Rowell and Child Support Registrar (Child support)

[2020] AATA 2039

Rowell and Child Support Registrar (Child support) [2020] AATA 2039 (5 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC018594

APPLICANT:  Mr Rowell

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member Y Webb

DECISION DATE:  05 May 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 6 July 2019 care percentages in relation to the child are 79% to Mr Rowell and 21% to [Ms A].

Pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 the Tribunal decided not to make a determination and therefore its decision will be applied to the child support assessment from 10 March 2020 being the date of lodgement of Mr Rowell’s application for review to the Tribunal.

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 – whether there were special circumstances that prevented the application for review being lodged in time – special circumstances do not exist – tribunal refuses to make a determination – the date of effect of the tribunal’s decision is the date the application for review was lodged

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 review is about the percentages of care of Mr Rowell and [Ms A] in relation to their child (“the child”).  The child is now 14 years old.

2. The child support case was first registered with the Department of Human Services (“Child Support Agency”) on 26 October 2009.

3. From 1 May 2016 the care percentages in relation to the care of the child were recorded as 100% to Mr Rowell and 0% to [Ms A].

4. On 8 July 2019, [Ms A] contacted the Child Support Agency and notified that she was having care of the child for six nights a fortnight during school terms and for half of the school holidays.  She advised that this was 162 nights a year (120 nights in school terms and 42 nights in school holidays).  She advised that this was the care that was occurring from 6 July 2019.  The Child Support Agency calculated that this would be 44% care to [Ms A] and 56% care to Mr Rowell.

5. The Child Support Agency attempted to contact Mr Rowell without success.  It also wrote to him inviting him to respond to [Ms A]’s assertion regarding care of the child.

6. Mr Rowell did not respond and on 29 August 2019 the Child Support Agency decided that the actual care that was occurring from 6 July 2019 was that [Ms A] had 44% care (162 nights in a year ) and that Mr Rowell had 56% care (203 nights in a year).

7. The Child Support Agency confirmed that it did not inform Mr Rowell of its decision until it did so in its letter dated 12 September 2019.

8. On 2 October 2019 Mr Rowell telephoned the Child Support Agency to lodge an objection to the decision. 

9. On 22 October 2019 the Child Support Agency informed Mr Rowell that the date of the original decision to change the care percentages to 56% to him and 44% to [Ms A] from 6 July 2019 would be 12 September 2019.  The Child Support Agency advised that Mr Rowell had until 29 October 2019 to object and it recorded his objection date as 22 October 2019.

10. Mr Rowell contended that the care was in accordance with a written agreement made on 5 December 2017.  He provided a letter from his lawyer to Centrelink dated 5 October 2018 which confirmed that the parties attended a Family Dispute Resolution Conference on 5 December 2017 at which a Head of Agreement was reached.  The letter stated that an engrossed copy of the Head of Agreement reached on that date was annexed.  In brief summary, the Head of Agreement provided that [Ms A] would have care for three nights per fortnight in school terms and school holidays.  

11. On 16 December 2019, an objections officer disallowed Mr Rowell’s objection.

12. The objections officer did so on the basis that there was insufficient evidence provided by either parent to the extent that the officer could not be satisfied that the decision made on 12 September 2019 was incorrect.

13. On 10 March 2020, Mr Rowell requested review by the Administrative Appeals Tribunal (the Tribunal).

14. Mr Rowell attended the hearing on 5 May 2020 by way of a telephone conference and gave evidence on affirmation. 

15. [Ms A] was invited to participate in the hearing but she did not respond and was removed as a party.

16. The Child Support Agency provided documents relevant to this matter and they were marked as a bundle as Exhibit C1.

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to the care of the child in the relevant care period?

   b)Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

3. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the care that a person has, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will apply unless or until a further change of care is notified and accepted).

4. The pattern can be established either according to a “care arrangement” (such as court orders or a parenting plan or other written agreement) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act). In this case, [Ms A] stated, when she contended that there had been a change of care from 6 July 2019, that there were no parenting plans or written agreements regarding care. However, Mr Rowell stated that the parents had agreed to the care arrangements as detailed in the Head of Agreement dated 5 December 2017 as provided by his lawyer to Centrelink (a copy of which was included in the C1 papers). The Tribunal notes that the Head of Agreement provided was not signed. Nevertheless, the Tribunal is satisfied that it was an informal agreement made and agreed by the parents as Mr Rowell and his lawyer confirmed.

5. The Agreement stated that the child would live with his father and spend time with his mother as follows:

   (a)   During school terms:

   (i)Week 1 from conclusion of school Thursday until 7.00 pm Saturday commencing 14 December 2017;

   (ii)Week 2 from conclusion of school Thursday to commencement of school Friday commencing 7 December 2017;

   (b)   During holidays

   (i)Week 1 from 9.00 am Thursday until 7.00 pm Saturday;

   (ii)Week 2 from 9.00 am Thursday until 7.00 pm Friday

6. The Agreement also contained brief provisions regarding special occasions with alternating Christmas Day care and with Mothers’ Day and the child’s birthday being agreed between the parents.

7. Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

8. In this case, Mr Rowell contended that nights were a suitable measure of the care of the child. The Tribunal was not able to speak with [Ms A] and her contact with the Child Support Agency regarding this matter was limited to the notes made when she contacted the Child Support Agency regarding the asserted change of care. However, in that notification the Child Support Agency’s notes record that [Ms A] referred to nights of care and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case. In relation to the care described in the informal Head of Agreement the Tribunal finds that the care was three nights a fortnight (78 nights) which is 21% to [Ms A]. Hence Mr Rowell’s care was 286 nights which is 79% (with the lower percentage rounded down in accordance with section 54D of the Assessment Act).

9. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1]  the Tribunal must take into account evidence of the care the person has had, or the actual care, up to the time of the original determination by the Registrar and evidence of what care the person is, or was, likely to have as at the “point in time” of the making of the original determination.

   [1] Paragraph 50(1)(a) of the Assessment Act

10. At the hearing Mr Rowell told the Tribunal that there had not been any change in the care from 6 July 2019 as asserted by [Ms A].  He stated that since December 2017 after he and [Ms A] agreed on the care arrangements and made the Head of Agreement the care has been in accordance with the Agreement. 

11. When the Tribunal queried why [Ms A] would have claimed a change in the care if there was no change Mr Rowell stated that [Ms A] was not pleased about having to pay child support to him and so she reported that her care had increased.  However, he said, that wasn’t true.

12. The Tribunal queried, why, if the care was 79% to him and 21% to [Ms A] was the care (prior to 6 July 2019) recorded as 100% to him.  Mr Rowell stated that the care went 100% to him when [Ms A] went to Melbourne for a period of time in 2016 and he had the full-time care of the child.  He stated that since then the care percentages have not been changed because [Ms A] was not liable to pay child support back then and there didn’t seem to be much point in changing it.

13. Mr Rowell stated that he did not know that [Ms A] had notified a change in care until he telephoned Centrelink to find out why his family tax benefit had reduced.  That was when he discovered that the care percentages had been changed.  He stated that he never received the letter about the original decision or the letter with the objection decision.  He stated that although he is supposed to receive letters electronically through the child support app, there is never anything there.  He stated that there is never a single letter on his electronic history. 

14. The Tribunal found Mr Rowell to be genuine and credible in his evidence and the Tribunal accepts his statements that the actual care that has been occurring since 6 July 2019 has been 79% to Mr Rowell and 21% to [Ms A]. 

15. 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 Assessment Act.

16. In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the 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%

1. Prior to 6 July 2019, the pre-existing care was that Mr Rowell had a care percentage of 100% (and a cost percentage of 100%) in relation to the child. [Ms A] had a care percentage of 0% and a cost percentage of nil. The Tribunal’s determination will mean that Mr Rowell will have a care percentage of 79% and a cost percentage of 76%. [Ms A] will have a care percentage of 21% and a cost percentage of 24%. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Assessment Act are met (and as section 54G of the Assessment Act does not apply because the Tribunal’s determination has not resulted in either of the parents having less than regular care), the pre-existing determinations of percentage of care must be revoked in accordance with section 54F. The revocation takes effect from 5 July 2019 being the day before the change of care day.

Tribunal time limits – the date of effect of the Tribunal’s decision

1. The Tribunal considered the date from which its decision should be applied to the child support assessment. 

2. Mr Rowell applied to the Tribunal for review of the objection officer’s decision of 16 December 2019 more than 28 days after the Child Support Agency stated that Mr Rowell was notified of the decision of the objections officer.  Mr Rowell’s application to the Tribunal was lodged on 10 March 2020.  This was approximately two and half months after the objection decision of 16 December 2019 which the Child Support Agency stated was posted to Mr Rowell on that same date.

3. Mr Rowell told the Tribunal that he did not receive a copy of the objections officer’s decision.  As detailed above Mr Rowell was adamant that he did not receive any letters electronically because for some reason the electronic history was always blank when he accessed it.  However the Child Support Agency claimed that the objections officer’s letter of 16 December 2019 was posted to Mr Rowell on that same date. 

4. The Tribunal found it very difficult to ascertain whether Mr Rowell was referring to the lack of notification from the Child Support Agency regarding the original decision or whether he was referring to the notification of the decision of the objections officer.  While the Child Support Agency confirmed that it had failed to notify Mr Rowell of its original decision it confirmed that it had notified him by post of the objections officer’s decision on 16 December 2019.  Within the C1 papers is a copy of the letter which was said to have been sent to Mr Rowell dated 16 December 2019.  On balance, the Tribunal considers it more likely than not that Mr Rowell was sent the objections officer’s decision by post on 16 December 2019.[2]  It was apparent that Mr Rowell was confused about what was happening with the care and did not realise for some time that if he wished to challenge the care decision he needed to seek review by the Tribunal.  While the Tribunal acknowledges and accepts that Mr Rowell did not deliberately delay his application to the Tribunal nevertheless due to his confusion, the Tribunal is satisfied that Mr Rowell lodged his application for review by the Tribunal more than 28 days after notification of the objection decision.

   [2] C1- page 2

5. The Tribunal had regard to section 95N of the Registration and Collection Act, which applies to this circumstance. Subsection 95N(1) states that if the decision under review is a decision on an objection to a care percentage decision, and the application for review was made more than 28 days after notification of the original decision, the new decision has effect, or is to be taken to have effect, on and from the day on which the application was made. In Mr Rowell’s case, this means that the decision of 79% care to him and 21% to [Ms A] takes effect from 10 March 2020 (unless subsection 95N(2) applies).

6. Subsection 95N(2) provides that if the Tribunal is satisfied that there are special circumstances that prevented Mr Rowell making his application for review by the Tribunal within 28 days, then other time limits may apply.

7. The Tribunal asked Mr Rowell whether there were any special circumstances which prevented him from applying for review earlier however Mr Rowell, as detailed above, did not believe that he had been notified of the objections officer’s decision.  However, the notes in the C1 papers regarding his contact with the Child Support Agency tend to indicate that he was querying the objections officer’s decision and wanting to dispute it. This does tend to suggest that Mr Rowell was aware that his objection to the original decision had been disallowed.  Mr Rowell also stated that he was unaware until some weeks later that he needed to request review by the Tribunal.  He was unaware of the process and did not know what to do or where to go to request further review.

8. The Tribunal accepts Mr Rowell’s statements regarding his confusion and lack of knowledge about the next steps following his objection being disallowed.   However, the Tribunal does not consider that Mr Rowell’s circumstances could be described as special or that his situation prevented him from lodging an application for review to the Tribunal within 28 days of receiving the notice of the objection officer’s decision of 16 December 2019.

9. Consequently, the Tribunal concludes that its decision of 79% care to Mr Rowell and 21% care to [Ms A] has a date of effect on the child support assessment from 10 March 2020 that being the date of his application for review to the Tribunal.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that from 6 July 2019 care percentages in relation to the child are 79% to Mr Rowell and 21% to [Ms A].

Pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 the Tribunal decided not to make a determination and therefore its decision will be applied to the child support assessment from 10 March 2020 being the date of lodgement of Mr Rowell’s application for review to the Tribunal.