Rasnick and Mapother (Child support)

[2024] AATA 2025

Rasnick and Mapother (Child support) [2024] AATA 2025 (11 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC027055 & 2023/MC027177

APPLICANT:  Mr Rasnick

OTHER PARTIES:  Child Support Registrar

Ms Mapother

TRIBUNAL:Member H Moreland

DECISION DATE:  11 April 2024

DECISION:

The Tribunal:

·     Sets aside the care percentage decision under review and, in substitution, decides that Mr Rasnick had a care percentage of 42% and Ms Mapother had a care percentage of 58% in relation to [Child 1] from 10 July 2022; and

·     Affirms the decision to grant an extension of time, so the date of effect of the decision is the date the original decision‑maker’s decision was to take effect.

CATCHWORDS 

CHILD SUPPORT – extension of time for lodgement of application for review – percentage of care – date of effect – relevant considerations – special circumstances – decision affirmed to grant an extension of time – existing care determination revoked – 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. Mr Rasnick and Ms Mapother are the parents of [Child 1]. Mr Rasnick is the parent liable to pay child support.

2. From 11 July 2020, Services Australia – Child Support (Child Support) had the care of [Child 1] recorded as being 0% with Mr Rasnick and 100% with Ms Mapother.[1] On 19 August 2022, Mr Rasnick told Child Support that he had care of [Child 1] on Sunday, Monday and Tuesday night each week (which, Child Support determined, was 156 nights per year, or 14% from 10 July 2022). On 7 November 2022, Ms Mapother told Child Support that there had been no change in care for [Child 1] and that she had continued to have 100% care. On 14 January 2023, Child Support decided to refuse to reflect on its records that, in relation to [Child 1], Mr Rasnick had a care percentage of 42% and Ms Mapother had a care percentage of 58% from 10 July 2022 but that Mr Rasnick had a care percentage of 42% and Ms Mapother had a care percentage of 58% from 19 December 2022.[2]

   [1] Child Support papers (2023-MC027177), p 294.

   [2] Child Support papers (2023-MC027055), p 124 and (2023-MC027177), p 296.

3. On 30 June 2023, Ms Mapother objected to the decision, and on 31 August 2023, an objections officer decided to reflect the care of [Child 1] as being 29% with Mr Rasnick and 71% with Ms Mapother from 10 July 2022. The objections officer also decided that due to an application for an extension of time due to special circumstances being granted, the date of effect of their decision was 10 July 2022.

4. On 13 November 2023, Mr Rasnick was notified of the decision to refuse to reflect the care of [Child 1] as 42% to Mr Rasnick and 58% to Ms Mapother and that Child Support had decided that Mr Rasnick had a care percentage of 29% and Ms Mapother had a care percentage of 71% from 10 July 2022. As shown in the Child Support documents, this was issued to Mr Rasnick online on 13 November 2023. On 14 November 2023, Mr Rasnick applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for an independent review of the care percentage decision.

5. On 4 December 2023, Mr Rasnick applied to the Tribunal for an independent review of the date of effect decision.

6. This means that in this matter the Tribunal has two decisions before it, and they are:

   ·Review 2023-MC027055: Care percentage decision.

   ·Review 2023-MC027177: Date of effect decision.

7. The hearing took place on 11 April 2024. Mr Rasnick and Ms Mapother both participated in the hearing by telephone and gave sworn evidence. In making its decision, the Tribunal also considered the documents provided by Child Support (for review 2023‑MC027055, numbered 1–435, and for review 2023‑MC027177, numbered 1–379), as well as documents provided by Mr Rasnick (numbered A1–A5).

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Assessment Act), the Child Support (Registration and Collection) Act 1988 (the Registration Act) and the Administrative Appeals Tribunal Act 1975 (the AAT Act).

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).[3] In the case of G v MIBP,[4] 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] (1979) 2 ALD 634.

   [4] [2018] FCA 1229.

Was there a change in the care of [Child 1]?

1. It is not in dispute that the care of [Child 1] was not 100% in the care of Ms Mapother from 10 July 2022. It is also not in dispute that Mr Rasnick had no care of [Child 1] from 25 January 2023, as Ms Mapother sent [Child 1] to America to stay with her sister in late January 2023.

11.What is in dispute is what the care of [Child 1] was for the period from 10 July 2022 to 24 January 2023.

Mr Rasnick’s submissions

12.Mr Rasnick provided Child Support, and consequently the Tribunal, with a document titled “Child-Support Satutory Declaration –  Rasnick” [sic] which was signed by Mr Rasnick and with his signature apparently witnessed.[5] The name of the witness was redacted on the document but Mr Rasnick told the Tribunal that his signature had been witnessed by a police member.

[5] Child Support papers (2023-MC027177), pp 173-176.

13.Mr Rasnick told the Tribunal that this was an accurate record of the care (including hours of care and overnight care) that he had had of [Child 1] for the period from 27 May 2022 to 24 January 2023. Mr Rasnick told the Tribunal that he had put together the document based on information from data in his mobile telephone.

14.According to this document, Mr Rasnick had care of [Child 1], based on a pattern of him having care from Sunday night through to Wednesday morning each week, with some minor variations.

15.The Tribunal notes that according to section 54D of the Assessment Act, if a responsible person’s percentage of care is not a whole percentage and the person’s percentage of care is greater than 50%, the percentage is rounded up to the nearest whole percentage, and if the person’s percentage is less than 50%, the percentage is rounded down to the nearest whole percentage.

16.This, the Tribunal concludes, means that if the Tribunal accepts Mr Rasnick’s submissions, Mr Rasnick had a care percentage of 42% and Ms Mapother had a care percentage of 58%.

17.Mr Rasnick also provided Child Support, and consequently the Tribunal, with a copy of an email from a Ms [A] at [a named childcare], which stated:

To whom it may concern,

I’m writing this email to confirm that Mr Rasnick drops off and picks up the children from childcare at [redacted] on a Monday and Tuesday and then drops the children off on a Wednesday for Ms Mapother to collect them on a Wednesday afternoon.[6]

[6] Child Support papers (2023-MC027177), p 76.

18.Mr Rasnick also provided statements from his current partner and her sister, supporting his submissions about the care of [Child 1].

19.The Tribunal notes that Mr Rasnick’s document shows that he had care of [Child 1] on 8 October 2022 but that Child Support found that it indicated, from a copy of an SMS message sent by Mr Rasnick, that he did not have care of [Child 1] on that night. Mr Rasnick submitted that the SMS messages were out of order in the papers and that when read correctly, with reference to the time against each message, it shows that he did agree to have care of [Child 1] on 8 October 2022.[7] The Tribunal accepts Mr Rasnick’s submissions regarding 8 October 2022.

[7] Child Support papers (2023-MC027055), pp 777-78.

Ms Mapother’s submissions

1. Ms Mapother rejected Mr Rasnick’s submissions regarding the care of [Child 1]. The Tribunal asked Ms Mapother why the Child Support papers show that she told Child Support, on 7 November 2022, that there had been no change in care for [Child 1] and that she had continued to have 100% care. Ms Mapother said that Mr Rasnick had repeatedly failed to have care of [Child 1] when he was supposed to and that in her estimation she had had care of [Child 1] for 80%–85% of the time from 10 July 2022 to 24 January 2023.

21.The Tribunal notes that Child Support’s decision that the care of [Child 1] from 10 July 2022 was 71% to Ms Mapother and 29% to Mr Rasnick was based on the points of agreement it found between the evidence of Mr Rasnick and Ms Mapother.

22.Ms Mapother told the Tribunal that her recollection was that Mr Rasnick was so inconsistent in his care of [Child 1] that he would have care of [Child 1] for 1 to 2 nights, rather than 3 nights, and that a couple of times each month, Mr Rasnick would not have care of [Child 1] at all, when he was supposed to.

23.Ms Mapother also provided statements from her sister and a family friend, supporting her submissions about the care of [Child 1].

Conclusion

24.The Tribunal concludes, based on the evidence before it, that from 10 July 2022, there was a pattern of care that was based on Mr Rasnick having care of [Child 1] for 3 nights per week, or 42% of the time.

25.The Tribunal found Mr Rasnick’s submissions more persuasive than Ms Mapother’s submissions because they were more detailed and supported by documentation. The Tribunal acknowledges that Mr Rasnick’s calendar of care was not a contemporaneous record but accepts Mr Rasnick’s submissions that it was based on data from his mobile phone.

26.This means the Tribunal finds that from 10 July 2022, Mr Rasnick had a care percentage of 42% and Ms Mapother had a care percentage of 58%.

Should the existing care determination in relation to [Child 1] be revoked?

27.According to section 54F of the Assessment Act, the Registrar must revoke a care determination if:

·      the existing percentage of care has been determined under either section 49 or section 50 of the Assessment Act;

·      one of the conditions described in paragraphs 54F(2)(a) to (c) of the Assessment Act applies in relation to an interim period;

·      the Registrar or the Secretary is notified or becomes aware that the actual care does not correspond with the person’s percentage of care for the child under the existing determination;

·      a new percentage were to be determined under either section 49 or 50 of the Assessment Act, it would change the person’s cost percentage; and

·      section 54G of the Assessment Act does not apply.

28.Section 54G applies in circumstances where:

·      a parent was to have at least regular care of the child based on the existing care determination under section 50, but the parent has had no actual care or less than regular care of the child, even though the other parent was making the child available;

·      the other parent must have had their existing percentage of care determined under section 50; and

·      the other parent must notify the Registrar or the Secretary that the parent with the reduced care has no, or less than regular, care within a reasonable time.

29.Section 49 of the Assessment Act requires the Registrar (or a subsequent decision‑maker in the shoes of the Registrar) to be satisfied that the responsible person has had, or is likely to have, no pattern of care during such period (the care period) as the Registrar (or subsequent decision-maker) considers to be appropriate having regard to all the circumstances. Section 50 of the Assessment Act requires the Registrar (or a subsequent decision‑maker in the shoes of the Registrar) to be satisfied that the responsible person has had, or is likely to have, a pattern of care during the care period.

30.The Tribunal is satisfied that a care determination had been made under section 49 of the Assessment Act because, according to Child Support’s records, from 11 July 2020, Mr Rasnick had a care percentage of 0% in relation to the care of [Child 1], so he had no pattern of care.

31.The Tribunal is also satisfied that one of the conditions described in paragraphs 54F(2)(a) to (c) of the Assessment Act applies because these relate to interim periods not applying and there was no parenting agreement or court order in this case, so there could not have been an interim period.

32.The Tribunal is also satisfied that the actual care of [Child 1] did not correspond with Mr Rasnick’s percentage of care for the child under the existing determination, and there was a change in Mr Rasnick’s cost percentage because his care went from 0% to 42%.

33.The Tribunal is also satisfied that section 54G of the Assessment Act does not apply.

34.Taken together, this means the Tribunal finds that the existing care determination is to be revoked under section 54F of the Assessment Act.

Conclusion

35.The Tribunal revokes the existing care determination and makes a new determination under section 50 of the Assessment Act that Mr Rasnick had a care percentage of 42% and Ms Mapother had a care percentage of 58% from 10 July 2022.

Date of effect of the Tribunal’s decision

36.The Tribunal then considered the date of effect of its decision to set aside the decision of the objections officer. According to subsection 43(6) of the AAT Act, the Tribunal’s decision is taken to be a decision of the decision-maker (the objections officer) and, unless otherwise ordered, has effect from the day on which the decision-maker’s decision had effect.

Section 87AA of the Registration Act

37.Subsection 87AA(1) of the Registration Act states that if a person objects to a care percentage decision more than 28 days after the person was served with a notice of the decision, the decision has effect from the date the person lodged the objection. Subsection 87AA(2) of the Registration Act provides an exception to that general rule in that if the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within 28 days, the Registrar may determine that subsection 87AA(1) applies as if the person objected within the required timeframe.

38.The legislation does not define the term “special circumstances”. The Tribunal notes that the explanatory memorandum to the bill for the Amending Act states, “The discretion to extend the period beyond 28 (or 90) days in special circumstances is intended to enable some flexibility for unusual cases”.

1. The Guide, at 4.1.8 Care percentage decisions, includes the following guidance regarding special circumstances:

   Special circumstances

   In considering special circumstances the Registrar will look at the particular circumstances of the applicant. 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 an earlier date. 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.

   If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (CSRC Act section 87AA(2)). The Registrar will consider if:

   ·the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension create a significant overpayment or significant arrears of child support?

   ·the applicant rested on their rights, as they did not take any action prior to lodging the objection. For example, did the applicant make any efforts to lodge the objection earlier, communicate to Services Australia that the decision was being contested or raised their concerns in other ways - for example, a complaint to Services Australia or the Ombudsman?[8]

   [8] shown in the Child Support papers, Child Support decided that special circumstances existed in this case because Ms Mapother said that she did not receive the letter from Child Support.

   41.The Tribunal asked Ms Mapother to explain why there was a delay in her objecting to the original decision. Ms Mapother told the Tribunal that she objected because she did not receive any letters from Child Support and did not receive any calls from Child Support, so she didn’t know about the original decision. The Tribunal notes that Child Support appears to have conceded that the relevant correspondence was not received by Ms Mapother but does not appear to have stated in the Child Support papers whether there was a problem with their system of correspondence.

   42.The Tribunal notes that the special circumstances must have prevented Ms Mapother from lodging an objection to the original decision within 28 days. Given the circumstances of Ms Mapother, particularly that she was not aware that the decision had been made, the Tribunal is satisfied that the circumstances of Ms Mapother are special such that the application should be considered as if it were lodged in time.

   43.This means the Tribunal finds it is appropriate to exercise the discretion to extend the period which Ms Mapother had to lodge her objection.

   DECISION

   The Tribunal:

   ·     Sets aside the care percentage decision under review and, in substitution, decides that Mr Rasnick had a care percentage of 42% and Ms Mapother had a care percentage of 58% in relation to [Child 1] from 10 July 2022; and

   ·     Affirms the decision to grant an extension of time, so the date of effect of the decision is the date the original decision‑maker’s decision was to take effect.