Rolex and Wellington (Child support)

[2018] AATA 2291

Rolex and Wellington (Child support) [2018] AATA 2291 (31 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2018/MC013833 & 2018/MC013861

APPLICANT:  Mr Rolex

OTHER PARTIES:  Ms Wellington

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  31 May 2018

DECISION:

The objections officer’s care decision dated 6 April 2018 is set aside and, in substitution, the Tribunal makes a care decision that Mr Rolex is recorded as providing 42% care and Ms Wellington is recorded as providing 58% care to [Child 1] from 7 July 2017, i.e. the Tribunal reinstates the original care decision.

The objections officer’s decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside and, in substitution, the Tribunal decides that section 87AA does not apply.

CATCHWORDS

Child Support – Percentage of care – Determination of the likely pattern of care – Decision under review set aside and substituted - Date of effect of the objection decision - Objection lodged within the required timeframe - Section 87AA does not apply - Decision to make a determination under subsection 87AA(2) 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

1. This case concerns Mr Rolex’s and Ms Wellington’s recorded care of their youngest child, [Child 1]. By way of background, the Department of Humans Services – Child Support (“the CSA”) recorded Mr Rolex as providing 28% care to [Child 1] from 2 June 2016. Ms Wellington has always been recorded as providing the balance of care and, for convenience, I will predominantly refer to Mr Rolex’s care.

2. It is worth noting at the outset that if Mr Rolex were providing a general pattern of care of two nights of care per week he would be recorded as providing 28% care: 2 / 7 = 28.6% and percentages less than 50% are rounded down to the nearest whole percentage: section 54D of the Child Support (Assessment) Act 1989 (“the Assessment Act”).

3. On 23 June 2017, Ms Wellington sent an email to Mr Rolex in which she stated “that under mutually agreeable terms [Child 1] lives with me during the week and with you on weekends and part of school holidays.”

4. On 7 July 2017, Mr Rolex informed the CSA that he was providing, on average, three nights of care per week. 3 / 7 = 42.9%. Mr Rolex also informed the CSA that the change in care occurred on 8 June 2017.

5. On 16 August 2017 the CSA decided to record Mr Rolex as providing 42% care from 7 July 2017 (“the original care decision”). The CSA did not record Mr Rolex as providing 42% care from 8 June 2017 because he did not notify the CSA of the change in care within 28 days of its occurrence.

6. On 5 February 2018, Ms Wellington objected to the original care decision.

7. On 6 April 2018 an objections officer made two decisions:

   ·         The first decision was a decision that there was no change in care from 8 June 2017; i.e. Mr Rolex continued to provide 28% care from 8 June 2017.

   · The second decision was a decision that because Ms Wellington had not objected to the original care decision within 28 days of being notified of the decision and there had not been special circumstances preventing her from objecting within time, the first decision took effect from the date that Ms Wellington objected, i.e. 5 February 2018: section 87AA of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”).

8. The matter it is further complicated by the following:

   ·         In a separate care decision, the CSA recorded Mr Rolex as providing 78% care from 2 August 2017. I am not reviewing that care decision. That care decision superseded the effect of the objections officer’s decisions dated 6 April 2018 for child support purposes.

   ·         In another separate care decision, an objections officer recorded Mr Rolex as providing 87% care from 21 October 2017 (although the change in care occurred on an earlier date). I am not reviewing that care decision. That care decision also superseded the effect of the objections officer’s decisions dated 6 April 2018 for child support purposes.

   ·         The objections officer’s first decision dated 6 April 2018 did affect Ms Wellington’s entitlement to family tax benefit due to differences in the child support legislation and the family tax benefit legislation. I am not reviewing Centrelink’s decisions concerning Ms Wellington’s entitlement to family tax benefit.

9. On 9 April 2018, Mr Rolex applied for further review by this Tribunal. It was unclear whether he had applied for review of the objections officer’s first decision, or her second decision, or both of her decisions. I conducted a hearing on 31 May 2018. I spoke to Mr Rolex and Ms Wellington by conference phone. Mr Rolex stated, and I accept, that he had only sought review of the objections officer’s first decision.

10. It was clear from the hearing papers that the parents were at cross-purposes concerning the substantive issue. Mr Rolex had stated to the CSA, and he reiterated at the hearing, that there had been a gradual increase in his general pattern of care. Broadly speaking, that pattern of care as at June 2017 consisted of two nights of care during school terms as well as some care during school holidays and some additional care at other times. According to Mr Rolex, the “additional care” included a block of care that commenced on 8 June 2017 and I gather that he reported the change in care from that date for that reason.

11. Ms Wellington had a different focus. Her written submissions included the following:

    In June and July 2017 I had three unusual events occur. My grandmother turned 100 and lives in [City 1] and I travelled to celebrate her birthday with family and could not afford the airfares to take my sons with me. I was in [City 1] 8^th - 13^th June.

    Then after Cyclone Debbie had hit Queensland, I was deployed by [Agency 1] to Mackay from 26^th June to 7^th July. ...

    Then my grandmother who turned 100 passed away and I returned to [City 1] for her funeral from 18^th - 21^st July.

12. Both parents kept records of their care of [Child 1]. Mr Rolex provide a summary of his records to the Tribunal prior to the hearing. According to his records he provided 105 nights of care during the 213 nights from 30 December 2016 to 30 July 2017, which equates to 49.3%

13. The 2016-17 Christmas school holidays commenced on 10 December 2016 and Mr Rolex provided care during the latter part of those holidays. According to Mr Rolex’s records he provided 105 nights of care during the 233 nights from 10 December 2016 to 30 July 2017, which equates to 45.1%.  

14. At the hearing I focused on the period from 10 December 2016 to 7 June 2017, thereby excluding the periods on which Ms Wellington had focused and which she submitted were anomalous and not representative of the parents’ general pattern of care. According to Mr Rolex’s records he provided 77 nights of care during the 180 nights from 10 December 2016 to 7 June 2017, which equates to 42.7%.

15. Ms Wellington stated that she had not checked Mr Rolex’s records against her own records. She did not provide a summary of her records prior to the hearing. She did so during the hearing. According to her records, Mr Rolex provided the following nights of care during the months of January to May 2017: 23, 12, 8, 19 and 11. According to her records he also provided care on the night of 3 June 2017. She did not have her 2016 records with her during the hearing. Assuming that Mr Rolex’s records are correct in respect of his provision of care on 30 and 31 December 2016, he provided 76 nights of care during the 180 nights from 10 December 2016 to 7 June 2017, which equates to 42.2%.

16. On any view of the evidence provided to the Tribunal, when Mr Rolex notified the CSA on 7 July 2017 of a change in the care that he had been providing, and was likely to continue to provide, a pattern of care that equated to at least 42% care. At the hearing, Mr Rolex effectively submitted that recording him as providing 42% care would fairly reflect his pattern of care as at June 2017. He did not seek to be recorded as providing a higher percentage of care. I accept his submission on that issue.

17. It is apparent from the evidence set out above that the change in care occurred more than 28 days prior to 7 July 2017. For the reasons that follow it is not necessary to determine exactly when the change in care occurred.

18. The Assessment Act relevantly provides for the making of care decisions based on the pattern of care that a parent “has had, or is likely to have,” during the relevant care period: section 50 of the Assessment Act. When Mr Rolex contacted the CSA on 7 July 2017 he had been providing, and was likely to continue to provide, a pattern of care that equated to 42% care.

19. The parents’ provision of care was not governed by a written care arrangement such as a Court Order. In those circumstances the date of effect of the care decision is governed by section 54B of the Act. Mr Rolex did not notify the CSA of the change in care within 28 days of its occurrence and so the change in care has effect from the date of notification, i.e. 7 July 2017.

20. The above decision is subject to any consequences that flow from Ms Wellington’s belated objection to the original care decision. She was notified of the original care decision in a letter dated 16 August 2017. She objected to that decision on 5 February 2018. Section 87AA of the Registration Act relevantly provides that if a person objects to a care decision more than 28 days after being notified of the care decision, and the care decision is varied or set aside, then the new care decision has effect from the date that the person objected. An exemption applies if there were special circumstances that prevented the person from objecting within 28 days after being notified of the care decision. As noted earlier, the objections officer’s second decision was based on a finding that there had not been special circumstances preventing Ms Wellington from objecting within time.

21. At the hearing, Ms Wellington said she contacted the Tribunal registry shortly after the objections officer made her decision with the intention of seeking review of the objections officer’s second decision. She said she spoke to a registry employee who stated that the Tribunal would review the objections officer’s decision and that the matters she was seeking to have reviewed could be addressed at the hearing. That may have occurred. There is a brief note that Ms Wellington contacted the registry on 30 April 2018. In any event, applications for review can be made over the telephone. It appears that the hearing papers were prepared on the basis that Mr Rolex had sought review of both of the objection’s officer’s decisions, hence to the two review numbers. I decided to accept Ms Wellington’s statement during the hearing as an application for review.

22. One of the requirements of section 87AA is that the original care decision is varied or set aside. For the reasons stated above, I will be setting aside the objections officer’s decision and effectively reinstating the original care decision, i.e. the original care decision will not have been varied or set aside. Section 87AA does not apply.

DECISION

The objections officer’s care decision dated 6 April 2018 is set aside and, in substitution, the Tribunal makes a care decision that Mr Rolex is recorded as providing 42% care and Ms Wellington is recorded as providing 58% care to [Child 1] from 7 July 2017, i.e. the Tribunal reinstates the original care decision.

The objections officer’s decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside and, in substitution, the Tribunal decides that section 87AA does not apply.