Rowan and Rowan (Child support)

[2022] AATA 954

Rowan and Rowan (Child support) [2022] AATA 954 (4 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC022955

2021/PC022979

APPLICANT:  Ms Rowan

OTHER PARTIES:  Child Support Registrar

Mr Rowan

TRIBUNAL:Member M Martellotta

DECISION DATE:  4 March 2022

DECISION:

a)    The care percentage decision under review is affirmed.

b) The decision to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside and substituted with a new decision that, as there are no special circumstances which prevented lodgement of an objection within 28 days, the date of effect of the allowed care percentage decision is 23 October 2021.

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 affirmed

CHILD SUPPORT – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – 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 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. The applicant and the second party are parents of three children. Prior to these matters arising the existing care percentage recorded by Services Australia (the Agency) was as follows:

   a)in relation to [Child 1] 100% care to the applicant and 0% care to the second party.

   b)in relation to the children [Child 2] and [Child 3] 72% care to the applicant and 28% to the second party.

1. On 5 May 2021 the applicant advised the Agency of a change in the care as of that date. The parties were in agreement and on 18 May 2021 the Agency made a new care decision as follows:

   a)in relation to [Child 1] 86% care to the applicant and 14% care to the second party.

   b)in relation to the children [Child 2] and [Child 3] 65% care to the applicant and 35% to the second party.

2. The Agency sent notice of their decision. The second party objected to that decision on 23 October 2021.

3. On 10 December 2021 an Agency decision maker decided to make the following decisions:

   a)in relation to [Child 1] 82% care to the applicant and 18% care to the second party.

   b)in relation to the children [Child 2] and [Child 3] 58% care to the applicant and 42% to the second party.

   c)there were special circumstances which prevented the second party from lodging his objection within 28 days and as such the date of effect of their decisions is 5 May 2021 and not the date of the objection made on 23 October 2021.

4. The applicant lodged an application with the tribunal seeking independent review of the decision on 16 December 2021. The tribunal conducted a hearing on 2 March 2022. The applicant and second party attended by conference telephone and gave evidence under affirmation.

5. The tribunal and the parties had been provided with documents prepared by the Agency (pages 1–174). The applicant also provided documents A1–A12.  Post hearing the second party also provided written submissions reflecting his evidence as provided at hearing (B1‍–‍B6).

6. Post hearing the second party made written submissions which the tribunal takes as an application that the member recuse themselves on the grounds of apprehended bias. The member has considered the application. Upon review of the hearing the tribunal is satisfied that the conduct of the hearing afforded all parties procedural fairness. The tribunal notes that in making its decision it has considered, agency documents, written submissions provided by the applicant, oral submissions and evidence provided at hearing by the parties as well as post hearing written submissions provided by the second party. For these reasons’ tribunal refuses the application to recuse.

ISSUES

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

2. Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide).  The tribunal is not bound by law to apply the policy as set out in the Guide but provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.[1]

   [1] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

3. The issues which arise in this case are:

   i.Should the existing determination of percentage of care be revoked? If so, from when should it be revoked? Should a new determination of a percentage of care be made? If so, what is the percentage of care under the new determination? From when should it apply?

   ii.Should a determination be made under subsection 87A(2) of the Child Support (Registration and Collection) Act 1988 (the RC Act)? (What is the date of effect?)

CONSIDERATION

Issue 1 – Should the existing determination of percentage of care be revoked? If so, from when should it be revoked? Should a new determination of a percentage of care be made? If so, what is the percentage of care under the new determination? From when should it apply?

1. Section 50 of the Act requires the Agency to determine a person's percentage of care where a person has had, or is likely to have a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.

2. Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out on the number of nights. A new percentage of care can be determined by the Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.

3. In this case it was apparent that the main concern of the applicant was the date of effect and the impact that this aspect of the decision had on the assessment.

4. In summary the parties agree that there was a verbal agreement to change the level of care in May 2021 which meant that the second party was to have an increased level of care. The parties also agree that as part of their initial advice to the Agency they overlooked the inclusion of the second party’s care over the school holidays and that the updated percentage as concluded in the objection decision now reflects that care.

5. The tribunal notes that the applicant stated at hearing that she does not usually ‘quibble’ over dates here and there and made the observation that [Child 1] has probably not spent the nights in care that were anticipated at the time – however, the applicant also stated that she did not keep a diary or record of the care and so had no way of disputing the nights in care as identified by the second applicant and she agrees that this was what was intended. As part of his objection the second party provided a detailed schedule of nights in care.

6. In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to the Agency of a change in the care arrangement. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same.

7. As noted the legislation requires a percentage of care for a parent to be determined on the pattern of care that a parent has had or is likely to have for a child in a care period. This pattern of care can be established either according to a care arrangement or the actual care that is taking place. The tribunal is first required to consider whether the existing determination must be revoked and if so what the new determination should be.

8. The primary decision-maker’s (that is the Agency’s) essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Agency. It is not appropriate, in undertaking that task, to assess care based on what happened from initial notification to the Agency up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Agency.

9. The tribunal is satisfied and finds that on the available evidence there was an existing determination in place pursuant to sections 49 and 50 of the Act (prior to the applicant advising of a change in care) by which:

   a)in relation to [Child 1] the applicant had 100% care and the second party had 0% care.

   b)in relation to [Child 2] and [Child 3] the applicant had 72% care and the second party had 28% care.

10. The tribunal is also satisfied and finds that there was a change in care from 5 May 2021 whereby the care was as follows:

    a)in relation to [Child 1] 82% care to the applicant and 18% care to the second party.

    b)in relation to [Child 2] and [Child 3] 58% care to the applicant and 42% to the second party.

11. The tribunal then considered whether the care determination in relation to the children is to be revoked. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care of a child that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made (section 54F of the Act).

12. Section 55C of the Act details how the percentage of care affects the cost percentage. In this case the change in care percentage results in a change in the cost percentage. The tribunal concluded that the existing determination is to be revoked pursuant to section 54F of the Act. In this matter the revocation of the existing care percentage takes effect the day before the change of care day namely 4 May 2021.[2]

    [2] Subsection 54F(2) of the Act.

13. Having revoked the existing determination, the tribunal must make a new determination of percentage of care under either section 49 or section 50 of the Act. The tribunal concluded that in this matter there is a likely pattern of care for the children and that as such sections 49 and 50 of the Act[3] apply.

    [3] The change in percentage of care when it is 100% is made under section 50 and when it is 0% is made under section 49 of the Act.

14. Section 54B of the Act sets out the date of effect of the new determination of percentages of care. The percentage of care applies to each day in a child support period on and from the ‘application day’. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determination of percentages of care is the day after the revocation of the existing determination. The tribunal has revoked the existing determination with effect from 6 December 2018 and the new determination applies from 5 May 2021.

Issue 2 – What is the date of effect of the decision?

1. To a large extent, this was the main issue raised by the applicant at hearing. She said that she disagrees with the Agency’s conclusion that special circumstances prevented the second party from lodging his application within 28 days and that the Agency was wrong to exercise the discretion that arises under subsection 87AA(2) of the RC Act. She noted that she has always acted promptly in her dealings with the Agency and that as a result of the Agency making the date of effect 5 May 2021 she has had to repay $2,700 which is not the correct outcome.

2. She says assertions that the second party made about pressures of work and mental health struggles were not matters that amount to special circumstances. She noted that the second party has being taking medication for depression and anxiety for some 11 years and there was nothing to suggest that he was overwhelmed by his employment. She also notes that the second party was able to draft and serve her with proposed Family Court orders during this period which indicates that he had the administrative capacity to manage his affairs.

3. The second party said that he was aware of the decision but at the time he was overwhelmed be personal stresses because it had been a difficult year, his mother had been diagnosed with [a medical condition] and he was trying to provide her with support, his work was very demanding and he was very personally and mentally stressed. Post hearing he provided documents showing that he took a number of days of personal leave in 2021. In response to questions asked by the tribunal the second party stated that he was not the only family member providing support to his mother.

4. The second party also stated that the applicant is not disadvantaged as the correction of the care percentage on objection is the correct decision and so as a matter of justice it should apply from May 2021.

5. The Agency documents confirm that the applicant and second party were both sent a notice of decision dated 18 May 2021 which clearly sets out their objection rights and the requirement to lodge an objection within 28 days from the date of receipt of the decision notice. As noted, the second party accepts, he received the notice of decision.

6. According to the objection lodged by the second party with the Agency on 23 October 2021 he stated that he did not lodge his objection within the prescribed period due a number of reasons including; 2021 being a difficult year, work pressures, frequent work related travel, not realising he was required to object, poor state of mental health – noting that; “…whilst the mental health condition has not prevented me from being able to conduct tasks such as this, it is a contributor to falling behind in the various administrative tasks we all need to conduct at time as part of life…I request leniency, I recognise I should have responded within the required timeframe but did not and for that I apologise.”[4]

   [4] Page 97

7. Section 87AA of the RC Act provides 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) provides an exception to that general rule if the objections officer is satisfied that there are special circumstances that prevented the person from lodging the objection with 28 days, then the objections officer may determine that the section applies as if the person had objected within time.

8. The legislation does not define special circumstances, but the Family Court in Gyselman & Gyselman [1992] FLC 92-279 has held: ‘as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary’. The Guide at 4.1.8 notes that:

   The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe…some examples…may include:

   ·the parent was seriously ill or had an accident…

   ·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.

9. In this matter the Agency concluded that the work and personal stress factors amounted to special circumstances. The tribunal does not agree. Whilst the tribunal is sympathetic to the matters described by the second party the tribunal does not consider that these are matters which prevented him from lodging an application within the time period prescribed by Parliament. He had notice of the decision in May 2021. He advised the Agency that work-related stress and travel combined with poor mental health caused him to fall behind in administrative tasks. At hearing Mr Rowan told the tribunal that he was also preoccupied with his mother’s [medical] diagnosis and had to take personal leave. In his objection application to the Agency, as noted ,he recognises that “…I should have responded within the required timeframe but did not”.[5]  In the tribunals view the life events described by the second party and his resultant failure to keep up to date with his administrative tasks cannot be described as matters that are out of the ordinary.

   [5] Page 97

10. Authorities confirm the prima facie rule that proceedings outside of legislated prescribed periods will not be entertained unless it is proper to do so. Parliament has prescribed timeframes in child support legislation for lodging objections to decisions made by the Agency.

11. In the tribunal’s view there were no special circumstances which prevented the second party from lodging his application within the mandated 28 days and as such the date of effect of the allowed care percentage decision is the date the objection was made, namely 23 October 2021.

DECISION

a)    The care percentage decision under review is affirmed.

b) The decision to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside and substituted with a new decision that, as there are no special circumstances which prevented lodgement of an objection within 28 days, the date of effect of the allowed care percentage decision is 23 October 2021.