Saddler and Mitchison (Child support)

[2023] AATA 1187

Saddler and Mitchison (Child support) [2023] AATA 1187 (16 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC025036

APPLICANT:  Ms Saddler

OTHER PARTIES:  Child Support Registrar

Mr Mitchison

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  16 March 2023

DECISION:

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Ms Saddler provides 65 per cent care of [Child 1] and Mr Mitchison provides 35 per cent care from 11 February 2022, notified on 18 March 2022.

(b) The Tribunal declines to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 15 November 2022.

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 – late application for review – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines 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. This review is about a change to the percentage of care determinations for Ms Saddler and Mr Mitchison in respect of their child [Child 1] (born February 2014).  There has been a child support assessment in place for [Child 1] since 21 May 2014.

2. From 21 May 2014 the child support assessment reflected Ms Saddler as having 100 per cent care and Mr Mitchison as having 0 per cent care of [Child 1].

3. On 18 March 2022 Mr Mitchison notified the Child Support Agency of a change to the care arrangements stating that he provides 40 per cent care and Ms Saddler provides 60 per cent care of [Child 1] from 5 February 2022.

4. On 8 June 2022 the Child Support Agency made the decision to reflect that Ms Saddler provides 72 per cent care and Mr Mitchison provides 28 per cent care of [Child 1] from 11 February 2022 but with effect from 11 February 2022 for Ms Saddler and from 18 March 2022 for Mr Mitchison.

5. On 13 June 2022 Mr Mitchison objected to this decision and on 29 July 2022 the Child Support Agency allowed the objection in part and made the decision to reflect that Ms Saddler provides 57 per cent care and Mr Mitchison provides 43 per cent care of [Child 1] from 11 February 2022 but with effect from 11 February 2022 for Ms Saddler and from 18 March 2022 for Mr Mitchison (the objection decision).

6. On 15 November 2022 Ms Saddler applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 16 March 2023.  Ms Saddler and Mr Mitchison gave evidence on affirmation by Microsoft Teams audio.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (247 pages).  The Tribunal also received additional information from Ms Saddler prior to the hearing and a copy was distributed to the parties (A1–A28).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Ms Saddler told the Tribunal that care of [Child 1] was the subject of court orders which allowed Mr Mitchison to have care of four nights per fortnight and half the school holidays.  Ms Saddler said she did not dispute care changed when Mr Mitchison began having care in accordance with the final ‘spend time’ section of the court orders from 11 February 2022.

2. Ms Saddler explained the decision made by the Child Support Agency did not take into account that, in keeping with the orders, care during school term was to be suspended when holiday care commenced.

3. The Tribunal notes in evidence provided by Ms Saddler a copy of court orders handed down by the Federal Circuit of Australia on 1 June 2021.  In relation to the care of [Child 1] clause 9 of the orders states Mr Mitchison is to have overnight care of four nights a fortnight during school terms and half the school holidays.  This clause also stipulates that, “for the purposes of school holiday time, school term time shall be suspended”.

4. Ms Saddler said [Child 1] attended [College 1] and she had provided the Tribunal with the 2022 term dates for the school.  Ms Saddler added that, according to her calculations, Mr Mitchison should have care of around 128 night every year.

5. The Tribunal notes in evidence from Ms Saddler a copy of the term dates for [College 1] for 2022.  The school calendar shows the following term dates:

   ·     Term 1 – 31 January 2022 to 8 April 2022

   ·     Term 2 – 27 April 2022 to 24 June 2022

   ·     Term 3 – 18 July 2022 to 23 September 2022

   ·     Term 4 – 11 October 2022 to 8 December 2022.

6. Mr Mitchison said he agreed the parents were following the court-ordered care and his care of [Child 1] changed from around 11 February 2022.  Mr Mitchison said he was having overnight care of four nights per fortnight and half the school holidays.

7. Mr Mitchison added that [Child 1] was attending [College 1] and he was happy for his care to be calculated in accordance with the court orders dated 1 June 2021.

8. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. Care is generally assessed over a 12-month care period commencing from the day on which the actual care of the child changed.

9. It is not in dispute and the Tribunal finds that care of [Child 1] changed on 11 February 2022.  The parents also agree that care of [Child 1] is in keeping with court orders with Mr Mitchison providing care of four nights per fortnight and half the school holidays.

10. The school calendar for [College 1], where [Child 1] attends, shows there are 250 nights in total during school terms and 115 nights in total during school holidays.  The Tribunal is satisfied, based on the evidence provided, that a new pattern of care for [Child 1] commenced from 11 February 2022 with Mr Mitchison providing care of 128 nights and Ms Saddler providing care of 237 nights.

11. The existing percentages of care reflected in the assessment for [Child 1] were 100 per cent care to Ms Saddler and 0 per cent care to Mr Mitchison. The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

12. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

13. The Tribunal finds that Mr Mitchison notified the Child Support Agency of the change in care on 18 March 2022. As this is more than 28 days after the change occurred on 11 February 2022, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Saddler and Mr Mitchison under section 50 of the Act.

2. For the reasons outlined above the Tribunal finds that Ms Saddler provides 65 per cent care and Mr Mitchison provides 35 per cent care of [Child 1] from 11 February 2022 but with effect from 11 February 2022 for Ms Saddler and from 18 March 2022 for Mr Mitchison.

Date of effect of new care percentage decision

1. Section 95N of the R&C Act determines the date of effect of a Tribunal decision to set aside a care percentage decision.

2. Ms Saddler applied to the Tribunal on 15 November 2022 for a review of the objection decision made by the Child Support Agency on 29 July 2022.  The Tribunal is satisfied Ms Saddler was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 4 August 2022.  Given her application to the Tribunal was not within 28 days of receiving notice of this objection decision, the date of effect of any new decision by the Tribunal is the date she applied for review.

3. The Tribunal may extend the 28 days if there are special circumstances that prevented Ms Saddler from applying for review within this period.

4. While the R&C Act does not define special circumstances, the Child Support Guide (the Guide), at 4.1.8, provides some clarification. It states the circumstances must be “sufficiently special for the applicant to receive the benefit of an extension”. Examples include the parent being seriously ill, suffering a personal trauma, a natural disaster causing damage to the parent’s property, communication difficulties or the parent reasonably relied upon inaccurate or misleading information.

5. Although not bound by policy as set out in the Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

6. Ms Saddler told the Tribunal when she realised an error had been made in the care calculations she contacted the Child Support Agency and was advised that her only option was to seek a review by the Tribunal and so she then submitted her application.

7. Ms Saddler said when Mr Mitchison first objected to the decision made by the Child Support Agency he also filed a contravention order in the courts relating to the care of [Child 1].  Ms Saddler explained because she was working full-time she had found it difficult to deal with both the matter in the courts as well as child support issues.  Ms Saddler added that [Child 1] had also been unwell around that time.  She said this also meant she had less time to deal with other things such as child support.

8. Mr Mitchison told the Tribunal he had nothing to add in relation to the date of the application to the Tribunal made by Ms Saddler.

9. The notification of the objection decision provided by the Child Support Agency dated 4 August 2022 outlines what to do if Ms Saddler disagreed with the decision.  This includes asking the Tribunal to undertake a review “within 28 days from the date you receive this letter”.  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.  The Tribunal also notes in evidence that during a discussion with a child support officer on 20 September 2022 in relation to the objection decision, Ms Saddler was informed her next step was to submit an appeal to the Tribunal and was also informed of the relevant timeframes.  Ms Saddler did not submit such an appeal until 15 November 2022.

10. The Tribunal is not satisfied the circumstances as described by Ms Saddler were sufficiently special such that they prevented her from applying for a review withing the timeframe prescribed.  Accordingly, the Tribunal will not extend the 28-day period and its decision is effective from the date of the application made by Ms Saddler, being 15 November 2022.

DECISION

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Ms Saddler provides 65 per cent care of [Child 1] and Mr Mitchison provides 35 per cent care from 11 February 2022, notified on 18 March 2022.

(b) The Tribunal declines to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 15 November 2022.