SHYH and Child Support Registrar (Child support second review)
[2019] AATA 5454
•17 December 2019
SHYH and Child Support Registrar (Child support second review) [2019] AATA 5454 (17 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0963
Re:SHYH
APPLICANT
AndChild Support Registrar
RESPONDENT
AndYYQH
OTHER PARTY
DECISION
Tribunal:Member W Frost
Date:17 December 2019
Place:Canberra
Pursuant to subsection 43(1)(b) of the Administrative Appeals Tribunal Act 1975, the Tribunal varies the decision under review so that the date of effect of the care percentage decision is 14 May 2018, being the date the Applicant applied to the Social Services and Child Support Division of the Tribunal for review of the Respondent’s Objection Decision. The decision under review is otherwise affirmed.
............................................................
Member W Frost
Catchwords
CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – date of effect of decision of Social Services and Child Support Division - application to Social Services and Child Support Division lodged out of time – whether there are special circumstances for the late filing of an application to the Social Services and Child Support Division – where there are no special circumstances – where there was an error as to the date an application was received – decision under review varied with respect to date of effect – decision under review otherwise affirmed
Legislation
Administrative Appeals Tribunal Act 1975 ss 29, 43
Child Support (Assessment) Act 1989 ss 35, 49, 50, 54A, 54B
Child Support (Registration and Collection) Act 1988 ss 16, 90 95N, 96A
Cases
Afghani and Secretary, Department of Social Services [2017] AATA 410
Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Beadle and Director-General of Social Security (1984) 6 ALD 1
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Drainchnikov v Centrelink [2003] FCAFC 133
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Robson and Secretary, Department of Social Services [2016] AATA 1012
Secretary, Department of Social Services and Barrett [2017] AATA 1588
Secretary, Department of Social Services and Hollis [2015] AATA 941
Shanhun and Secretary, Department of Social Services [2016] AATA 675
Singleton and Secretary, Department of Social Services [2019] AATA 766
Secondary Materials
Child Support Guide version 4.44
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
Member W Frost
17 December 2019
INTRODUCTION
The Applicant, ‘SHYH’ (the Father), and the Other Party, ‘YYQH’ (the Mother), are the divorced parents of their now nineteen year old daughter, born in December 2000 (the Child). In February 2015, the Respondent, the Child Support Registrar (Registrar), determined that the Mother had 51% care of the Child and the Father had 49% care of the Child. The determination of the percentage of care is one of the requisite steps in assessing the rate of child support payable under the Child Support (Assessment) Act 1989 (Assessment Act). The Father’s payment to the Mother of child support for the Child ceased on 8 December 2018, when she turned eighteen years of age.
This decision concerns the appropriate percentage of care for the Child from September 2017, when the Registrar was notified that the Father had 95% care and the Mother had 5% care of the Child. The Mother objected to this claimed change in the percentage of care for the Child and the Registrar determined that it remained unchanged. The Father objected to that determination, but the Registrar affirmed its original decision maintaining the existing percentage of care for the Child.
The Father applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for review of the Registrar’s decision. The AAT1 varied the Registrar’s decision and found that the Father had 70% care of the Child and the Mother had 30% care of the Child from the date the Registrar was notified on 18 September 2017. However, because the Father had not made this application within twenty eight days of receiving the Registrar’s Objection Decision, pursuant to the Child Support (Registration and Collection) Act 1988 (Registration Act), the ‘date of effect’ of the decision (and any change to the Father’s child support payments) was the date the Father had made his application to the AAT1, at that stage understood to be 23 July 2018. The AAT1 did not find there were any special circumstances that prevented the Father from making an application within twenty eight days, which would otherwise have made the date of effect the day the Registrar was notified in September 2017, and likely reduced the Father’s child support payments from that time, not from July 2018, until the Child turned eighteen in December 2018.
The Father applied for review by the General Division of the Tribunal and, at that stage, maintained that his percentage of care for the Child during the relevant period was 95% and that the date of effect should be September 2017 due to special circumstances. However, in advance of the hearing, the Father proposed to accept that his percentage of care was 70% and the Mother’s was 30%, but the Father maintained the date of effect of this change should be September 2017. The Mother disputed the Father’s claimed care percentage for the Child and said that it should remain effectively equal as it had been since 2015.
ISSUE
The issue for the Tribunal is to determine the appropriate percentage of care that the Father and the Mother had of the Child from 18 September 2017, and the date of effect of any change in the care percentage.
BACKGROUND
The relevant assessment of child support for the Child took effect on 27 February 2015 (Child Support Assessment), based on the Mother having 51% care of the Child and the Father having 49% care of the Child (Exhibit 1, T2, page 5; T6, pages 22 and 25; T10, pages 32, 35 and 38). As a result of this assessment, and the other relevant factors considered to determine the applicable rate of child support, the Father was required to pay the Mother child support payments for the Child. For example, between 1 December 2016 and 30 September 2017, the annual amount of child support payable by the Father to the Mother was $5,529 (Exhibit 1, T10, pages 34-39).
On 18 September 2017, the Registrar was notified that there had been a change in the percentage of care of the Child. It was claimed that the Father had 95% care of the Child and that the Mother had 5% care of the Child. The identity of the person who informed the Registrar is disputed by the Father and the Mother and they both denied either providing or facilitating this notification to the Registrar. While the notification to the Registrar was the catalyst to review the care percentage in relation to the Child, the identity of the person that notified the Registrar is not material to the Tribunal’s decision.
On 24 November 2017, the Registrar rejected a change in the care percentage, meaning the rate of child support payments required to be made by the Father remained unchanged (Exhibit 1, T11, pages 40-41).
On 4 December 2017, the Father lodged an objection to the Registrar’s decision (Exhibit 1, T13, pages 44-45).
On 7 March 2018, the Registrar disallowed the Father’s objection (Objection Decision). The Registrar said that the evidence provided by the Father was insufficient for it to determine that his level of care was 95%, while the evidence of the Mother ‘does not confirm an actual pattern of care for [the Child] with either parent’. The Registrar affirmed its earlier decision because ‘we have not been able to make a clear determination about the pattern of care’ (Exhibit 1, T18, pages 59-60). The rate of child support payments therefore remained unchanged. The Father indicated that he received the Objection Decision by letter on 17 March 2018 (Exhibit 1, T18, page 56; T19, page 62), which stated that:
If you think this decision is wrong, you can ask the Administrative Appeals Tribunal (AAT) to review it. You must do this within 28 days from the date you receive this letter.
On 9 April 2018, and within twenty eight days of receiving notice of the Registrar’s Objection Decision, the Father attempted to apply by email to the AAT1 for review of that decision (Exhibit A3). The Father’s Application for Review Form was completed by hand and dated 9 April 2018 (Exhibit 1, T19, pages 61-64); it attached two one-page statements of the same date from the Father and his now wife (the Father’s Wife) (Exhibit 1, T20, page 65; T21, page 66). However, an incorrect email address was used for the AAT1 and the Father’s application was not received within the twenty eight day timeframe.
On 14 May 2018, the Father correctly emailed the AAT1 a copy of his Application for Review Form dated 9 April 2018 (Exhibit A3). The twenty eight days had expired on 16 April 2018. The Father relevantly stated in his email to the AAT1 that ‘I do apologise for the incorrect email as I was wondering what the outcome of it and realise that I had send it to the wrong email address’ [sic]. On the same day, the AAT1 emailed the Father confirming receipt of the Father’s application for review of the Objection Decision (Exhibit A4).
On 23 July 2018, the Father again emailed the AAT1 his Application for Review Form dated 9 April 2018, because he had not received any further correspondence in relation to his requested review (Exhibit A3).
On 17 October 2018, the AAT1 varied the Registrar’s Objection Decision and decided that the Father had 70% care of the Child and the Mother had 30% care of the Child from 18 September 2017 (Exhibit 1, T2, pages 4-8). However, pursuant to section 95N of the Registration Act, because the AAT1 found that there were no special circumstances preventing the Father from applying within twenty eight days of receiving the Objection Decision, the date of effect of the AAT1 decision was the date of the Father’s application to the AAT1, found at that stage to be 23 July 2018, and not what ordinarily would have been the date the Registrar was notified of the claimed change of care for the Child, some ten months earlier on 18 September 2017.
On 8 December 2018, the Child Support Assessment in relation to the Child concluded because she reached eighteen years of age and no further child support was required to be paid.
On 20 February 2019, and following an extension of time granted to the Father by the Tribunal pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Father applied to the General Division of the Tribunal for review of the AAT1 decision (Exhibit 1, T1, pages 1-3; T22, page 67). The Father maintained that the percentage of care for the Child was 95% and 5% to him and the Mother, respectively.
On 11 November 2019, a hearing was held by the Tribunal. The Father and the Mother represented themselves and a legal representative appeared on behalf of the Registrar.
The Tribunal has considered all of the documents in the bundle of documents lodged on 3 May 2019, pursuant to section 37 of the AAT Act (being Exhibit 1). The submissions made by the parties have also been considered, including the following additional documents provided to the Tribunal:
(a)The Father’s Reply dated 14 October 2019 to the Registrar’s submissions (Exhibit A1);
(b)The Father’s submissions dated 17 June 2019 (Exhibit A2);
(c)The Father’s email correspondence with the AAT1 between 9 April and 23 July 2018 (Exhibit A3);
(d)Email from the AAT1 to the Father dated 14 May 2018 (Exhibit A4);
(e)The Mother’s submissions dated 22 October 2019 (Exhibit OP1);
(f)The Registrar’s Outline of Submissions dated 25 September 2019 with a bundle of documents marked ‘Annex A’ containing material provided by the Father and the Mother for the AAT1 review (Exhibit R1); and
(g)The Registrar’s Further Outline of Submissions dated 28 November 2019 (Exhibit R2).
LEGISLATION & POLICY
Determining the percentage of care
Section 35 of the Assessment Act sets out the applicable formula to determine the rate of child support payable for the Child. Step 4 in the formula is to: ‘Work out each parent’s percentage of care for the child’. The determination of the percentage of care for a child can be made under sections 49 or 50 of the Assessment Act, depending on whether or not there has been a ‘pattern of care’ for the child provided by a ‘responsible person’, being a parent or non-parent carer (subsection 5(1)).
Subsection 50(2) of the Assessment Act relevantly provides that the Registrar ‘must determine the responsible person’s percentage of care for the child during the care period’ if, in accordance with subsection 50(1)(a):
(i)an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii)a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child 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.
The Child Support Guide (Guide) at paragraph 2.2.1 states that:
the Registrar will require information about the pattern of care that each parent has of the children. Minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination.
Subsection 50(3) of the Assessment Act provides that any percentage determined under subsection 50(2) must correspond with the ‘actual care’ of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the care period.
Subsection 54A(1) of the Assessment Act provides that the ‘actual care’ during a care period ‘may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period’. The Guide at paragraph 2.2.1 advises that, where there is doubt about the extent of care a person is providing for a child, the Registrar will consider the following:
· To what extent the person has control of the child, including having overall responsibility for the child and making:
omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
oarrangements for others to meet the needs of the child (delegated care).
· To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
· To what extent the person pays for the costs of meeting the needs of the child.
· To what extent the person otherwise provides financial support for the child.
· To what extent the child provides for his or her own needs or has those needs met from another source.
· To what extent the child is financially independent or financially supported from another source.
While the Assessment Act does not specify any fixed duration, the ‘care period’ is regarded as the period during which a responsible person for the child has had, or is likely to have, a pattern of care or no pattern of care for the child. In this regard, the Guide at paragraph 2.2.1 states that: ‘A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised’.
Subsection 54B(1A) of the Assessment Act relevantly provides that the percentage of care ‘applies to each day in a child support period on and from the application day until the determination is revoked’. The Tribunal is satisfied that the applicable care period is the twelve month period from 18 September 2017, being the date when the Registrar was notified of a change of care percentage for the Child and an application for such a change was taken to have been made pursuant to subsection 54B(2) of the Assessment Act.
Time limit on application to AAT1 for review of a care percentage decision
Subsection 29(1)(d) of the AAT Act provides that an application to the Tribunal for review of a decision must be made ‘within the prescribed time’ which, for the purposes of that subsection and based on the facts in this proceeding, is twenty eight days after the day on which the decision is given to the applicant. However, subsection 90(1) of the Registration Act provides that subsection 29(1)(d) of the AAT Act ‘does not apply in relation to an application for AAT first review of a care percentage decision’. The effect of subsection 90(1) is that there is no legislated time limit for a person to apply to the AAT1 for review of a care percentage decision. Despite this exemption to the usual timeframe in which to apply to the Tribunal, section 95N of the Registration Act states that any such application made to the Tribunal more than twenty eight days after receiving the Registrar’s decision impacts the ‘date of effect’ of any variation or substitution by the Tribunal of the Registrar’s decision. That is, if an application to the AAT1 is made after twenty eight days, and the AAT1 decides to vary or substitute the Registrar’s decision, it is ‘taken to have had effect on and from the day the application for AAT first review was made’ and not any earlier time, such as the day the Registrar was notified of the change in the percentage of care arrangements as would occur with an application made within the twenty eight days. Plainly, this difference in the implementation of a variation in the care percentage can have a significant impact on the quantum of child support payable by a parent.
Date of effect of decision and special circumstances
Under subsection 95N(2) of the Registration Act, if the Tribunal is ‘satisfied that there are special circumstances that prevented the application for AAT first review being made’ within twenty eight days of receiving the decision sought to be reviewed, the Tribunal may determine that the reference to twenty eight days in subsection 95N(1) ‘were a reference to such longer period as the AAT determines to be appropriate’. Subsection 95N(2) of the Registration Act sets a high threshold for an applicant, because the Tribunal must be satisfied both that:
(a)circumstances existed that were special; and
(b)those special circumstances prevented the applicant from making a claim within time.[1]
[1] Secretary, Department of Social Services and Hollis [2015] AATA 941 at [31]-[32].
Tribunal’s jurisdiction
Pursuant to subsections 96A(b) and (c) of the Registration Act, an application may be made to the General Division of the Tribunal for review of a decision by the AAT1 regarding care percentage and a decision ‘not to make a determination’ under subsection 95N(2) that special circumstances applied. The Tribunal therefore has jurisdiction in relation to the Father’s application for review of the AAT1 decision regarding the percentage of care for the Child and his claimed special circumstances.
CONTENTIONS
The Father
The Father contended at AAT1 that he had 95% care of the Child from 17 December 2016, and the date of effect should be 18 September 2017, when the Registrar was informed of this change, not 23 July 2018 when the Father was found to have lodged his application for review with the AAT1.
However, in advance of the hearing before the General Division of the Tribunal, the Father said in his Reply to the Registrar’s submissions (Exhibit A1) that:
the percentage of child care from 18 September 2017 to now should be 70% SHYN [sic] (applicant) and 30% YYQW (Other Party).
…
Although I believe that the percentage of child care is higher I have agreed that to finalise the issue it should be 70% SHYN [sic] (applicant) and 30% YYQW (Other Party).
That is, the Father submitted that the Tribunal should affirm the AAT1 decision that he had 70% care of the Child and the Mother had 30% care of the Child, not 95% and 5%, respectively, as the Father had previously submitted to the AAT1 and to the Registrar. However, the Father maintained his objection to the date of effect of the AAT1’s varied decision due to claimed special circumstances and said the date of effect should be 18 September 2017, when the Registrar was notified of the purported change in the percentage of care for the Child.
The Father referred to documents written by the Mother to Child Support Australia (CSA) stating that his percentage of care was 70% or more at various times during the applicable period. These included documents or records of conversations where the Mother had told CSA on separate occasions that the Father had 70% or 75% care of the Child during the relevant period (Exhibit 1, T15, page 47; T16B, page 53; and T23, page 72).
The Father also referred to his diary entries for particular days and a summary of those entries to demonstrate the level of care both he and the Mother had provided to the Child over the applicable twelve month period from 18 September 2017 (Exhibit R1, pages 7-35). In this regard, a one-page summary document titled ‘Recorded Diary Dates’ (Exhibit R1, page 7), compiled by the Father and covering the applicable period listed fourteen dates on which the Child resided with the Mother, plus seven dates on which the Child was with her maternal grandparents. The Father contended that, apart from these twenty one days when the Child was in the care of the Mother or the Child’s maternal grandparents, the Child was in his care during the applicable twelve month period from 18 September 2017. The Father’s diary extracts in evidence before the Tribunal were only of those twenty one dates indicating when he said the Child was not in his care.
The Father’s Wife gave evidence to the Tribunal of the care provided by the Father to the Child and corroborated the Father’s evidence that the Child spent the overwhelming majority of nights over the applicable period at the Father’s place of residence.
The Father confirmed that he received the letter from the Registrar containing the Objection Decision on 17 March 2018 (Exhibit 1, T18, page 56). In relation to the special circumstances that the Father said prevented him making the application to the AAT1 within twenty eight days of receiving this decision, the Father said this was due to the Father’s Wife’s complicated pregnancy and child birth on 20 April 2018, four days after the twenty eight day period. The Father said he was also busy maintaining two stores for his business and ‘juggling’ the care arrangements regarding the Father’s Wife’s children, in addition to those of the Child the subject of the Child Support Assessment.
The Father also referred at the hearing to emails demonstrating that he had applied to the AAT1 within the twenty eight day time period; that is, earlier than 23 July 2018, which was the date the AAT1 found the Father had applied for review of the Objection Decision. While the AAT1 decision records that it was informed that the Father ‘had initially emailed his application for review to the wrong email address’ (Exhibit 1, T2, page 8), there is no indication that the specific emails were in evidence before the AAT1 when it considered the question of when the Father had applied for review and any attendant special circumstances. The emails produced at hearing by the Father demonstrated that he had, on 9 April 2018 and within the twenty eight day timeframe, attempted to apply to the AAT1, but had emailed his application to an incorrect address for the AAT1 (Exhibit A3). The Father subsequently correctly applied for review on 14 May 2018, and also provided his application to the AAT1 on 23 July 2018, following a telephone conversation with CSA on 14 July 2018, where he informed it that ‘his case is now sitting with AAT’ (Exhibit 1, T23, page 82). CSA advised the Father that ‘we don’t have any notifications from AAT’. As a result, the Father re-sent his application for review to the AAT1, despite it already having received it on 14 May 2018 (Exhibit A3).
The Mother
In the Mother’s written submission to the Tribunal, she stated that ‘I am uncertain that percentage of care arrangements should be changed…if anything it should be reduced further for [the Father] as [the Child] rarely spent any time with him as she was at friends’ homes for a large part of the time she was with him’ (Exhibit OP1). The Mother confirmed at hearing that her position was that her percentage of care of the Child was 50% during the relevant period.
Following notification in September 2017 of a claimed change in care percentage, a file note of a conversation with CSA on 16 October 2017 records the Mother advising ‘she still has to a degree 50/50 care’, and in future it was ‘unlikely to be 95% and more likely to be 70% to PP [paying parent] and 30% to RP [recipient parent]’ (Exhibit 1, T23, page 72). This assessment by the Mother was said to have been made due primarily to her concern for the Child’s wellbeing and so as to assist her complete her schooling years and transition to adulthood.
An undated statement from the Mother provided to the AAT1 also said that the Child ‘only changed from a formal week on/week off 50/50 arrangement in late 2017 when her Father bought a small car for her to use’ (Exhibit R1, page 43). In this regard, the Mother told the Tribunal that the care arrangements ‘fluctuated both ways’ according to what the Child wished at any particular time.
A letter dated January 2018 from the Child’s maternal grandparents to CSA (Exhibit 1, T16A, page 51) stated that the Child:
has retained a balance of stays with both parents through the past years, excepted only in latter 2017, commencing around late October. Since that time she has stayed a little more with her father.
A letter by the Mother marked as having been received by CSA on 9 January 2018 (Exhibit 1, T15, page 47), that is, during the applicable 12 month period, states that:
the overall circumstances have not changed…This coming school year from February, [the Child] has now forecasted that she will be about 75% with her father and 25% with me. She has also said that this is subject to change. This may change and revert back to more time she spends with us and this is ok!
…
Increasingly [the Child] makes her living decisions on the day and as per her wishes for that day. To apportion a set % of time is problematic and is likely to not be reflective of what the living arrangements may actually turn out to be for a specific period of time. for example, as I write this the time apportionment for the last fortnight has been roughly 50/50. This has been as [the Child] wished it to be.
[The Child] spent time away with us down the coast the week before Christmas and will spend time with us in January and an additional week with my family in Adelaide in January.
The Mother said at the hearing that in January 2018 the Child had spent a considerable amount of time with her that did not reflect the Father having 75% care of the Child. Additionally, in February 2018, the Child was said to be in the Mother’s care for ‘the entire month’, except for three days, according to her calendar for that year (Exhibit R1, page 48).
In this regard, the Mother sent an email to CSA on 13 February 2018 stating that ‘it appears she [the Child] will be with me greater than 50% of the time and I am keeping a diary’ (Exhibit 1, T17, page 55).
The Mother referred to a further letter she had sent to CSA in January 2018 (Exhibit 1, T16B, pages 52- 54), that is, during the applicable 12 month period, which stated that:
Since October/November 2017 [the Child] may have spent more than 50% of her time away from here, however she reports that many of the weekends and nights were spent in the home of her friends and not with her father.
…
Basically [the Child’s] residency has been a fairly stable arrangement until around October 2017 when she has spent some more days with her father and friends. This may be for reasons of work and ability to stay with friends. [The Child’s] residency arrangements are presently quite flexible and according to how she wishes. [The Child] has expressed that for now she would like to spend about 75% of time with her father and I say that this has happened since 16th January 2018.
The Mother also referred at hearing to significant dates throughout 2018, such as her Birthday, Mother’s Day and Easter, which she claimed the Child was in her care.
Towards the end of the applicable twelve month period, the Mother sent an email to the AAT1 on 29 August 2018 (Exhibit R1, page 37), stating that:
I agree there has been a change in care percentage, however…I am leaving the decision with [the Child] as to how she spends the remainder of her final year in College, particularly for study purposes. She has spent more time with her Father since March this year however it is ad hoc and not predictable.
The Mother said at the hearing that her above statement from August 2018 was ‘possibly’ correct, but that the care percentage fluctuated during the applicable twelve month period and it was on average ‘pretty much’ 50%. The Mother did concede that the Father’s care percentage may have been 55% during the relevant period. However, the Mother maintained that ‘nothing changed’ in relation to caring for the Child generally, including regarding schooling, extra-curricular activities, sporting activities, tutoring, medical appointments, parent-teacher nights and holidays and keeping the Child’s room at the Mother’s place of residence. There was said to be no pattern of care because it was determined by the Child at any particular time.
In this regard, the Mother acknowledged that the Child was becoming more independent and determining where she spent her time on a day-by-day basis and in an ad hoc manner, because she had turned seventeen during the applicable twelve-month period, was in her final year of school and had a car. The Mother said she tried to ‘facilitate whatever it took for [the Child] to stay focused’. Apparently, the Child said to the Mother that she should make the care percentage 70% to the Father. The Mother said this was because of pressure the Child was under from the Father and so as to minimise his child support payments.
While the Mother acknowledged that it was difficult to identify the appropriate percentage of care because ‘good records weren’t kept at the time’, the Mother relied on a calendar she maintained for 2018 (Exhibit R1, page 48) that demonstrated the level of care she provided for the Child over the relevant almost nine month period in 2018, noting that there was no equivalent calendar for the relevant period in 2017. Although there was some difficulty with the legibility of the document, and noting that the Mother said it was not ‘comprehensive’, the Tribunal went through the calendar entries with the Mother in detail at hearing to identify the days the Mother said the Child was in her care. On the Tribunal’s reading of that document, and based on what the Mother told the Tribunal, the Mother recorded the Child as being in her care or with other family or friends, that is, not in the care of the Father, on approximately 76 days over that almost nine month period (comprising 261 days) in 2018. The Tribunal notes that this equates to approximately 29% care of the Child by the Mother in the relevant period during 2018. Adding in two days for Mother’s Day and the Mother’s Birthday, both in May 2018, which the Mother contended the Child was in her care (which was disputed by the Father), this equates to the Mother having 29.88% care of the Child for the relevant period in 2018.
The Registrar
While the Registrar provided submissions in relation to the facts and legislation applicable in the proceeding, it adopted a neutral position regarding the evidence and contentions of the Father and the Mother and made no submissions or contentions on the correct or preferable decision of the Tribunal. The Tribunal records its appreciation for the assistance it received from the Registrar and its legal representative through the Registrar’s submissions and during the course of the proceeding.
CONSIDERATION
What is the percentage of care for the Child?
Based on the evidence, the Tribunal is satisfied that by 18 September 2017, when the Registrar was notified of a change in care percentage, there had been a change in the pattern of care for the Child. This pattern was such that in the twelve month period from 18 September 2017, being the relevant ‘care period’, the Father had 70% care of the Child and the Mother had 30% care of the Child. The Tribunal therefore affirms the AAT1 decision regarding the applicable percentage of care for the Child.
While it is a difficult task to determine a pattern of care for a child that is approaching adulthood due to the associated increasing independence, the circumstances in this proceeding disclose a pattern of care for the Child over the relevant care period demonstrating that the Father had 70% care and the Mother had 30% care of the Child. The Tribunal notes that this percentage attributed to the Mother does not detract from the substantial support she provided during this important and changing time in the Child’s life. In this regard, the Tribunal notes that the Mother’s sole concern during this period was the welfare of the Child; ensuring that she was able to complete her studies and set her own path as an independent person into adulthood.
While the Tribunal does not consider the Father’s diary summary to be an accurate record of the number of nights the Child was not in the care of the Father during the relevant care period, the Tribunal is satisfied that the Child was in the Father’s care for a relatively substantial majority of this time. To this end, the Mother’s calendar for 2018 reflects what the Tribunal finds to be a more accurate account of the actual nights that the Child was in her and the Father’s respective care. As previously outlined, the Tribunal’s interpretation of the Mother’s calendar, including based on her testimony at the hearing, is that it lists the Child as being in her care for approximately 30% of the relevant period in 2018. While the Mother stated at the hearing that this was not a comprehensive record of care, and she conceded only that the Father could be said at most to have had 55% care of the Child, the Tribunal considers the Mother’s 2018 calendar to be a reasonably accurate reflection of the percentage of care between the Child’s parents that had existed since September 2017, including based on their evidence and the contemporaneous documents. In this regard, the Mother’s 2018 calendar appears to corroborate the division of care between the parents that had been conveyed by the Mother to CSA at various times during the care period. To this end, from January 2018 the Mother informed the Registrar that the Father was forecast to have ‘about 75%’ care of the Child (Exhibit 1, T15, page 47) and that the Child ‘would like to spend about 75% of time with her father’, which was said to have happened since mid-January 2018 (Exhibit 1, T16B, page 53).
Additionally, while in February 2018 the Mother informed the Registrar that the Child ‘will be with me greater than 50% of the time’ (Exhibit 1, T17, page 55), this prediction was not borne out by the calendar entries for 2018, although the Child stayed with the Mother for a significant proportion of February 2018. As previously noted, based on the Mother’s 2018 calendar entries, the Child was in her, or her family’s, care for approximately 76 days out of 261 days in the relevant period in 2018. This equates to the Mother having marginally less than 30% care of the Child during this time.
In relation to the period between the start of the relevant care period on 18 September 2017 and the end of 2017, the evidence does not readily disclose a definitive percentage of care between the Father and the Mother for the Child. The Mother did not maintain a diary or calendar for 2017 and the Father’s summary of his diary entries over the relevant period is not considered an accurate reflection of the parents’ level of care of the Child. However, again the Mother’s correspondence with CSA provides guidance as to the care arrangements in place for the Child at that time. For example, on 16 October 2017, the Mother told CSA that the Father was ‘more likely’ to have 70% care of the Child (Exhibit 1, T23, page 72). The Mother’s correspondence with the Registrar from early 2018 also confirms there was a change in care arrangements for the Child from October 2017 that resulted in the Father having a greater percentage of care. The Mother, in an undated letter to CSA received in February 2018 notes that from October 2017 the Child ‘has spent some more days with her father and friends’, and from mid-January 2018 the Child ‘expressed that for now she would like to spend about 75% of time with her Father’ (Exhibit 1, T16B, pages 52-54). In addition, a document from the Mother titled ‘Response to Additional Material’, states that the Child ‘only changed from a formal week on/week off 50/50 arrangement in late 2017’ (Exhibit R1, page 43). This change is also referred to in a letter from the Child’s maternal grandparents to the Registrar in January 2018 (Exhibit 1, T16A, page 51). Accordingly, based on the evidence before the Tribunal, including the parties’ submissions and contemporaneous correspondence with CSA, the Tribunal is satisfied that from 18 September 2017 there had been a change in the pattern of care such that the Father had 70% care of the Child and the Mother had 30% care of the Child.
As a result, the Tribunal is satisfied that the AAT1 decision regarding the percentage of care of the Child was the correct or preferable decision. The AAT1 decision rightly revoked the Registrar’s determination regarding the percentage of care for the Child under section 54F of the Assessment Act and found that for the twelve month period from 18 September 2017, the Father had a care percentage of 70% for the Child and the Mother had a care percentage of 30% for the Child.
What is the ‘date of effect’ of the change in the percentage of care?
The date of effect of the change in care percentage is 14 May 2018, being the date the Father correctly applied to the AAT1 for review of the Registrar’s Objection Decision. This necessarily varies the AAT1 decision, because it did not have evidence, which was provided by the Father to the General Division of the Tribunal, that his application to the AAT1 was made and received on 14 May 2018 (Exhibits A3 and A4). Although the AAT1 decision refers to the Father emailing his application to the wrong email address, the AAT1 only had evidence of a correct application having been made by the Father on 23 July 2018 and therefore decided that date was the time the change in the percentage of care took effect pursuant to section 95N(1)(b) of the Registration Act.
Pursuant to section 90(1) of the Registration Act, the twenty eight days under the AAT Act to make an application expressly ‘does not apply to an application for AAT first review of a care percentage decision’. As a result, there is no statutorily prescribed time limit to apply for review by the AAT1 of a child support care percentage decision. However, pursuant to section 95N of the Registration Act, if an application was made to the AAT1 ‘more than 28 days…after notice of the decision was given…then…the decision as varied or substituted by the AAT has or is taken to have had effect on and from the day the application for AAT first review was made’. In relation to the Father’s application, the AAT1 did vary the Registrar’s Objection Decision, so the date of effect was taken to be the day the Father was then understood to have applied to the AAT1, being 23 July 2018, more than three months after the end of the twenty eight day period. On the evidence presented by the Father at the hearing, he first made a valid application to the AAT1 on 14 May 2018, not 23 July 2018 as it appeared on the evidence available to the AAT1. Therefore, the date of effect of the AAT1 decision is 14 May 2018, being the date the Father first correctly applied to the AAT1 for review of the Registrar’s Objection Decision.
However, the Father also provided evidence of his attempted application to the AAT1 on 9 April 2018, which was within twenty eight days after receiving the Registrar’s Objection Decision. If the Father is found to have made an application at this time, the date of effect of the subsequent variation of the Objection Decision by the AAT1 would be the date the Registrar was notified on 18 September 2017 of a change in the percentage of care for the Child. This could have a substantial impact on the amount of child support payable by the Father, especially if the date of effect is ten months earlier than that found by the AAT1 and eight months earlier than May 2018, when the Father first made a valid application to the AAT1. This issue turns on whether there were special circumstances that prevented the Father from applying to the AAT1 in the twenty eight day period after he received the Registrar’s Objection Decision.
Were there special circumstances?
If the Tribunal finds there were special circumstances that prevented the Father from applying to the AAT1 within twenty eight days, the date of effect of the variation in the percentage of care for the Child would be the ‘application day’ described by the Assessment Act, which was 18 September 2017, when the Registrar was notified of a purported change in the care percentage for the Child.
The Tribunal is not satisfied that the Father’s error in using an incorrect email address for the AAT1 constitutes special circumstances that prevented him from applying to the AAT1. The Tribunal is also not satisfied that the Father’s personal circumstances around the twenty eight day period from mid-March 2018 constitute special circumstances that prevented him from applying to the AAT1.
The Registrar’s Objection Decision dated 7 March 2018 was sent by registered post to the Father who received it on 17 March 2018. The twenty eight days referred to in section 95N(1) of the Registration Act regarding the date of effect for any change in the percentage of care therefore ended on 16 April 2018. Accordingly, for the date of effect to be 18 September 2017, the Father was required to have made his AAT1 application by 16 April 2018. As noted above, the Father provided evidence to the Tribunal of his attempted application to the AAT1 on 9 April 2018. The email attaching the Father’s application for review to the AAT1 was sent to an incorrect email address and was not received by the AAT1 (Exhibit A3).
Pursuant to subsection 29(1)(a)(i) of the AAT Act, an application to the Tribunal for review of a decision must be made in writing. If the decision is reviewable by the Social Services and Child Support Division of the Tribunal, an applicant can also make an oral application in person, or by telephone, to the Tribunal Registry.[2] The Father did not make an application for review on 9 April 2018 in accordance with the AAT Act, because his emailed application was not received by the AAT1 on this date.
[2] Subsection 29(1)(a)(ii) of the AAT Act.
Pursuant to subsection 95N(2) of the Registration Act, an exception may be made if there were ‘special circumstances’ that ‘prevented’ the Father from applying for AAT1 review within the twenty eight day period. The AAT1 was not satisfied there were special circumstances that prevented the Father from so applying, and it therefore declined to make a determination under subsection 95N(2)(b) of the Registration Act allowing for a longer period of time for the Father to have made that application.
Due to the Father’s new evidence at hearing regarding his attempted lodgement of an application with the AAT1 within the twenty eight days, the Registrar helpfully provided further written submissions regarding whether an error in lodging an application could constitute special circumstances that prevented it being made within time (Exhibit R2). Tribunal and judicial authorities regarding ‘special circumstances’ establish that they must objectively be ‘unusual’, ‘uncommon’ or ‘out of the ordinary’.[3] Relevantly, it has been established that ignorance of legal requirements or error in lodging a document does not constitute special circumstances.[4]
[3] Beadle and Director-General of Social Security (1984) 6 ALD 1, 3 (appeal to the Federal Court of Australia dismissed: (1985) 7 ALD 670); Groth v Secretary, Department of Social Security (1995) 40 ALD 541, 545; Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at [18]; Drainchnikov v Centrelink [2003] FCAFC 133 [66]; (2003) 75 ALD 134, 148; Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33]; and Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114.
[4] For example: Robson and Secretary, Department of Social Services [2016] AATA 1012 at [34]; Secretary, Department of Social Services and Barrett [2017] AATA 1588 at [48], [50].
The second element of the test for special circumstances is that those circumstances must have ‘prevented’ the applicant from making its claim within time. The Tribunal has previously held that the word ‘prevented’ carries its ordinary, everyday meaning being ‘to “hinder, or stop”’.[5] In this regard, it is not sufficient for circumstances to make it difficult or challenging; the special circumstances ‘must have been such that they served as an insurmountable block, hindrance or impediment to the lodgement taking place within the required timeframe’.[6]
[5] Afghani and Secretary, Department of Social Services [2017] AATA 410 at [62]; and Shanhun and Secretary, Department of Social Services [2016] AATA 675 at [38].
[6] Singleton and Secretary, Department of Social Services [2019] AATA 766 at [42].
Applying these authorities, the Tribunal is not satisfied that special circumstances prevented the Father from applying to the AAT1 within the twenty eight day timeframe ending on 16 April 2018. The Father’s email of 9 April 2018 attaching his application for review to the AAT1 was sent to an incorrect email address. The Father therefore did not make his application to the AAT1 on that date, or within the twenty eight days, because it was not received by the AAT1. This error by the Father does not amount to special circumstances that prevented his application to the AAT1 within time.
Additionally, the Tribunal is not satisfied that the Father’s personal circumstances at or around the time any application was to be made to the AAT1 amount to special circumstances that prevented him from making that application. In light of the new evidence received by the Tribunal regarding the Father’s attempt to make an application in the twenty eight days, it is clear that he was able to complete and email an application for review within this timeframe. In this regard, the Father’s argument that his personal circumstances were such that he could not make his application in this time period is unsustainable. The Father was able to make an application in time, but he used an incorrect email address to attempt to lodge that application. While the Tribunal considers that the Father’s other personal circumstances at that time, especially the impending birth of his and his wife’s child, would have added to his busy life, it plainly did not prevent him from completing and taking steps to lodge his AAT1 application in the relevant twenty eight days after receiving the Objection Decision. The Tribunal accordingly finds that there were no special circumstances that prevented the Father from applying to the AAT1 by 16 April 2018. The date of effect of the AAT1’s varied decision is therefore 14 May 2018 when the Father applied to it for review of the Registrar’s Objection Decision.
CONCLUSION
The Child Support Assessment period ceased when the Child reached eighteen years of age in December 2018. However, there has been a protracted challenge regarding the percentage of care provided by each parent from September 2017, which contributes to determining the amount of child support payable to the Mother by the Father. It was evident to the Tribunal that both the Father and the Mother deeply care for and love their Child and they are to be commended for their ongoing support of her during this time. The Tribunal hopes the conclusion of this proceeding will assist in that important endeavour.
Pursuant to subsection 43(1)(b) of the AAT Act, the Tribunal varies the decision under review so that the date of effect of the care percentage decision is 14 May 2018, when the Father applied to the AAT1 for review of the Registrar’s Objection Decision. The AAT1 decision of 17 October 2018 is otherwise affirmed.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
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Associate
Dated: 17 December 2019
Date(s) of hearing: 11 November 2019 Date final submissions received: 28 November 2019 Applicant: In person Solicitors for Respondent: Laura Hinwood, Department of Human Services Other Party: By telephone
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