Sherman and Child Support Registrar (Child support)

Sherman and Child Support Registrar (Child support) [2022] AATA 4012 (5 September 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC023365
APPLICANT:  Mr Sherman
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Member J Thomson
DECISION DATE:  5 September 2022
DECISION:

The decision under review is set aside, and in substitution, the existing care percentages of 78% to [Ms A] and 22% to Mr Sherman are revoked from 24 September 2020 and new care percentage determinations of 14% to Mr Sherman and 86% to [Ms A] are to apply from 25 September 2020.

The Tribunal determines pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Mr Sherman’s application for review was made within that period.

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 – whether there were special circumstances that prevented the application for review being lodged in time – special circumstances exist – tribunal decides 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

Mr Sherman and [Ms A] are the parents of [Child 1], born 2005.
Mr Sherman seeks review of an objection decision made by Services Australia (the Agency) on 27 February 2021. This decision disallowed his objection to an earlier Agency decision dated 30 October 2020 to reflect the care for [Child 1] as 100% to [Ms A] and 0% to Mr Sherman from 25 September 2020.
Mr Sherman applied to the Tribunal for review of the objection decision of 27 February 2021 on 25 February 2022.
The Tribunal heard the matter on 28 June 2022. Mr Sherman attended the hearing via conference telephone and gave affirmed evidence. [Ms A] was removed as a party to the appeal and did not attend the hearing. The Tribunal had before it documentation provided by the Agency (Exhibit 1) and documentation provided by Mr Sherman at the direction of the Tribunal at the hearing (Exhibit A).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same; what happened up until the date of notification and what was likely to happen thereafter?
The issues which arise in this case appear from the Reasons for decision set out below.

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence given by Mr Sherman at the hearing and the documentation contained in Exhibits 1 and A before the Tribunal.
[Ms A] notified the Agency of a change in care for [Child 1] on 28 September 2020. Prior to her notification, the care percentages being assessed by the Agency were 78% to [Ms A] and 22% to Mr Sherman.
An administrative assessment of child support payable by Mr Sherman had been in place since 25 March 2013.
At the hearing, Mr Sherman gave evidence that the care percentages being assessed by the Agency prior to 25 September 2020 were based on interim court orders the parents had been contemplating in 2015, but never perfected, but which generally reflected his pattern of between two and three nights of care per fortnight (after school on Friday to either Sunday evening of Monday morning), half the mid-term school holidays and two weeks of the Christmas holidays. Mr Sherman provided a copy of these proposed orders to the Agency as part of his evidence to the Agency in the objection process on 20 October 2020 (see pages 53 to 55 of Exhibit A).
Mr Sherman acknowledged that this pattern was not being strictly followed, and there had been periods when his care had increased due to the COVID-19 pandemic restrictions current during the early part of 2020.
[Ms A’s] notification to the Agency on 28 September 2020 of a change in care for [Child 1] she perceived had taken place on 25 September 2020 as a consequence of a differences between the parents regarding Mr Sherman’s care arrangements is recorded at page 21 of the Agency’s papers, Exhibit 1, in which [Ms A] asserts that Mr Sherman “no longer sees the point in having visitation with his son ([Child 1])”.
Mr Sherman’s response on 28 September 2020 to [Ms A’s] notification is recorded at page 22 of Exhibit 1 in which he makes reference to court orders made in 2015 and the care of [Child 1] he had been having in accordance with those orders up until 24 September 2020 and agrees to provide a copy of those orders to the Agency.
[Ms A’s] response to the Agency on 29 September 2020 to Mr Sherman’s comments regarding the court orders of 2015 is reflected at pages 36 of Exhibit 1 in which she acknowledged the parents had signed interim court orders, but the orders had not been ‘stamped’, suggestive of the contemplated orders not being formally perfected, which seems to have been the case.
The Agency formally requests Mr Sherman to provide a copy of the above-mentioned court orders in discussions with him recorded in the Agency file note at page 37 of Exhibit 1, with which he complied on 20 October 2020, as noted above, providing also copies of text messages passing between the parents at the time as background context and evidence of the contact and care he was having or likely to have in October 2020 with [Child 1] (see Exhibit 1, pages 59 and 60).
At the hearing, Mr Sherman referred the Tribunal to the Agency’s request at page 91 of the Agency papers, Exhibit 1, in which the Agency officer, [named], is recorded as informing Mr Sherman that the documents he submitted to the Agency on 20 October 2020, referred to above, were not clear and needed to be properly attached, the Agency officer also commented that the documents, (presumably, the extract of the interim court orders Mr Sherman provided), were incomplete and not ‘stamped’, a reference to the court orders not bearing the Court’s seal, and that the text messages he provided were undated. The officer concludes by requesting Mr Sherman to send the Agency a properly signed or ‘stamped’ copy of the court orders, which Mr Sherman undertook to do by week’s end.
Mr Sherman gave evidence at the hearing that he did not re-send copies of the documents he had earlier sent to the Agency on 20 October 2020 because he said he had a further telephone conversation with an Agency officer whose name he could not recall, and was advised that the documents he had submitted on 20 October 2020 had been reviewed and deemed legible and accepted as evidence, but was unable to provide any documentary evidence to support his assertion regarding this conversation and there was no record in the Agency’s file papers before the Tribunal of his having had such a conversation.
However, in a later telephone conversation he had with an Agency officer, Steve, on 9 March 2021, recorded in the Agency’s papers at page 110 of Exhibit 1, regarding his objection to the Agency’s objection decision of 27 February 2021, the Agency officer is recorded as informing Mr Sherman that, among other issues relating to that objection decision, the officer had assessed the evidence Mr Sherman had provided to the Agency on 20 October 2020, and was able to read all the documents provided.
There was evidence [Ms A] was also invited by the Agency to comment on the additional material Mr Sherman had submitted on 20 October 2020 at page 82 of Exhibit 1 in the Agency’s file note dated 30 October 2020. In the record of that telephone conversation with [Ms A], the Agency officer, [named], records [Ms A] confirming the level of care Mr Sherman was having in accordance with the interim court orders referred to above since May 2020 of two nights per fortnight, and that he had care on Friday and Saturday nights, 9 and 10 October 2020.
The Agency’s file records the Agency making its decision on 30 October 2020 to determine [Ms A] as having 100% care of [Child 1] and Mr Sherman’s care at 0% from 25 September 2020 and notifying the parents of its decision by letters dated 30 October 2020.
On 2 and 3 November 2020, Mr Sherman contacted the Agency by telephone to object to the Agency’s decision of 30 October 2020 (see pages 82 to 84 of Exhibit 1). The Agency’s file notes of that date record him providing information as to the care pattern he was actually having with respect to [Child 1] during September, October and November 2020, a pattern reflective of at least two to three nights of care per fortnight for the months of September, October and November 2020, suggestive that this was likely to be his care pattern into the future. This pattern is reflected in the Agency’s correspondence with the parents dated 3 November 2020 (see pages 85 to 88 of Exhibit 1) and reinforced in the further information he provided to the Agency as part of the objection process, recorded in the Agency’s file note of 2 December 2020 at page 89 of Exhibit 1 in which he states he had been having care of [Child 1] on Friday and Saturday nights every fortnight since the change in care, presumably, on 25 September 2020.
A further Agency file note dated 7 December 2020 at page 90 of Exhibit 1 records him informing the Agency that he has had overnight care of [Child 1] on Saturday, 5 December 2020.
Following a further follow-up call to the Agency on 5 February 2021, in which he complained about the delay in the Agency determining his objection, the Agency notified him of its decision to disallow his objection on 27 February 2021, noting in its Reasons for decision that he had not provided any evidence during the objection process (see pages 12 and 108 of Exhibit 1).
The Agency file note of 9 March 2021 records Mr Sherman contacting the Agency by telephone on that date to register his dissatisfaction with the objection decision of 27 February 2021, in particular, to the objections officer’s finding that Mr Sherman had not provided any further evidence in the course of the objection process (see page110 of Exhibit 1).
The Agency officer with whom he spoke on this occasion, Steve, (referred to earlier in these Reasons above) acknowledges some of the inconsistencies in the objections officer’s decision, and, as noted earlier, acknowledges the legibility of the documentation Mr Sherman submitted to the Agency on 20 October 2020. He also advises Mr Sherman to seek review of the objection decision by the Tribunal, a course which it appears Mr Sherman chose not to adopt within the statutory period of 28 days from receipt of the Agency’s notification of the objection decision, until 25 February 2022 when he applied to the Tribunal for review of that decision.
However, the Agency papers reveal the parents were involved in a further change in care determination, culminating in a new care determination being made with effect from 21 August 2021, revoking the old care of 100% to [Ms A] and 0% to Mr Sherman from 20 August 2021, and determining the new care percentages of 50% shared equal care to each parent.
The issue before the Tribunal is therefore the correct determination of the pattern or likely pattern of care the evidence suggests Mr Sherman was having for [Child 1] from 25 September 2020 to 20 August 2021 as the Agency determined the new care percentages on 2 November 2021 of 50% care of [Child 1] each from 21 August 2021 (see pages 135 to 136 of Exhibit 1).
The Tribunal finds the evidence, on balance is that from 25 September 2020 to 20 August 2021, a period of 330 nights, the pattern of care Mr Sherman was having for [Child 1] was likely to be at least two nights of care per fortnight, equating to a care percentage of approximately 14% care (330 nights / 14 = 23,57 X 2 = 47.14 nights care per fortnight / 330 X 100 = 14.28% - rounded down to 14% pursuant to section 54D of the Act for parents with reduced care).
As the Tribunal has determined that the care of the child in this case that was actually taking place does not correspond with the responsible person’s existing percentage of care for the child (in this case, Mr Sherman’s existing care percentage), and that another care percentage should be determined under section 50 of the Act for the responsible person which is not the same as the person’s existing percentage of care for the child, and sections 54F, 54FA and 54G of the Act do not apply, the Tribunal may, pursuant to section 54H of the Act revoke the existing care percentages. The Tribunal finds that the change in care date was 25 September 2020, notified to the Agency on 28 September 2020. As the notification was within 28 days of the change of care day the existing care percentages of 78% to [Ms A] and 22% to Mr Sherman are revoked on 24 September 2020, the day before the change of care day.
The Tribunal’s finding is based on the evidence as to the pattern of care actually taking place from 25 September 2020 to 20 August 2021. The Tribunal was not satisfied there was sufficient evidence upon which it could make a finding that there was an identifiable care agreement between the parents based on the draft court orders referred to above sufficient to make an interim care determination. However, there was evidence that the mother agreed that Mr Sherman was having two nights of care from 25 September 2020 and further care on Friday and Saturday nights in October 2020. The Tribunal is satisfied that actual care should be applied.
The Tribunal is also satisfied that the objections officer was in error in finding that Mr Sherman had not submitted his evidence regarding the level of care he was having from 25 September 2020 onward, and that there was sufficient evidence upon which the objections officer could have made a care determination that Mr Sherman was likely to have that pattern of care into the future.
Mr Sherman applied to the Tribunal for review of the objection decision of 27 February 2021 on 25 February 2022, more than 28 days after he was notified of the objection decision by letter dated 27 February 2021.
Subsection 95N(1) of the Child Support (Registration and Collection) Act 1988 (the Registration Act) provides, relevantly, that if the Tribunal, on AAT first review, varies or substitutes a decision on an objection to a care percentage decision (paragraph 95N(1)(a)), and the application for AAT first review was made more than 28 days after notice of the decision was given (paragraph 95(1)(b), then, despite subsection 43(6) of the AAT Act, the decision as varied or substituted by the Tribunal has or is taken to have had effect on and from the day the application for AAT first review was made.
Subsection 95N(2) provides that if the Tribunal is satisfied that there were special circumstances that prevented the application for AAT first review being made within the period referred to in paragraph (1)(b) referred to above, the Tribunal may determine that subsection (1) applies as if the reference to 28 days in that paragraph were a reference to such longer period as the Tribunal determines to be appropriate.
The Tribunal is satisfied that notwithstanding Mr Sherman was aware the objection decision was flawed in that he had provided relevant evidence in the objection process within time, upon which the objection officer could have acted in determining a different outcome, the time taken by Mr Sherman in resolving the confusion as to the acceptability of his evidence and the timely manner in which it had been provided to the objections officer constitutes special circumstances that prevented him from lodging his application for AAT first review within the statutory period of 28 days from notice of the objection decision.
The Tribunal therefore determines pursuant to subsection 95N(2) of the Registration Act that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period, such that Mr Sherman’s application for review was made within that period, and extends that period to the date of his application on 25 February 2022.
The Tribunal has determined pursuant to section 95N of the Registration Act that Mr Sherman’s application to the Tribunal for review of the objection decision of 27 February 2021 was made within the statutory time frame.
Consistent with the Reasons set out above, the Tribunal decides that care percentages of 14% to Mr Sherman and 86% to [Ms A] should be recorded from 25 September 2020.
The Tribunal further notes that the Agency determined new care percentages on 2 November 2021 of 50% care of [Child 1] to each parent from 21 August 2021 however this is subject to separate review rights and is currently not before the Tribunal.

DECISION

[2022] AATA 4012

5 September 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Appeal

Remedies

Statutory Construction