ms Pendell and 0% to Mr Pendell to 50% to Ms Pendell and 50% to Mr Pendell, the care percentages of 100% to Ms Pendell and 0% to Mr Pendell remained in place in any event.

  7. On 12 August 2022 Mr Pendell objected to the 30 April 2022 decision of the CSA and stated that the care of the child was 100% to him from 15 April 2021 to 18 March 2022.

  8. On 16 August 2022 Ms Pendell objected to the 30 April 2022 decision of the CSA in relation to the 23 March 2022 notification.

  9. On 20 September 2022 the CSA allowed Mr Pendell’s 12 August 2022 objection and decided to revoke the pre-existing percentage of care determinations of 100% to Ms Pendell and 0% to Mr Pendell and decided to record percentage of care determinations of 0% to Ms Pendell and 100% to Mr Pendell from 15 April 2021. Mr Pendell lodged his objection more than 28 days after the CSA decision, however the CSA determined that there were special circumstances for Mr Pendell’s late objection with the result that the date of effect of Mr Pendell being recorded as having 100% care was 6 February 2022, the date of notification and the date of effect of Ms Pendell being recorded as having 0% care was 15 April 2021, the date of the change in care.

  10. On 20 September 2022 the CSA also allowed Ms Pendell’s 16 August 2022 objection and decided to revoke the then pre-existing percentage of care determinations of 0% to Ms Pendell and 100% to Mr Pendell and decided to record percentage of care determinations of 100% to Ms Pendell and 0% to Mr Pendell from 18 March 2022. Ms Pendell lodged her objection more than 28 days after the CSA decision, however the CSA noted that she had not sought for special circumstances for late lodgment to be considered and therefore the new percentages of care for each parent only applied from 16 August 2022.

  11. On 21 September 2022 Ms Pendell lodged an application with the Tribunal seeking an independent review of the CSA’s first objection decision of 20 September 2022 (that is the decision allowing Mr Pendell’s 12 August 2022 objection) (application 2022/BC024775).

  12. On 5 October 2022 Ms Pendell lodged an application with the Tribunal seeking an independent review of the CSA’s second objection decision of 20 September 2022 (that is the decision allowing Ms Pendell’s 16 August 2022 objection) (application 2022/BC024788).[1]

    [1] Although Ms Pendell lodged an application with the Tribunal in relation to this objection decision, it was apparent that Ms Pendell did not dispute the outcome of this objection decision that she be recorded as having 100% care and Mr Pendell be recorded as having 0% care from 18 March 2022. Rather she objected to the date of effect of 16 August 2022 for those percentages of care, the subject of a third application to the Tribunal.

  13. On 5 October 2022 Ms Pendell lodged an application with the Tribunal seeking an independent review of the CSA’s decision stating that she objected to the date of effect of 16 August 2022 and claimed special circumstances as she had not received advice from the CSA about their decision (application 2022/BC024796).

  14. In lodging the abovementioned objections to the CSA’s decisions, Ms Pendell stated:

    I contacted Child Support in March 2022 to advise that my son [Child 1] had moved in with me on a full time 100% care basis. His father corroborated this story, however Child Support apparently sent me a letter on the 30th April advising that “the information provided does not require a change in my child support assessment”. I did not see an email regarding this letter so had no idea that it was sent.

    A few months after there was an objection from [Child 1]’s father (Mr Pendell) around the care percentage for [Child 1] from April 2021 to March 2022. [Mr Pendell] advised that he had [Child 1] 100% of the time during this period. This wasn’t entirely true, I did have him for about 10% of this time and about 50% of the time between December 2021 and February 2022. However as [Mr Pendell] has been mentally unwell and had moved back to Victoria to be with his family to get well, I was happy to agree so that the Cjhld Support debt that had accrued over this time would be waived.

    The Child Support Agency contacted me in August to discuss [Mr Pendell]’s objection further. At no time was there a discussion about a letter that I hadnt responded to back in April. So when I received a letter last week from Child Support advisisng that no child support would be made payable to me from the period of March to August 2022 I was left shocked. The decision was made to only begin payments from August 2022 onwards. It seems that that conversaiton I had with them about [Mr Pendell]’s objection is also the date that has been used for my objection to the letter sent to me in April. I imagine this is because we discussed all care arrangements at this time, however I didn’t realise that I was objecting at the time or that I was late in doing so. As I was receiving child support payments from Merv I assumed everything was fine. However these payments must have been the arrears from 2021 that they were collecting and paying to me.

    Anyhow I have now been left with a debt of just over $4,000. I do understand that there may be a small debt to repay but given that Child Support for reasons unknown have determined that I am not eligible for child support from March to August, this has created incredible financial stress. I cannot afford on my wages to repay this amount and don’t believe I should have to given that both parents agreed to the care arrangements as these are the fact of the case.

  15. The hearing of the application was held on 6 December 2022. Ms Pendell and Mr Pendell both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.

  16. In considering the application, the Tribunal took into account the oral evidence of Ms Pendell and Mr Pendell and the documentary material provided by the CSA to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 155). Copies of all documents were exchanged with each party.

  17. There are a number of background circumstances of understandable importance to both Ms Pendell and Mr Pendell which were raised in evidence which are not relevant to the issues before the Tribunal. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

RELEVANT LEGISLATION

  1. 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) Act1988 (the Registration and Collection Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

  2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

  3. Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

  4. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless the CSA is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

  5. The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

  6. Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or section 50 of the Act.

  7. The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

  8. However, in certain circumstances, pursuant to section 51, parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing; that is, an interim care determination may apply.

  9. The Registration and Collection Act provides a mechanism for parents who are dissatisfied with a care percentage decision to seek a review of the decision by lodging an objection. However, if an objection concerning care percentages is lodged more than 28 days after notice of the care percentage decision is given, section 87AA of the Registration and Collection Act provides that the date of effect in relation to a variation to or new determination is the date of the objection. The date of effect of a different decision on objection can only be backdated if there are special circumstances which prevented the person from lodging their objection within 28 days.

ISSUES

  1. It follows that the issues to be determined by the Tribunal are as follows:

    (a)    Are the pre-existing percentage of care determinations for Ms Pendell and Mr Pendell to be revoked in relation to each of the 6 February 2022 and 23 March 2022 change of care notifications? And, if so,

    (b)    What are the new percentage of care determinations for Ms Pendell and Mr Pendell in relation to each of the notifications? And,

    (c)    What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

CONSIDERATION

  1. Exhibit 1 records the following relevant interactions between Ms Pendell and the CSA and Mr Pendell and the CSA:

    (a)    On 6 February 2022 – Ms Pendell contacted the CSA and advised that the child has been “between both houses; so is essentially living with both of us 50%” since 20 December 2021

    (b)    The CSA wrote to Mr Pendell on 8 February 2022 and advised that they had received advice from Ms Pendell that care of [Child 1] had changed to 50% to each parent from 20 December 2021 and asked that he contact the CSA to discuss the change before the assessment was changed. (Exhibit 1, page 47)

    (c)    On 11 February 2022 – Mr Pendell contacted the CSA and stated that he did not agree that there had been 50%/50% care since December 2021 and that he had had “full-time care since April/May 2021”. (Exhibit 1, page 51)

    (d)    On 12 August 2022 – Mr Pendell told the CSA that he had had 100% care of the child from April 2021 to March 2022. (Exhibit 1, page 80)

    (e)    On 16 August 2022 – Ms Pendell advised the CSA that in the period 15 April 2021 to 18 March 2022 Mr Pendell would have had 90% care and she would have had 10%, but she did not keep any records. She further stated that Mr Pendell moved interstate in March 2022 (and that she then had 100% care). (Exhibit 1, page 82)

    (f)     On 19 August 2022 – Mr Pendell confirmed that Ms Pendell had had 100% care of the child since 18 March 2022. Mr Pendell conceded that 90% care to him and 10% care to Ms Pendell may be more accurate for the period April 2021 to March 2022. He further stated that the child has now moved in with his aunt but he was not sure of the date this occurred and that he would provide further details once he had spoken with the aunt. (Exhibit 1, pages 86 and 87)

  2. Ms Pendell and Mr Pendell gave evidence and submissions at the hearing including as follows:

    (a)    Ms Pendell told the Tribunal that there has been a further change in the care position from 2 August 2022. The Tribunal noted that any such subsequent change in care, after the notifications the subject of these applications, is not a matter under consideration at today’s hearing.

    (b)    Ms Pendell informed the Tribunal that until 14 April 2021 the child was in her 100% care. Mr Pendell does not dispute this.

    (c)    Ms Pendell advised the Tribunal that from 15 April 2021 the child moved in with Mr Pendell and was in his 100% care until December 2021. Mr Pendell agrees with this.

    (d)    The area of dispute between the parties is the percentage of care arrangements for the period 21 December 2021 to 17 March 2022.

    (e)    Both parties informed the Tribunal that they do not keep any records of when the child stays with them.

    (f)     The child is a 17-year-old teenage boy and both parents are flexible with his arrangements and allow him to choose where and when he stays. They also noted that he tends to sleep during the day and be active in the evening.

    (g)    Mr Pendell and Ms Pendell discussed with the Tribunal the challenging behaviour of the child which contributed to erratic care arrangements.

    (h)    Following lengthy discussion with the Tribunal about the child’s living arrangements, Mr Pendell told the Tribunal that care was likely 85% to him and 15% to Ms Pendell for the period 15 April 2021 to 17 March 2022; however there was no pattern to the care arrangements and the times the child returned to Ms Pendell were random and ad hoc. Ms Pendell would not resile from her position that the child was in shared 50%/50% care from 21 December 2021 to 17 March 2022.

    (i)   In response to questions from the Tribunal Ms Pendell advised she was late in lodging change in care claims with the CSA as the child kept changing his mind and she kept waiting until she thought he was settled in his arrangements.

    (j)   With respect to the delayed objection to the CSA decision of 30 April 2022, Ms Pendell informed the Tribunal that she did not receive the letter the CSA claim they sent her at the time of the decision and her subsequent conversations with the CSA were very confusing as all the matters were mixed in together and she was never certain which issue they were discussing at any given time.

  3. Having had regard to all of the evidence the Tribunal considers that the appropriate care period in relation to the 6 February 2022 notification of a change in care is 12 months from 15 April 2021 and the appropriate care period in relation to the 23 March 2022 notification of a change in care is 12 months from 18 March 2022. The evidence of the parents is conflicting particularly with respect to the care arrangements from 21 December 2021 to 17 March 2022. Neither parent kept records of the care during that period. Notably, however, at a time more contemporaneous to the dates in question, on 16 August 2022 and 19 August 2022 respectively, as has already been noted, Ms Pendell advised the CSA that in the period 15 April 2021 to 18 March 2022 Mr Pendell would have had 90% care and she would have had 10% and Mr Pendell indicated that 90% care to him and 10% care to Ms Pendell was likely more accurate for the period April 2021 to March 2022. The Tribunal considers the consistent statements by Ms Pendell and Mr Pendell in August 2022 the best evidence of the care that was actually occurring and finds that care of the child occurring from 15 April 2021 was the equivalent of 10% to Ms Pendell and 90% to Mr Pendell.

  1. The Tribunal finds that Ms Pendell had 100% care of the child and Mr Pendell had 0% care of the child from 18 March 2022; and that Ms Pendell notified the CSA within the required time.

Issue 1 – Are the pre-existing percentage of care determinations for Ms Pendell and Mr Pendell to be revoked in relation to each of the 6 February 2022 and 23 March 2022 change of care notifications?

The 6 February 2022 notification of a change in care

  1. Section 54G provides where a person has at least regular care (that is at least 14%) of a child during a care period under a recorded percentage of care determination and the other parent has more than 0% care, the child was being made available for care by the other person, the other person has notified the change of care within a period that is reasonable in the circumstances and the first person has no care or a pattern of care less than regular care, then both recorded percentage of care determinations must be revoked. The pre-existing percentages of care prior to 15 April 2021 were 100% to Ms Pendell and 0% to Mr Pendell. The Tribunal has found that Ms Pendell’s care reduced to 10% from 15 April 2021. However the Tribunal is not satisfied that that change in care was notified within a reasonable period. Section 54G of the Act therefore does not apply in relation to the 6 February 2022 notification of a change in care.

  1. Subsection 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, section 54G does not apply and section 51 does not apply or no longer applies.

  2. Section 55C contains a table that is used to work out a person’s 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. 10% care to Ms Pendell and 90% care to Mr Pendell does not correspond with the pre-existing percentage of care determinations recorded by the CSA prior to 15 April 2021 of 100% to Ms Pendell and 0% to Mr Pendell. A change in care to 10% to Ms Pendell and 90% to Mr Pendell would change each parent’s cost percentage pursuant to the table in section 55C.

  2. Section 51 does not apply. The existing percentages of care of 100% to Ms Pendell and 0% to Mr Pendell are therefore required to be revoked pursuant to section 54F.

The 23 March 2022 notification of a change in care

  1. The Tribunal has found that Ms Pendell had 100% care of the child and Mr Pendell 0% care, from 18 March 2022. 100% care to Ms Pendell and 0% care to Mr Pendell does not correspond with what will then be the pre-existing percentage of care determinations recorded by the CSA following implementation of the Tribunal’s decision in relation to the 6 February 2022 notification of a change in care of 10% to Ms Pendell and 90% to Mr Pendell. A change in care to 100% to Ms Pendell and 0% to Mr Pendell would change each parent’s cost percentage pursuant to the table in section 55C.

  2. Section 51 does not apply.

  3. The existing percentages of care prior to 18 March 2022 of 10% to Ms Pendell and 90% to Mr Pendell are therefore required to be revoked pursuant to section 54F.

Issue 2 – What are the new percentage of care determinations for Ms Pendell and Mr Pendell?

The 6 February 2022 notification of a change in care

  1. Percentage of care determinations are required pursuant to subsection 50(2) of the Act. The Tribunal determines that Ms Pendell’s percentage of care for the child from 15 April 2021 is 10% and Mr Pendell’s percentage of care for the child from 15 April 2021 is 90% as outlined in the above consideration.

The 23 March 2022 notification of a change in care

  1. Percentage of care determinations are required pursuant to subsections 49(2) and 50(2) of the Act. The Tribunal determines that Ms Pendell’s percentage of care for the child from 18 March 2022 is 100% and Mr Pendell’s percentage of care for the child from 18 March 2022 is 0% as outlined in the above consideration.

Issue 3 – What is the date of effect of the revocation of the pre-existing percentage of care determinations and the date of effect of the new percentage of care determinations?

The 6 February 2022 notification of a change in care

  1. Pursuant to paragraph 54F(3)(b) of the Act, as the change in care was notified by Ms Pendell on 6 February 2022, more than 28 days after the Tribunal has found the change occurred on 15 April 2021, there are different dates of effect for the revocation of the parties’ respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care of 0% recorded for Mr Pendell takes effect the day before the notification of the change of care, that is on 5 February 2022 and revocation of the pre-existing percentage of care of 100% recorded for Ms Pendell takes effect the day before the change of care day, that is on 14 April 2021.

The 23 March 2022 notification of a change in care

  1. Pursuant to paragraph 54F(3)(a), as the change in care was notified by Ms Pendell on 23 March 2022, within 28 days after the Tribunal has found the change occurred on 18 March 2022, revocation of the then pre-existing percentage of care of 10% recorded for Ms Pendell and the then pre-existing percentage of care of 90% recorded for Mr Pendell takes effect the day before the change of care day, that is on 17 March 2022.

  1. It is then necessary to determine from when new percentage of care determinations are to apply.

The 6 February 2022 notification of a change in care

  1. Pursuant to section 54B of the Act, new percentage of care determinations apply from the application day, that is the day immediately after revocation of the previous percentage of care determinations. Therefore a new percentage of care determination of 90% to Mr Pendell applies from 6 February 2022 and a new percentage of care determination of 10% to Ms Pendell applies from 15 April 2021.

  2. The CSA’s decision of 30 April 2022 in relation to the 6 February 2022 notification of a change in care was sent to the parties under cover of a letter dated 30 April 2022.

  3. Mr Pendell told the CSA that at the time of the care decision he “was going through a really tough time and struggling with [his] mental health … as confirmed and acknowledged by [Ms Pendell]” and he was receiving treatment for his mental health.

  4. Chapter 4.1.8 of the Guide notes that consideration of special circumstances should involve the question of whether the decision to extend the period in which to lodge the objection will prejudice the other parent and whether the applicant “rested on their rights” (that is, did the person objecting make any efforts to communicate to the Department that they disputed the care decision?). Examples of special circumstances are given as including illness or accident stopping an objection from being lodged, suffering a personal trauma such as a death in the family, communication difficulties or reasonably relying upon inaccurate or misleading information.

  5. Taking all of these circumstances into account, the Tribunal is satisfied that in the particular circumstances of this matter there were special circumstances which prevented Mr Pendell from objecting to the CSA decision within 28 days of notification. On balance, the Tribunal finds it appropriate to extend the period in which Mr Pendell can lodge his objection to 16 August 2022 in accordance with subsection 87AA(2) of the Registration and Collection Act.

The 23 March 2022 notification of a change in care

  1. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is the day immediately after revocation of the previous percentage of care determinations. Therefore new percentage of care determinations of 100% to Ms Pendell and 0% to Mr Pendell apply from 18 March 2022.

  2. The CSA’s decision of 30 April 2022 in relation to the 23 March 2022 notification of a change in care was sent to the parties under cover of a letter dated 30 April 2022. Ms Pendell objected to that decision on 16 August 2022, more than 28 days after the 30 April 2022 letter.

  3. Ms Pendell told the Tribunal that she has no recollection of ever receiving the correspondence. Further, she said that her conversations with the CSA were very confusing as all the matters were mixed in together and she was never certain which issue they were discussing at any given time.

  4. Chapter 4.1.8 of the Guide notes that consideration of special circumstances should involve the question of whether the decision to extend the period in which to lodge the objection will prejudice the other parent and whether the applicant “rested on their rights” (that is, did the person objecting make any efforts to communicate to the Department that they disputed the care decision?). Examples of special circumstances are given as including illness or accident stopping an objection from being lodged, suffering a personal trauma such as a death in the family, communication difficulties or reasonably relying upon inaccurate or misleading information. The Tribunal accepts in the circumstances that the various letters and various contacts with the CSA were likely confusing for Ms Pendell.

  5. Taking all of these circumstances into account, the Tribunal is satisfied that in the particular circumstances of this matter there were special circumstances which prevented Ms Pendell from objecting to the CSA decision within 28 days of notification. On balance, the Tribunal finds it appropriate to extend the period in which Ms Pendell can lodge her objection to 16 August 2022 in accordance with subsection 87AA(2) of the Registration and Collection Act.

Conclusion

The 6 February 2022 notification of a change in care

  1. The 20 September 2022 objection decision in relation to the 6 February 2022 notification of a change in care was to revoke the pre-existing percentage of care determinations of 100% to Ms Pendell and 0% to Mr Pendell and to record percentage of care determinations of 0% to Ms Pendell and 100% to Mr Pendell from 15 April 2021 with the objections officer finding there were special circumstances for the late objection by Mr Pendell.

  2. The Tribunal has made the same decision as the objections officer except that the new percentages of care determined by the Tribunal are 10% to Ms Pendell and 90% to Mr Pendell. The Tribunal will therefore vary the decision under review in relation to application 2022/BC024775.

The 23 March 2022 notification of a change in care

  1. The 20 September 2022 objection decision in relation to the 23 March 2022 notification of a change in care was to revoke the then pre-existing percentage of care determinations and to record percentage of care determinations of 100% to Ms Pendell and 0% to Mr Pendell from 18 March 2022.

  2. As this is the same decision as that of the objections officer in relation to the percentages and the date the care changed, the decision under review will be affirmed in relation to application 2022/BC024788. In relation to the date of effect of the care determinations, the Tribunal has made a different decision to that of the objections officer, finding that special circumstances prevented Ms Pendell from objecting to the CSA decision within 28 days of notification so as to extend the period in which Ms Pendell can lodge her objection to 16 August 2022 in accordance with subsection 87AA(2) of the Registration and Collection Act with the effect that there are no date of effect limitations in relation to this care decision. The Tribunal will therefore set aside the decision under review in relation to the date of effect and substitute a new decision in relation to application 2022/BC024796.

Summary

  1. In summary, as a result of the Tribunal’s decisions, the following percentages of care will be recorded:

Period % care to Ms Pendell % care to Mr Pendell
Prior to 15 April 2021 100% 0%
15 April 2021 10% 0%
6 February 2022 10% 90%
18 March 2022 100% 0%

  1. The period between 15 April 2021 and 5 February 2022 when both percentages of care do not total 100% is due to the late notification of the 15 April 2021 change in care.

OTHER MATTERS

  1. As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, and the CSA then is tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision. As noted earlier in these Reasons, the CSA’s records show that on 19 August 2022, Mr Pendell advised that the child has now moved in with his aunt but he was not sure of the date this occurred and that he would provide further details once he had spoken with the aunt. Any such subsequent contact with the CSA and notification of a subsequent change in care is not the subject of the applications before the Tribunal but the parents are at liberty to follow up with the CSA in relation to subsequent changes of the care not the subject of these applications.

DECISIONS

2022/BC024775

The Tribunal varies the decision under review such that:

  1. the existing percentage of care determination of 100% to Ms Pendell is revoked from 14 April 2021 and replaced with a new percentage of care determination of 10% applying from 15 April 2021; and

  2. the existing percentage of care determination of 0% to Mr Pendell is revoked from 5 February 2022 and replaced with a new percentage of care determination of 90% applying from 6 February 2022.

2022/BC024788

The Tribunal affirms the decision under review.

2022/BC024796

The Tribunal sets aside the decision under review and substitutes a new decision that section 87AA of the Child Support (Registration and Collection) Act 1988 applies as if the reference to 28 days in that subsection were a reference to a longer period extending to 16 August 2022.


Key Legal Topics

Areas of Law

  • Family Law

  • Administrative Law

Legal Concepts

  • Jurisdiction

  • Procedural Fairness

  • Remedies

  • Statutory Construction

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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G v Minister for Immigration and Border Protection [2018] FCA 1229