Simmers and Simmers (Child support)

[2023] AATA 2932

Simmers and Simmers (Child support) [2023] AATA 2932 (1 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025775

APPLICANT:  Mr Simmers

OTHER PARTIES:  Child Support Registrar

MrsSimmers

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  01 August 2023

DECISION:

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Simmers provides 34 per cent care of [Child 1], [Child 2] and [Child 3] and Mrs Simmers provides 66 per cent care from 12 August 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 9 March 2023.

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 omitted 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 Mr  Simmers and Mrs  Simmers in respect of their children [Child 1] (born December 2012), [Child 2] (born March 2014) and [Child 3] (born May 2015).  There has been a child support assessment in place since 22 January 2019.

2. From 20 January 2019 the child support assessment reflected Mr Simmers as having 0 per cent care and Mrs Simmers as having 100 per cent care of [Child 1], [Child 2] and [Child 3].

3. On 15 August 2022 Mr Simmers notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that he provides 40 per cent care and Mrs Simmers provides 60 per cent care of [Child 1], [Child 2] and [Child 3] from 12 August 2022.

4. On 27 August 2022 Child Support made the decision to reflect that Mr Simmers provides 40 per cent care and Mrs Simmers provides 60 per cent care of [Child 1], [Child 2] and [Child 3] from 12 August 2022.

5. On 7 November 2022 Mrs Simmers objected to this decision and on 16 January 2023 Child Support allowed the objection and made the decision to reflect that Mr Simmers provides 33 per cent care and Mrs Simmers provides 67 per cent care of [Child 1], [Child 2] and [Child 3] from 12 August 2022 but with effect from 7 November 2022 (the objection decision).

6. On 9 March 2023 Mr Simmers 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 1 August 2023.  Mr Simmers and Mrs Simmers gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (168 pages).

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. Child Support 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, Child Support 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, Child Support 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. Child Support 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], [Child 2] and [Child 3] 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. Mr Simmers told the Tribunal there were court orders in place relating to the care of [Child 1], [Child 2] and [Child 3] which the parents had been following as closely as possible.  Mr Simmers said under the court orders he was to have care of the children for four nights every fortnight plus half the school holidays and this care commenced from 12 August 2022.

2. Mr Simmers said the children attended [School 1] in Queensland and in accordance with the court orders his care should be more than that calculated by Child Support.  Mr Simmers explained his care should be based upon the term dates for the school.

3. The Tribunal notes in evidence from Child Support a copy of court orders handed down in the Federal Circuit and Family Court of Australia on 16 November 2021.  In relation to care the orders state the children are to spend time with Mr Simmers on a progressive basis and ultimately each alternate week during school term from after school on a Friday to before school on a Tuesday plus one half of the school holidays.  Under clause 11 of the orders Mr Simmers is to have care during the first half of the school holidays in even numbered years and during the second half of the school holidays in odd numbered years.  School holidays are deemed to commence at the close of school on the day the school term finishes.  If there is an uneven number of nights during his holiday care then, in accordance with the court orders, Mr Simmers “shall retain the additional night”.

4. Mrs Simmers told the Tribunal she agreed the parents were following the care set out under the court orders and Mr Simmers began having care of four nights a fortnight plus half the school holidays from 12 August 2022.  Mrs Simmers said care of [Child 1], [Child 2] and [Child 3] should be calculated in accordance with the court orders.

5. 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.

6. It is not in dispute and the Tribunal finds that care of [Child 1], [Child 2] and [Child 3] changed on 12 August 2022.  The parents agree that care of the children is in keeping with court orders with Mr Simmers providing care of four nights per fortnight and half the school holidays.

7. The term dates for [School 1], where the children attend, are published on the school holidays and term dates page of the Queensland Department of Education.[1] The calendar shows the following dates in 2022 (even year) and 2023 (odd year):

   [1] [deleted]

   ·     Term 3 2022 – Monday, 11 July 2022 to Friday, 16 September 2022

   ·     School Holidays – Saturday, 17 September 2022 to Monday, 3 October 2022

   ·     Term 4 2022 – Tuesday, 4 October 2022 to Friday, 9 December 2022

   ·     School Holidays – Saturday, 10 December 2022 to Sunday, 22 January 2023

   ·     Term 1 2023 – Monday, 23 January 2023 to Friday, 31 March 2023

   ·     School Holidays – Saturday, 1 April 2023 to Sunday, 16 April 2023

   ·     Term 2 2023 – Monday, 17 April 2023 to Friday, 23 June 2023

   ·     School Holidays – Saturday, 24 June 2023 to Sunday 9 July 2023

   ·     Term 3 2023 – Monday, 10 July 2023 to Friday, 15 September 2023

8. In keeping with these dates there are 268 nights in total during school terms and 97 nights in total during school holidays.  Mr Simmers is to have care of four nights a fortnight during school term and half the school holidays, however, he retains an additional night of holiday care in the event there is an uneven night.  This is the case during the Christmas holiday period commencing in 2022 as well as the April and June holiday periods in 2023.

9. The Tribunal is satisfied, based on the evidence provided, that a new pattern of care for [Child 1], [Child 2] and [Child 3] commenced from 12 August 2022 with Mr Simmers providing care of 126 nights (76 nights in school terms and 50 nights in school holidays) and Mrs Simmers  providing care of 239 nights.  This is equal to 34 per cent care to Mr Simmers and 66 per cent care to Mrs Simmers.

10. The existing percentages of care reflected in the assessment for [Child 1], [Child 2] and [Child 3] were 0 per cent care to Mr Simmers and 100 per cent care to Mrs Simmers. 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.

11. 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.

12. The Tribunal finds that Mr Simmers notified Child Support of the change in care on 15 August 2022. As this is less than 28 days after the change occurred on 12 August 2022, according to paragraph 54F(3)(a) of the Act, the existing care determinations are therefore revoked on the day before the change of care day.

New care percentage determinations

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

2. For the reasons outlined above the Tribunal finds that Mr Simmers provides 34 per cent care and Mrs Simmers provides 66 per cent care of [Child 1], [Child 2] and [Child 3] from 12 August 2022.

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. Mr Simmers applied to the Tribunal on 9 March 2023 for a review of the objection decision made by Child Support on 16 January 2023.  The Tribunal is satisfied Mr Simmers was advised about the outcome of the objection decision by electronic means in a letter from Child Support dated 16 January 2023.  Given his 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 he applied for review.

3. The Tribunal may extend the 28 days if there are special circumstances that prevented Mr Simmers 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. Mr Simmers told the Tribunal there was no particular reason for the delay in seeking a review but he just decided one day he should dispute the Child Support decision as it was incorrect.

7. The notification of the objection decision provided by Child Support dated 16 January 2023 outlines what to do if Mr Simmers disagreed with that 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.

8. The Tribunal is not satisfied the circumstances as described by Mr Simmers were sufficiently special such that they prevented him from applying for a review within 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 Mr Simmers, being 9 March 2023.

DECISION

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Simmers provides 34 per cent care of [Child 1], [Child 2] and [Child 3] and Mrs Simmers provides 66 per cent care from 12 August 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 9 March 2023.