Quealy and Haley (Child support)

[2023] AATA 4300

Quealy and Haley (Child support) [2023] AATA 4300 (7 November 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026351

APPLICANT:  Ms Quealy

OTHER PARTIES:  Child Support Registrar

Mr Haley

TRIBUNAL:Senior Member S Trotter

DECISION DATE:  7 November 2023

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

1. the existing percentage of care determination of 54% to Ms Quealy is revoked from 13 June 2021 and replaced with a new percentage of care determination of 25% applying from 14 June 2021; and

2. the existing percentage of care determination of 46% to Mr Haley is revoked from 13 June 2022 and replaced with a new percentage of care determination of 75% applying from 14 June 2022.

The Tribunal determines, pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) was a reference to a longer period extending until 5 July 2023.

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 – late application for review - whether there were special circumstances that prevented the application for review being lodged in time - special circumstances exist - tribunal decides 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. As relevant to this application, Ms Quealy and Mr Haley are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2004) and [Child 2] (born 2006). This application concerns a single decision of Child Support about the percentage of care determinations for each parent for [Child 1] (only) utilised in calculation of the child support liability.

2. From 16 October 2012, the pre-existing percentages of care applying in the child support case for [Child 1] were 54% to Ms Quealy and 46% to Mr Haley.

3. On 14 June 2022, Mr Haley contacted Child Support and advised, as is relevant to this application, of a change to the care position of [Child 1] with Ms Quealy having 2% care and him having 98% care of [Child 1] from 14 June 2021.

4. On 25 September 2022, Child Support decided (as is relevant to this application) to revoke the pre-existing percentage of care determinations for [Child 1] and record new percentage of care determinations of 2% to Ms Quealy and 98% to Mr Haley from 14 June 2021. Notably, as the change of care was notified to Child Support on 14 June 2022, more than 28 days after the change of care was found to have occurred on 14 June 2021, the recorded increased percentage of care determination from 46% to 98% to Mr Haley applied from 14 June 2022 (the date of notification). However, the recorded decreased percentage of care determination from 54% to 2% to Ms Quealy applied from 14 June 2021.

5. On 28 September 2022, Ms Quealy objected to this decision and, on 6 December 2022, a Child Support objections officer disallowed the objection.

6. On 5 July 2023, Ms Quealy lodged an application with the Tribunal seeking an independent review of Child Support’s decision stating (unedited):

   Applicant contacted and stated CSA made a decision regarding care of children with ex partner evidence and did not consult/contact applicant. Applicant was overseas in Vietnam and was not made aware until return, has not received any evidence documents to date regarding DUR and contacted CSA late last year with evidence however now CSA advised they did not receive any of applicant evidence. Applicant disputing CSA decision.

7. A hearing took place on 2 November 2023 with Ms Quealy and Mr Haley both participating by telephone and giving evidence on affirmation. The Tribunal was assisted by an interpreter in the English and Vietnamese languages.

8. The Tribunal took into account the oral evidence of Ms Quealy and Mr Haley and the documentary material provided by Child Support to the Tribunal, Ms Quealy and Mr Haley (marked Exhibit 1, pages 1 to 174), and documents provided by Ms Quealy (marked Exhibit A, pages 1 to 16). Copies of all documents were exchanged with each party.

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 Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing care determinations, which are then used as part of the child support formula to assess child support rates.

10.  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.

11.  The issues to be determined by the Tribunal based on the relevant legislative provisions are as follows:

(a)Are the pre-existing percentage of care determinations for Ms Quealy and Mr Haley to be revoked? And, if so,

(b)What are the new percentage of care determinations for Ms Quealy and Mr Haley? 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

12.  Ms Quealy told the Tribunal she is only seeking review of the decision in relation to the care percentages to be recorded for child support purposes for [Child 1] from 14 June 2021.

13.  The Tribunal queried Ms Quealy and Mr Haley as to whether either had kept contemporaneous records in the nature of a care diary or the like as to which of them had had care of [Child 1] from 14 June 2021. Neither Ms Quealy nor Mr Haley could refer the Tribunal to any such records.

14.  Ms Quealy told the Tribunal that she does not agree that she only had care of [Child 1] for eight nights as is suggested by a 2% care percentage. Ms Quealy referred the Tribunal to the documents provided by her and in particular a letter she prepared (appearing at pages 5 and 6 of Exhibit A) and noted that the letter included a list of dates that she had overnight care of [Child 1], ascertained by reference to text messages on her phone. Ms Quealy told the Tribunal that a lady in the Women’s Refuge she attended had assisted her in going through her phone and had listed the dates based on messages in her phone. Ms Quealy said she had more overnight care of [Child 1] than the listed dates – those are just the dates that she was able to ascertain from text messages in her phone. Mr Haley told the Tribunal that he cannot disagree that Ms Quealy had overnight care of [Child 1] on the stated dates.

15.  Mr Haley told the Tribunal that prior to the first COVID-19 lockdown, the children stayed with him Friday, Saturday and Sunday nights during school term and for half of the school holidays. Mr Haley told the Tribunal that there was a change in the care arrangements for [Child 1] when COVID-19 occurred, with the children staying with him so they could do remote schooling (he had the necessary internet connection to enable them to do this). Then in June 2021, [Child 1] asked if he could stay with Mr Haley all the time. Mr Haley said he had no problem with that but asked that [Child 1] inform his mother, Ms Quealy, of what he wanted to do. [Child 1] then started staying with him (Mr Haley) during school term, with [Child 1] spending time with Ms Quealy on school holidays – he did not, however, record how much time was spent with Ms Quealy. The only thing that was important to him at the time was what was the best arrangement for [Child 1]. Mr Haley said he did not change anything at that time as regards child support. However, the cost of living was becoming so high that he advised Child Support of the changes in 2022.

Issue 1: Are the pre-existing percentage of care determinations for Ms Quealy and Mr Haley to be revoked?

16.  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.

17.  Care percentages to be determined are to be calculated having regard to the actual care a person has had, or is likely to have, during a care period. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person. Relevant considerations, therefore, are both the care likely to occur and, where relevant, the actual care that has occurred.

18.  As to the appropriate care period to be considered, 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 Child Support 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.

19.  After questioning by the Tribunal, and absent contemporaneous records of who had actual overnight care of [Child 1] from 14 June 2021, Ms Quealy and Mr Haley agreed that the best calculation of the overnight care of [Child 1] that was occurring from that time was 25% care to Ms Quealy and 75% care to Mr Haley.

20.  The Tribunal finds that the care of [Child 1] changed on 14 June 2021, with the appropriate care period to be adopted being the 12-month period from 14 June 2021, from which time Ms Quealy was having 25% care and Mr Haley was having 75% overnight care of [Child 1].

21.  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.

22.  Section 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, and section 54G does not apply and section 51 does not apply or no longer applies.

23.  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%

24.  Section 54G provides that a care determination must be revoked if a parent was to have at least regular care pursuant to a pre-existing percentage of care determination and the other parent was to have more than 0% care, they have no care or less than regular care (subsection 5(2) defines regular care as being care between 14% and 35%) despite the other responsible person making care available and the change in care was notified within a reasonable period of time. Neither parent’s care reduced to less than 14%. Section 54G therefore does not apply.

25.  Care of 25% to Ms Quealy and 75% care to Mr Haley does not correspond with the pre-existing percentage of care determinations recorded by Child Support of 54% to Ms Quealy and 46% to Mr Haley. A change in care to 25% to Ms Quealy and 75% to Mr Haley would change each parent’s cost percentage pursuant to the table in section 55C.

26.  The evidence before the Tribunal was that court orders had previously applied in relation to care of the children in 2009 but that those court orders were not applying prior to June 2021. Section 51 therefore does not apply.

27.  The existing percentages of care of 54% to Ms Quealy and 46% to Mr Haley are therefore required to be revoked pursuant to section 54F.

Issue 2: What are the new percentage of care determinations for Ms Quealy and Mr Haley?

28.  Percentage of care determinations are required pursuant to subsection 50(2). The Tribunal determines that Ms Quealy’s percentage of care is 25% and Mr Haley’s percentage of care is 75%, as concluded by the Tribunal in paragraph 20 of these Reasons.

Issue 3: 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?

29.  Pursuant to paragraph 54F(3)(b), as the change in care was notified by Mr Haley on 14 June 2022, more than 28 days after the Tribunal has found the change occurred, on 14 June 2021, there are different dates of effect for the revocation of the parents’ respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care of 54% recorded for Ms Quealy takes effect the day before the change of care day, that is, on 13 June 2021, and revocation of the pre-existing percentage of care of 46% recorded for Mr Haley takes effect the day before the date of notification of the change in care, that is, on 13 June 2022.

30.  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, a new percentage of care determination of 25% to Ms Quealy would normally apply from 14 June 2021 and a new percentage of care determination of 75% for Mr Haley would normally apply from 14 June 2022.

31. However, if an application to the Tribunal is made more than 28 days after the notice of the objection decision was served upon the person, and the Tribunal’s decision is to vary or substitute a decision on that objection, as is the case here, the Tribunal’s decision only takes effect from the day the application for review was made unless there are special circumstances that prevented the application from being made within that 28-day period: subsection 95N(2) of the Registration Act.

32.  The objection decision of 6 December 2022 was sent to the parties under cover of a letter of the same date with Child Support’s record showing that Ms Quealy’s letter was read online[1] (page 9 of Exhibit 1), although notably the records do not show when the letter was read online. Ms Quealy’s application was made to the Tribunal on 5 July 2023. The application to the Tribunal was therefore made more than 28 days after notice of the objection decision was given to Ms Quealy. Given the Tribunal’s decision is to vary the objection decision, changing the percentages of care to 25% and 75% respectively, the Tribunal considered whether there were special circumstances that prevented the application to the Tribunal from being made within 28 days of the notice of the objection decision being given to Ms Quealy.

[1] Section 14A of the Electronic Transactions Act 1999 provides that if a person has designated an electronic address, the time of receipt of the notice is when the notice reaches the person’s electronic address.

33.  Ms Quealy’s first contact with Child Support after 6 December 2022 was on 28 June 2023 when she contacted Child Support seeking an update on the objection and was told of the objection decision. Ms Quealy is recorded as advising that she did not know how to access myGov to open her letters and therefore had not received the objection decision. Child Support records that the objection decision was then read to Ms Quealy. In her application to the Tribunal, Ms Quealy is recorded as advising that she was overseas in Vietnam and did not become aware of the objection decision until her return.

34. Given Ms Quealy’s absence overseas and her difficulty in accessing myGov, the Tribunal is satisfied that there were special circumstances that prevented the application to the Tribunal from being made within the 28 days of the notice of the objection decision being given to Ms Quealy such that the Tribunal is satisfied that the reference to 28 days in paragraph 95N(1)(b) of the Registration Act is a reference to a longer period up to 5 July 2023.

35.  It follows that a new percentage of care determination of 25% to Ms Quealy applies from 14 June 2021 and a new percentage of care determination of 75% applies for Mr Haley from 14 June 2022.

36.  As this is different to the decision of the objections officer, the decision under review will be varied.

Conclusion

37.  As a result of the Tribunal’s decision, including the different dates of effect due to the late notification of the change in care that occurred on 14 June 2021, the following percentages of care will apply in the child support case in respect of [Child 1]:

Period	% care to Ms Quealy for [Child 1]	% care to Mr Haley for [Child 1]
Prior to 14 June 2021	54%	46%
14 June 2021 to 13 June 2022	25%	46%
From 14 June 2022	25%	75%

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

1. the existing percentage of care determination of 54% to Ms Quealy is revoked from 13 June 2021 and replaced with a new percentage of care determination of 25% applying from 14 June 2021; and

2. the existing percentage of care determination of 46% to Mr Haley is revoked from 13 June 2022 and replaced with a new percentage of care determination of 75% applying from 14 June 2022.

The Tribunal determines, pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988, that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) was a reference to a longer period extending until 5 July 2023.