Rowley and Rowley (Child support)

[2018] AATA 1472

Rowley and Rowley (Child support) [2018] AATA 1472 (20 February 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/BC012916

APPLICANT:  Ms Rowley

OTHER PARTIES:  Child Support Registrar

Mr Rowley

TRIBUNAL:Member S Letch

DECISION DATE:  20 February 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

(a)the existing care determination recording care for [Child 1] as 50% to each of Mr Rowley and Ms Rowley ought not have been revoked;

(b)the Tribunal refuses to make a determination pursuant to section 95N of the Child Support (Registration and Collection) Act 1988, the result being that the date of effect of the decision in (a) is 16 November 2017, the date Ms Rowley applied for review by the Tribunal.

CATCHWORDS
Child Support – Percentage of care – Determination of the likely pattern of care – No change to the pattern of care - Decision under review set aside and substituted - Date of effect of the Tribunal’s decision - Whether special circumstances prevented the application being lodged on time - Refusal to make a determination under subsection 95N(2)

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. Ms Rowley and Mr Rowley are the parents of [Child 1], born February 2002. 

2. On 13 February 2017, Mr Rowley advised the Department of Human Services (“the Department”) that, from 2 January 2017, there had been a change in [Child 1]’s care. He advised that care for [Child 1] had changed to 63% to him, and 37% to Ms Rowley.  Immediately prior to 2 January 2017, [Child 1] had been recorded as being in the 50% care of each parent.  

3. On 1 April 2017, the Department declined to accept Mr Rowley’s claim for a change in recorded care. In other words, care for [Child 1] remained recorded as 50% to each parent. 

4. On 6 April 2017, Mr Rowley objected to the decision. On 9 June 2017, an objections officer allowed the objection and decided that care for [Child 1] should be recorded as 64% to Mr Rowley and 36% to Ms Rowley from 2 January 2017. As Mr Rowley notified the change more than 28 days after it occurred, the decision took effect from 13 February 2017.

5. On 16 November 2017 (notably, more than 28 days after the objection decision), Ms Rowley applied to this Tribunal for review of the objections officer decision.

6. The Tribunal conducted a hearing on 19 January 2018. Both parties participated in the hearing by conference telephone, and both gave sworn evidence. Following the hearing, Ms Rowley provided to the Tribunal additional materials; Mr Rowley was provided copies of Ms Rowley’s additional materials and given an opportunity to respond. The Tribunal did not receive a response from Mr Rowley.

7. The Tribunal accepted into evidence the section 37 of the Administrative Appeals Tribunal Act 1975 Statements and Documents provided by the Department (“Exhibit 1”), and additional materials submitted by Ms Rowley numbering a total of 18 pages (“Exhibit 2”).

ISSUES

1. The key statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Tribunal must determine whether the existing care determination should be revoked. If so, the Tribunal must make a new care determination.

2. The Tribunal must also consider the effect of Ms Rowley’s late application to the Tribunal.

CONSIDERATION

1. The law relevant to this decision is contained in the Act. Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination ought to be revoked. The date of effect is when the previously determined pattern of care ceased: subsection 54G(2).

2. If section 54G does not apply, section 54F provides that if the Department was notified, or otherwise became aware, of the change within 28 days after that day, then revocation takes effect the day before the change of care day (subparagraph 54F(2)(ii)). However, if the Department is notified or becomes aware more than 28 days after the change of care day that the care of the child no longer corresponds with the existing care determination, the revocation takes effect on the day that the Department was so notified.

3. In simple terms, Ms Rowley’s case is that care for [Child 1] has always been “50/50”, on a “week about” basis, since separation in 2014. That has always been the agreed pattern of care. She told the Tribunal she had kept her own calendar which would prove that was so, and undertook to supply copies of it following the hearing (the Tribunal received further materials, discussed later in these reasons). She said that [Child 1] would stay with her if Mr Rowley was away with work, and “vice versa” – she suggested there were “swings and roundabouts”. She was the victim of a very serious assault on [date relevant to this review]; she had missed a period with [Child 1] as she not wanted him to see her.

4. Ms Rowley’s calendar she submitted to the Tribunal covered the 2017 calendar year. She advised that, over the calendar year, she had some 195.5 “days” (Ms Rowley tallied a number for each month in which it appears she included all days on which she had [Child 1], even if she did not have [Child 1] for the following night – the Tribunal considered this would result in on overstatement of the total number of nights [Child 1] was in her care). Ms Rowley also supplied a number of (brief) statutory declarations from close family members all attesting to a “50/50” arrangement for [Child 1] since 2014.

5. Mr Rowley maintained the accuracy of his records. According to his calendar, he had [Child 1] for 130 out of the possible 219 nights from 26 September 2016 to 1 May 2017, or 59% (for the period 26 September 2016 to 1 January 2017, Mr Rowley recorded he had [Child 1] for 54 out of 98 nights, or 56%). Mr Rowley said that when he was required to work overseas, he would arrange things so he travelled when he was not scheduled to have [Child 1]. Mr Rowley was not aware of the assault Ms Rowley suffered in January 2017.

6. In relation to her late application to the Tribunal, Ms Rowley told the Tribunal that she had “a lot to think about” during this period. She said she had a “DVO”, and other legal matters which occupied her mind. She indicated she was “fatigued” by the child support process; it “got all too much”. At the time she was not receiving child support; now that she is required to pay support, she wants the care for [Child 1] to be recorded accurately. Mr Rowley suggested there were no extenuating circumstances which prevented Ms Rowley applying to the Tribunal – he said she had “plenty of opportunities”. 

7. In the Tribunal’s assessment, it appears the broad agreed pattern between the parties was for [Child 1]’s care to be shared equally. It appears the arrangement had some flexibility to the benefit of both parties around work and other commitments.

8. The Tribunal observes that the cases in this area urge a sensible and pragmatic approach, and allow for tolerable deviations. In Re Nowicz and Secretary, DFaCS [2001] 65 ALD 314, the Administrative Appeals Tribunal relevantly observed:

   Once established, it is appropriate that variation [to the percentage of care] only occur where there is to be a significant departure in an established pattern of care. This may occur, for example, when contact weekends are changed from fortnightly to monthly. It would not occur when the odd weekend contact visit was missed, or a child stayed for one particular weekend in addition to the contact weekend in a given fortnight during a particular assessment period.

9. Similarly, in Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159 (24 February 2006), Deputy President Hack observed, at paragraph 26, that:

   In approaching the task of determining the pattern of care I have considered the matter with a broad brush. The Guide, rightly in my view, accepts that no adjustment to FTB is warranted for minor variations in care arrangements.

10. Ms Rowley’s calendar for 2017, the accuracy of which the Tribunal has no reason to doubt (for example, the entries in March 2017 and April 2017 are consistent with Mr Rowley’s records), suggests the number of nights for the year were more or less shared equally (adjusting Ms Rowley’s figure of 195 “days” for the night at the end of each of Ms Rowley’s “care blocks” where [Child 1] likely spend the night with Mr Rowley). The Tribunal accepted that Ms Rowley had missed a period in January 2017 as a result of the serious assault she suffered; this period, of itself, is not enough to disrupt the general pattern of care. 

11. The Tribunal will apply a “broad brush”. The Tribunal is not satisfied that there was a material change to the pattern of care. The existing determination allocating 50% to each parent ought not to have been revoked.  

What is the date of effect of the decision? 

1. Ms Rowley did not apply for review of the objections decision until 16 November 2017, more than 28 days after she was notified of the objections decision dated 9 June 2017. 

22.Section 95N of the Child Support (Registration and Collection) Act 1988 provides that a review decision will have effect from the date the application for review was made if the application was lodged more than 28 days after the objection decision. However, if there are special circumstances that prevented the person from lodging the application within the 28 days, the Tribunal may allow for a longer application period.

1. The normal vicissitudes of life are not “special”. Whilst Ms Rowley undoubtedly had other things on her mind, and gave priority to other matters, the Tribunal is not satisfied she was prevented from making an application to the Tribunal within the statutory 28 day period.

2. Accordingly, the Tribunal finds no proper basis to apply section 95N in Mrs Rowley’s favour. The result will be that, in practical terms, for the period 13 February 2017 to 15 November 2017, care for the purposes of the child support assessment will be that reflected by the objections officer (namely, 64% to Mr Rowley and 36% to Mrs Rowley).

3. As the Tribunal has reached a different conclusion to the objections officer, the decision under review will be set aside. 

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

(a)the existing care determination recording care for [Child 1] as 50% to each of Mr Rowley and Ms Rowley ought not have been revoked;

(b)the Tribunal refuses to make a determination pursuant to section 95N of the Child Support (Registration and Collection) Act 1988, the result being that the date of effect of the decision in (a) is 16 November 2017, the date Ms Rowley applied for review by the Tribunal.