Roach and Child Support Registrar (Child support)
[2021] AATA 1289
•31 March 2021
Roach and Child Support Registrar (Child support) [2021] AATA 1289 (31 March 2021)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2021/SC020577
APPLICANT: Ms Roach
OTHER PARTIES: Child Support Registrar
TRIBUNAL:Member F Staden
DECISION DATE: 31 March 2021
DECISION:
The tribunal sets aside the decision under review and, in substitution, decides that the care percentages for Ms Roach and [Mr A] were 100% and 0% respectively from 19 August 2019. The date of effect of this decision is 19 August 2019.
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 – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist
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
Ms Roach and [Mr A] are the separated parents of two children, [Child 1], born 2003, and [Child 2], born 2004 (the children). This review is about the care of the children. There are no written care arrangements for the children.
On 19 August 2019, [Mr A] applied to the then Department of Human Services – Child Support (Child Support) for a child support assessment in relation to the children. In his online application, he stated that the likely pattern of care for the children over the next year was that he would provide 40% of the children’s care and Ms Roach would provide 60%.
On 22 August 2019, Ms Roach confirmed the care arrangements as stated by [Mr A] in his child support assessment request.
On 22 August 2019, Child Support accepted [Mr A’s] application for a child support assessment from 19 August 2019. The assessment was based on [Mr A’s] care percentage for the children being 40% and that of Ms Roach being 60%.
On 6 August 2020, Ms Roach lodged an objection to the 22 August 2019 care percentage decision. She stated that she provided 100% of the care for the children since her separation from [Mr A] and provided evidence in support of her statement.
On 23 November 2020, an objections officer disallowed Ms Roach’s objection. The objections officer was not persuaded on the evidence that Ms Roach’s care percentage for the children was 100% from 19 August 2019.
On 6 January 2021, Ms Roach applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.
A hearing was conducted on 31 March 2021. Ms Roach gave sworn evidence by telephone. [Mr A] did not respond to a 7 January 2021 invitation to be an added party in this matter and so is not an added party. The tribunal also had before it documents provided by Child Support (232 pages), a copy of which was sent to Ms Roach before the hearing. Ms Roach provided additional material before the hearing (pages A1 to A47), a copy of which was given to Child Support.
Relevant aspects of the evidence are referred to in the consideration below.
ISSUES
The relevant legislation in this case is the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). The tribunal also had regard to the Child Support Guide, Child Support’s online technical and policy guide to the administration of the child support scheme.
Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent in relation to each child.
Child Support decides each parent’s care percentage in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide each parent’s care percentage when first making a child support assessment and to revoke and remake those decisions in specific circumstances.
Sections 49 and 50 of the Assessment Act require Child Support, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Services Australia – Centrelink (Centrelink) are otherwise advised.
The issues which arise in this case are:
What care percentages reflect the likely pattern of care for the children from 19 August 2019; and
What is the date of effect of this decision?
CONSIDERATION
Issue 1: What care percentages reflect the likely pattern of care for the children from 19 August 2019?
On 11 February 2021, [Mr A] contacted Child Support and stated that Ms Roach had provided 100% of the care for the children since they separated and particularly from 19 August 2019. The record of the contact included:
Pyr advised that he is trying to get himself well after being released from prison & drug rehab
The pyr advised that he is trying to make things right & do the right thing for himself, the COC and the pye
Pyr advised that due to his issues and addictions he has never had 40% care of the COC even though a 60/40% care split was the intention, it never happened.
On 25 February 2021, Ms Roach provided Child Support with a copy of the Centrelink Details of your child’s care arrangements form completed by [Mr A] on 12 February 2021. On that form, [Mr A] stated that Ms Roach had provided 100% of the care for the children from 1 June 2019.
[Mr A’s] evidence in relation to his having no care of the children agrees with that of third parties who provided statements at various points in support of Ms Roach’s objection. These included [name], Ms Roach’s sister; [three names], Ms Roach’s friends; [name], Ms Roach’s neighbour; [name], Ms Roach’s cousin; and [name], [Child 2’s] [counsellor].
The tribunal asked Ms Roach why she told a Child Support officer on 22 August 2019 that she only provided 60% of the children’s care and noted the objections officer’s focus on the fact that she had texted with [Mr A] while doing so. Ms Roach explained that [Mr A] was nearby when she took that call. He had been inside the house but then had to go outside with a dog he had just bought which is why they texted during the call. She said that [Mr A] led her to believe that his having a care percentage would be good for his bankruptcy claim; she did not then know much about how Child Support and Centrelink worked and so did not understand the significance of what she had done. She was also very aware of the threat of violence from [Mr A] if she did not do what he asked.
The tribunal found that the likely pattern of care for the children from 19 August 2019 was that Ms Roach provide 100% of their care and [Mr A] 0% and that this had been the pattern of care from at least December 2016. The tribunal noted that these are initial determinations of care percentages under sections 50 and 49 of the Assessment Act respectively. They are not changed care percentages as suggested by a Child Support officer in the record of an 11 February 2021 contact with [Mr A].
Issue 2: What is the date of effect of this decision?
The date of effect provisions in section 87AA of the Registration and Collection Act apply only to objections to care percentage decisions which are allowed or partly allowed. Under these provisions, unless special circumstances prevented lodgement, the date of effect of a decision from an objection lodged more than 28 days after notification of the original decision is the date on which the objection was lodged.
Here, the objection was disallowed. The date of effect of this decision is therefore made under subsection 43(6) of the Administrative Appeals Tribunal Act 1975 which allows the tribunal to specify a date from which its decision takes effect. Guided by Kelvin Walker v Secretary, Department of Social Security [1997] FCA 589, the tribunal’s consideration of the impact of Ms Roach’s late objection was informed by section 87AA of the Registration and Collection Act. Thus, as Ms Roach’s objection to the original decision was out of time, the tribunal’s decision will only have effect from 6 August 2020 unless the tribunal finds that special circumstances prevented lodgement and determines another date.
Special circumstances are not defined in the Registration and Collection Act. The Child Support Guide at 4.1.8 Care percentage decisions gives some guidance:
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.
The tribunal found Ms Roach to be a highly credible witness. She did not dispute that Child Support had sent her a letter dated 22 August 2019 which included child support assessments showing her care percentage to be 60% and that of [Mr A] to be 40%. However, she did not object to this care percentage decision until almost a year later, on 6 August 2020.
Ms Roach told the tribunal that despite separating from [Mr A], their violent relationship carried on and, in some ways, worsened because of [Mr A’s] increased use of drugs which had a very bad effect on him. [Mr A] would enter her home when he pleased and continued to be physically and verbally violent towards her. Ms Roach said that she continued to see this as her problem to solve, despite help being offered to her.
The turning point came on 7 July 2020 which was the last day on which [Mr A] gave Ms Roach a “beating”. [Child 2] was present and saw what happened. This was the first time [Mr A] had hit Ms Roach in front of either of the children. Ms Roach said that the involvement of [Child 2] led her to take up offers of help from the police and Victims Services. [Mr A] was committed to [a named] Correctional Centre and Victims Services began, among other things, to assist Ms Roach to sort out her finances.
It was a Victims Services worker who realised that Ms Roach was receiving family tax benefit based on 60% care of the children rather than 40%. That worker helped Ms Roach gain support from [Agency 1] and it was a [Agency 1] worker who was with Ms Roach when she lodged her 6 August 2020 care percentage objection.
The tribunal had no doubt that the well-documented impacts of domestic violence provided the context in which Ms Roach initially agreed to an incorrect care percentage. Her delay in informing Child Support of the error correlates with the time it took her to re-evaluate her situation and seek help, another well-documented, difficult psychological process. As soon as she was assisted to understand the implications of the care percentage she had agreed to, Ms Roach acted by lodging an objection.
Overall, the tribunal found Ms Roach’s circumstances as outlined above are special circumstances such as to account for the late lodgement of her objection. The tribunal therefore determined that the date of effect of this decision is 19 August 2019.
DECISION
The tribunal sets aside the decision under review and, in substitution, decides that the care percentages for Ms Roach and [Mr A] were 100% and 0% respectively from 19 August 2019. The date of effect of this decision is 19 August 2019.
1
0