Smiley and Wimsey (Child support)

[2023] AATA 2144

Smiley and Wimsey (Child support) [2023] AATA 2144 (21 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2023/SC025502 & 2023/SC025786

APPLICANT:  Ms Smiley

OTHER PARTIES:  Child Support Registrar

Mr Wimsey

TRIBUNAL:Senior Member S De Bono

DECISION DATE:  21 June 2023

DECISION:

The decision under review is affirmed.

(This means the application for review is unsuccessful.)

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 affirmed

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. Ms Smiley and Mr Wimsey are the parents of [the child]. There has been a child support assessment in place from 25 November 2019. This application for review concerns the care of [the child]. From the date of registration of the child support case [the child] has been recorded as being in Ms Smiley’s 100% care and Mr Wimsey’s 0% care. Mr Wimsey was the parent liable to pay child support. The CUBA screens show the child support case commenced for [the child] on 16 July 2004. However, the objections officer’s decision states that the child support assessment commenced on 25 November 2019, as indicated above. Services Australia (Child Support) has collected child support from 22 October 2020.

2. On 3 November 2021 Mr Wimsey notified Child Support that the care of [the child] had changed from 1 October 2021 and that [the child] was in his 100% care. On 22 November 2021 Child Support made the decision that [the child] was in Mr Wimsey’s 100% care from 1 October 2021.

3. On 28 October 2022 Mr Wimsey lodged an objection to this decision as he said he had 100% care of [the child] from 1 October 2020 and not 1 October 2021. Ms Smiley agreed that [the child] stayed with his father full-time from 1 October 2020. As Mr Wimsey requested a review more than 28 days after the decision made on 22 November 2021, Child Support made the decision that special circumstances existed which prevented Mr Wimsey from lodging his application earlier and accepted that the change of care for [the child] should apply from 1 October 2020.[1] Child Support made its objection decision on 20 December 2022 and the care determination for [the child] was updated accordingly, thereby partially allowing the objection lodged by Mr Wimsey on 28 October 2022.

   [1] This was a subsection 87AA(2) determination made under the Child Support (Registration and Collection) Act 1988 by Child Support. The objections officer determined that Mr Wimsey had notified Child Support on 12 November 2020 that the care for [the child] had changed on 1 October 2020 and Child Support failed to update this information at that time.

4. On 27 January 2023 Ms Smiley lodged an application for review of this decision with the Administrative Appeals Tribunal (the Tribunal).

5. On 2 May 2023 Ms Smiley gave evidence under affirmation via telephone hearing, Mr Wimsey was unable to be contacted. The Tribunal had before it a bundle of documents (78 pages – referred to as the hearing papers).[2] Which had been sent to both parties prior to the hearing. Relevant aspects of the material and evidence will be referred to in the Tribunal’s consideration of the issues to be decided.

ISSUES

[2] These documents are the Child Support files provided by Child Support in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

1. The issues which arise in this case are:

   • Should the existing care determination be revoked? And, if so,
   • What is the date of effect of the new care determination and what are the percentages of care for [the child] for each parent?

LAW AND CONSIDERATION

1. The statutory provisions relevant to this review are found in the Child Support (Assessment Act) 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the Tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3]

   [3] [1979] AATA 179.

2. The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

3. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Government policy, as set out in section 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the care of a child began or changed, and the same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

4. Upon Mr Wimsey’s objection Child Support accepted that the care changed for [the child] from 1 October 2020 and the objections officer found that the care change was notified by Mr Wimsey on 12 November 2020. This is the decision Ms Smiley is appealing.

Issue 1 – Should the existing care determination be revoked?

1. The first issue for the Tribunal to consider is whether the existing care determination of 100% care to Ms Smiley and 0% care to Mr Wimsey should be revoked.

2. Ms Smiley did not disagree that [the child] went to live with his father on 1 October 2020.

3. On 22 November 2021 Child Support accepted a child support assessment application for [the child].[4] The administrative assessment applied from 3 November 2021 to 2 June 2022 and recorded Mr Wimsey as having 100% care of [the child] and Ms Smiley as having 0% care of [the child]. However, it was determined at that time that Mr Wimsey had notified Child Support more than 28 days after the care had changed on 1 October 2020. (As noted above, the objections officer later found that the care change had been notified by Mr Wimsey on 12 November 2020.)

   [4] Page 20 of the hearing papers (2023/SC025502).

4. Ms Smiley said [the child] went to stay with Mr Wimsey on 1 October 2020 because he no longer wanted to attend school. Ms Smiley said [the child] relocated from [City], where she lives, to [Suburb] where Mr Wimsey lives. She said [the child] was hoping to get a job in Sydney. This didn’t work out for [the child] and Ms Smiley said [the child] returned to her care in mid May 2021 and remained in her care until just before his 18th birthday. The Tribunal notes that [the child] turned 18 [in] June 2022.

5. Child Support’s notes in the hearing papers also indicate that Ms Smiley initially told Child Support that she agreed [the child] had been in Mr Wimsey’s 100% care from 1 October 2021, and later agreed that the care started from 1 October 2020. This would indicate that [the child] stayed with Mr Wimsey from 1 October 2020 and was still living with Mr Wimsey on 22 November 2021 and had not returned to Ms Smiley’s care in mid May 2021.[5]

   [5] Page 13 of the hearing papers (2023/SC025502 and 2023/SC025786).

6. Ms Smiley did not provide further evidence to the Tribunal which supported her submission that [the child] returned to her 100% care either in March 2021 or May 2021 and Child Support’s notes in the hearing papers indicate Mr Wimsey did not agree that [the child] had returned to Ms Smiley’s 100% care at that time.

7. Ms Smiley was upset that previously when she was providing 100% care of [the child] she did not register for Child Support collection from Mr Wimsey and she said he did not pay her any child support for the period in which she had 100% care of [the child].

8. In relation to the care change notified by Mr Wimsey (which is the subject of this review) the Tribunal is satisfied that the existing care determination of 100% care of [the child] to Ms Smiley and 0% care of [the child] to Mr Wimsey should be revoked and a new care determination made.

9. The Tribunal is satisfied that the existing care percentage of 100% care to Ms Smiley and 0% care to Mr Wimsey should be revoked in accordance with section 54F of the Act. Section 54F of the Act provides:

   Determination must be revoked if there is a change to the responsible person's cost percentage

   (1)  The Registrar must revoke a determination of a responsible person's percentage of care (the existing percentage of care ) for a child made under section 49 or 50 if:

   (a)  the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and

   (b)  the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

   (c)  section 54G does not apply; and

   (d)  subsection (2) applies in relation to the individual.

   Note:        The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

10. The Tribunal is satisfied that care of [the child] had changed where Ms Smiley had 0% care and Mr Wimsey had 100% care and the existing care determinations should be revoked. In terms of the date of effect of the revocation of the previous care determinations, subsection 54F(3) of the Act provides:

    (3)  The revocation of the determination takes effect at the end of:

    (a)  if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day; or

    (b)  if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

    (i)  the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

    (ii)  the responsible person's care of the child has reduced--the day before the change of care day.

11. Generally, if care is notified more than 28 days after the change of care occurred the date of effect of the revocation determination is made in accordance with paragraph 54F(3)(b). Mr Wimsey notified of the change of care for [the child] on 3 November 2021. This means the existing care determination of 0% care to Mr Wimsey is revoked in accordance with subparagraph 54F(3)(b)(i). This means Mr Wimsey’s existing care determination of 0% care is revoked from 2 November 2021.

12. Child Support was originally notified that Ms Smiley had reduced care of [the child] from 1 October 2021. As Ms Smiley had reduced care of [the child], the Tribunal is satisfied that the existing care determination of Ms Smiley having 100% care of [the child] is revoked in accordance with subparagraph 54F(3)(b)(ii). In accordance with this subparagraph the existing care determination of 100% care of [the child] to Ms Smiley is revoked from 30 September 2021.

Issue 2 – What is the date of effect of the new care determination and what are the percentages of care for [the child] for each parent?

1. On 28 October 2022 Mr Wimsey lodged an objection to the decision made on 22 November 2021. Mr Wimsey said his care increased from 1 October 2020 and not 1 October 2021. As Mr Wimsey’s objection was made more than 28 days after the original care decision, the objections officer, in partially allowing Mr Wimsey’s objection, applied section 87AA of the Registration and Collection Act to determine the date of effect of the care decision. Section 87AA provides:

   Date of effect of objections relating to care percentage decisions that are allowed

   (1)  If:

   (a)  a person lodges, under section 80A, an objection to a care percentage decision; and

   (b)  the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and

   (c)  the Registrar decides (the review decision ), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;

   the date of effect of the review decision is the day on which the person lodged the objection.

2. Generally, subsection 87AA(1) provides that the date of effect of a care percentage decision applies from the date the person lodges an objection to the Child Support decision, including in a situation where an objection is lodged more than 28 days after the objection decision. In the ordinary course this would mean that the date of effect of the care determination of 100% care to Mr Wimsey would apply from 28 October 2022, the date he lodged his objection to the Child Support decision. As [the child] turned 18 [in] June 2022, the decision to apply the care change from 28 October 2022 would not have had any effect.

3. However, subsection 87AA(2) provides:

   (2)  If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:

   …

   (b)  …the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

4. The objections officer made the decision that a longer period applied and accepted that special circumstances prevented Mr Wimsey from lodging an objection earlier. As Ms Smiley did not disagree that the care of [the child] changed on 1 October 2020, and she did not submit that special circumstances should not apply, the Tribunal affirms the decision of the objections officer. The objections officer determined that Mr Wimsey had in fact notified of the 1 October 2020 care change of [the child] on 12 November 2020 and Child Support had not updated their records. It seems to the Tribunal that the objections officer made a subsection 87AA(2) determination to correct the earlier error made by them.

Other issues

1. On 28 November 2022 Ms Smiley lodged a new change of care in which she said [the child] returned to her 100% care in mid May 2021.[6]  On 30 November 2022 Child Support contacted Mr Wimsey to discuss the care change notified by Ms Smiley with him. Mr Wimsey told Child Support that [the child] has lived with him since 1 October 2020 and [the child] had just moved out with his girlfriend into their own house two months ago.[7]

   [6] Page 30 of the hearing papers (2023/SC025502).

   [7] Page 34 of the hearing papers (2023/SC025502).

2. Mr Wimsey told Child Support that [the child] may have visited Ms Smiley on occasion, but he had remained living with him until he moved out with his girlfriend. Child Support’s notes in the hearing papers indicate that Mr Wimsey did not agree that [the child] went to stay with Ms Smiley for the period she indicated to Child Support. Mr Wimsey told Child Support that [the child] went to visit Ms Smiley but did not stay with her from mid May 2021 until just before his 18th birthday, [the child] remained living with him and in his 100% care.[8]

   [8] Pages 41–42 of the hearing papers (2023/SC025502).

3. As noted above, Child Support’s notes in the hearing papers also indicate that Ms Smiley initially told Child Support that she agreed [the child] had been in Mr Wimsey’s 100% care from 1 October 2021, later stating it was from 1 October 2020. This would indicate that [the child] stayed with Mr Wimsey from 1 October 2020 and was still living with Mr Wimsey in late 2021 and had not returned to Ms Smiley’s care in March or mid May 2021.[9]

   [9] Page 67 of the hearing papers (2023/SC025502).

4. The Tribunal notes that Ms Smiley was wanting to appeal the decision not to make a new care determination in accordance with her change of care notification on 28 November 2022. There is a note  in the hearing papers, made by Child Support and dated 30 November 2022, that a decision was made to not accept Ms Smiley’s change of care notification and to leave the care decision in place as 100% to Mr Wimsey and 0% to Ms Smiley from 5 March 2021.[10] But if a letter was sent to Ms Smiley advising her of this decision it was not in the hearing papers before the Tribunal. The Tribunal was not able to ascertain if Ms Smiley had lodged an objection to this decision. As there was no objection decision in relation to the care change notified by Ms Smiley on 22 November 2022 the Tribunal concluded that it does not have jurisdiction to review this decision and Ms Smiley will need to lodge an objection with Child Support in relation to the decision to reject the notification of the new care determination made by her.

   [10] Page 68 of the hearing papers (2023/SC025502).

DECISION

The decision under review is affirmed. (This means the application for review is unsuccessful.)