Pittman and Riordan (Child support)

[2019] AATA 564

Pittman and Riordan (Child support) [2019] AATA 564 (5 February 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC015311

APPLICANT:  Mr Pittman

OTHER PARTIES:  Child Support Registrar

Mrs Riordan

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  05 February 2019

DECISION:

(a)The Tribunal sets aside the decision under review and, in substitution, decides that Mr Pittman provides 39 per cent care and Mrs Riordan provides 61 per cent care of [Child 1] and [Child 2] from 7 February 2018.

(b)The Tribunal declines to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 26 October 2018.

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 set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decision – whether there were special circumstances that prevented the application for review being lodged in time - special circumstances do not exist - tribunal refuses to make a determination - the date of effect of the tribunal’s decision is the date the application for review was lodged

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 review is about a change to the percentage of care determinations for Mr Pittman and Mrs Riordan in respect of the children [Child 1] and [Child 2].

2. Mr Pittman and Mrs Riordan are the parents of [Child 1] (born January 2004) and [Child 2] (born October 2007) and Mr Pittman is the parent liable to pay child support under the assessment.

3. From 27 January 2015 the child support assessment reflected Mr Pittman having 42 per cent care and Mrs Riordan having 58 per cent care of [Child 1] and [Child 2].

4. On 7 February 2018 Mrs Riordan advised the Department of Human Services, Child Support (the Child Support Agency) of a change of care stating that she provides nine nights per fortnight care and Mr Pittman provides five nights per fortnight care of [Child 1] and [Child 2] from November 2017.

5. On 27 February 2018 the Child Support Agency made the decision to reflect that Mrs Riordan provides 65 per cent care and Mr Pittman provides 35 per cent care of [Child 1] and [Child 2] from 29 November 2017 but with effect from 7 February 2018.

6. On 28 February 2018 Mr Pittman objected to this decision and on 29 June 2018 the Child Support Agency allowed the objection in part and made the decision to reflect that Mrs Riordan provides 62 per cent care and Mr Pittman 38 per cent care of the children from 29 November 2017 but with effect from 7 February 2018 (the objection decision).

7. On 26 October 2018 Mr Pittman applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection decision.

8. The Tribunal conducted a hearing into the application on 5 February 2019.  Mr Pittman and Mrs Riordan gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (190 pages).  Additional documents were received from Mrs Riordan prior to the hearing (B1‒B12) and a copy was distributed to the parties.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. 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.

3. Where a 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 (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what the likely care is thereafter.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. The issues which arise in this case are:

   ·       has there been a change in the pattern of care for [Child 1] and [Child 2] which requires existing percentages of care to be revoked and new care determinations to be made; and if so,

   ·       from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Pittman told the Tribunal that his care of [Child 1] and [Child 2] followed court orders which allowed for care of five nights per fortnight during school term plus half the school holidays.  Mr Pittman said the court orders were finalised on 18 January 2018, however, initial orders were in place on 29 November 2017.  He said this was confirmed in an email exchange between the parents’ respective lawyers.

2. Mr Pittman explained that the initial orders outlined the arrangements for care during school term.  The parents then returned to court to clarify holiday care and the final orders were stamped on 18 January 2018.  He said prior to these final orders, holiday care was dealt with slightly differently although it was the intention of the parents to have shared care.  Mr Pittman said as a result during the December 2017-January 2018 holiday period he had care of 21 nights and Mrs Riordan had care of 24 nights rather than 50-50 care.

3. Mr Pittman said he believed the Child Support Agency should have made two separate care decisions.  The first from 29 November 2017 until the court orders were stamped on 18 January 2018 and the second from 18 January 2018 going forward.  Mr Pittman said he felt the objection decision made by the Child Support Agency was incorrect as it took into consideration a period of holiday care prior to the orders being finalised and stamped.

4. Mr Pittman acknowledged that following his preferred approach to care may make little, if any, difference in the level of care he had of [Child 1] and [Child 2] during this period.

5. Mrs Riordan said she agreed that care under the court orders was nine nights a fortnight to her and five nights a fortnight to Mr Pittman during school term plus half the school holidays for each parent.  She said Mr Pittman commenced his five nights on 29 November 2017 after the court hearing concluded.  Mrs Riordan said the court orders were not revisited, apart from a clarification, and were stamped on 18 January 2018.

6. Mrs Riordan reiterated it was her view the new orders were adhered to from 29 November 2017.  She said the date the orders were stamped was irrelevant as this did not change anything and nor did it influence the care percentage in any way.

7. Mrs Riordan told the Tribunal it was agreed the Christmas holidays in 2017-18 would be shared to best suit the children although it was the intention to have 50-50 care during this time.  Mrs Riordan said this did not work out exactly as planned as she had care of 24 nights during this holiday period which was slightly more than 50-50 care.  Mrs Riordan said this was because Mr Pittman had declined the additional make-up care she offered.

8. The Tribunal notes in evidence that both parents have provided care calendars outlining their care of the children.  Mr Pittman said he believed his care calendar was correct except for the holiday period in March 2018 when he missed some care.  Mrs Riordan said the dates in the calendar provided by Mr Pittman were a best-case scenario and not based on actual care.  She agreed she had additional care of five nights from 7-12 March 2018 as Mr Pittman was unavailable to care for the children during this period.  Mrs Riordan said her care calendar for the 12 months commencing from 29 November 2017 showed actual care for this period which was consistent with the objection decision made by the Child Support Agency. 

9. Mrs Riordan told the Tribunal that care during the school holiday period was complicated by the fact that [Child 1] and [Child 2] attended different schools so that their holidays did not exactly align.  She said the parents had worked out a plan for the holidays which would eliminate any conflict and followed the 50-50 care as set out in the court orders.

10. The Tribunal notes that [Child 1] attends [School 1] in Alice Springs and [Child 2] attends [School 2] in [a town].  The Tribunal also notes in evidence that Mrs Riordan has provided a spreadsheet of care for the 12 months from 29 November 2018 which shows care of 222 nights or 61 per cent to her and care of 143 nights or 39 per cent to Mr Pittman.  This equates to the level of care Mr Pittman believes he should have as per the court orders.  This Tribunal accepts this is the level of care for both children as set out in the court orders dated 18 January 2018.

11. The Tribunal is satisfied, based on the evidence provided, that care of [Child 1] and [Child 2] changed on 29 November 2017.

12. Both parents agree the court orders dated 18 January 2018 allow for care of nine nights a fortnight to Mrs Riordan and five nights a fortnight to Mr Pittman during school term and shared care during the school holidays.  Although Mr Pittman did not have this exact level of care during the December 2017-January 2018 school holidays the Tribunal is satisfied it was the intent of the parents to have shared care during this period.  While Mrs Riordan had additional care during the March-April 2018 school holidays the Tribunal is satisfied this was a one-off departure which does not constitute an ongoing change to the court-ordered care arrangements.

13. The Tribunal is satisfied that, according to the court orders, Mr Pittman has 39 per cent care of [Child 1] and [Child 2] and Mrs Riordan has 61 per cent care from 29 November 2017.

14. The existing percentage of care reflected in the assessment for [Child 1] and [Child 2] was 42 per cent to Mr Pittman and 58 per cent to Mrs Riordan from 27 January 2015.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determination must be revoked and replaced by a new percentage of care determination.

15. The Tribunal finds that the date of notification of the change of care was 7 February 2018. As section 54F of the Act is met, the Tribunal finds the previous determination must be revoked from 6 February 2018 and replaced with the pattern of care that took place.

New care percentage decision

1. Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Mr Pittman and Mrs Riordan under section 50 of the Act.

2. For the reasons outlined above, the Tribunal makes new determinations that Mr Pittman provides 39 per cent care and Mrs Riordan provides 61 per cent care of [Child 1] and [Child 2] from 7 February 2018.

Date of effect of new care percentage decision

1. Section 95N of the Child Support (Registration and Collection) Act 1988 determines the date of effect of a Tribunal decision to set aside a care percentage decision.  Mr Pittman applied to the Tribunal on 26 October 2018 for a review of the 29 June 2018 objection decision made by the Child Support Agency.  As his application was not within 28 days of receiving notice of this decision, the date of effect of any new decision by the Tribunal is the date he applied for review.

2. The Tribunal may extend the 28 days if there are special circumstances that prevented Mr Pittman from applying for review within this period.  While the Child Support (Registration and Collection) Act 1988 does not define ‘special circumstances’, the Child Support Guide at 4.1.8 provides some guidance and states the circumstances must be ‘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 an earlier date.’  Examples include the parent being seriously ill, suffering a personal trauma, a natural disaster causing damage to the parent’s property or communication difficulties.

3. In discussing this matter at hearing, Mr Pittman told the Tribunal he had contacted the Child Support Agency after receiving the objection decision to query the application of the court orders.  He was advised by the Child Support Agency to submit a change of care which he did.  He said he was then advised by the Child Support Agency that a change of care could not be processed as the dates overlapped with the objection process and he would instead need to submit an appeal to the Tribunal.  He did this on 26 October 2018.

4. The Tribunal notes in evidence Mr Pittman contacted the Child Support Agency on 3 July 2018 to discuss the objection decision.  Mr Pittman next contacted the Child Support Agency by email on 4 September 2018 following receipt of a new assessment notice.  It is in this email Mr Pittman outlines in detail his concerns in relation to his level of care.

5. The Tribunal is not satisfied the events as described by Mr Pittman would have prevented him from making an earlier application for review to the Tribunal.  The Tribunal notes in correspondence from the Child Support Agency dated 29 June 2018 Mr Pittman was advised of the requirement to seek a review within 28 days from the date he received that correspondence.

6. The Tribunal finds there were no special circumstances preventing Mr Pittman from applying for review within the time frame prescribed.  Accordingly the Tribunal will not extend the 28 day period and its decision is effective from the date of Mr Pittman’s application, being 26 October 2018.

DECISION

(a)The Tribunal sets aside the decision under review and, in substitution, decides that Mr Pittman provides 39 per cent care and Mrs Riordan provides 61 per cent care of [Child 1] and [Child 2] from 7 February 2018.

(b)The Tribunal declines to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 26 October 2018.