Sorley and Sorley (Child support)

Sorley and Sorley (Child support) [2019] AATA 570 (14 February 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2018/PC015165 and 2018/PC015188
APPLICANT:  Mr Sorley
OTHER PARTIES:  Child Support Registrar
Mrs Sorley

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 14 February 2019
DECISION:
2018/PC015165

The Tribunal sets aside the care percentage decision under review and, in substitution, decides that Mr Sorley provides 40 per cent care and Mrs Sorley provides 60 per cent care of [Child 1] from 9 July 2017.

2018/PC015188

The Tribunal affirms the date of effect decision under review with the consequence being the date of effect of the decision in 2018/PC015165 above is 9 July 2018.

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 objection decision – whether there were special circumstances that prevented the objection being lodged in time - no special circumstances exist - decision under review affirmed

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 Sorley and Mrs Sorley are the parents of [Child 1] (born September 2014) and Mr Sorley is the parent liable to pay child support under the assessment.
From 1 August 2016 the child support assessment reflected Mr Sorley as having 30 per cent care and Mrs Sorley as having 70 per cent care of [Child 1].
On 9 July 2017 Mr Sorley advised the Department of Human Services, Child Support (the Child Support Agency) of a change of care stating that from 24 July 2017 he had 35 per cent care and Mrs Sorley had 65 per cent care of [Child 1].
On 29 August 2017 the Child Support Agency made the decision to reflect that Mr Sorley had 35 per cent care and Mrs Sorley had 65 per cent care of [Child 1] from 24 July 2017 (the original decision).
On 9 July 2018 Mr Sorley objected to the original decision and on 6 September 2018 the Child Support Agency allowed the objection in part and made the decision that Mr Sorley provides 39 per cent care and Mrs Sorley provides 61 per cent care of [Child 1] from 3 May 2017 (the objection decision). As the Child Support Agency found there were no special circumstances which prevented Mr Sorley from objecting earlier, the objection decision was applied from 9 July 2018 (the date the objection was lodged).
On 4 October 2018 Mr Sorley applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision and the date of effect of the objection decision.
The Tribunal conducted a hearing into the application on 10 January 2019. Mr Sorley and Mrs Sorley gave evidence on affirmation by conference telephone. Mr Sorley was represented by [Mr A] from [a named organisation]. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (328 pages). Additional documents were received from Mr Sorley prior to the hearing (A1-A4) and a copy was distributed to the parties.
At hearing [Mr A] requested that Mr Sorley be permitted to provide additional evidence in relation to the matter. The Tribunal agreed and this additional evidence, in the form of audio files and supporting transcripts, was received on 23 January 2019 (A5-A18). A copy of the additional written evidence was provided to Mrs Sorley and she was given until close of business on 12 February 2019 to provide comment. Her comments were received on 12 February 2019 (B1-B3). The Tribunal considered this additional evidence, and the comments from Mrs Sorley, before making its decision.

ISSUES

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).
The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.
Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent had, or is likely to have, during an appropriate care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.
The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.
The issues which arise in this case are:
· has there been a change in the pattern of care for [Child 1] which requires existing percentages of care to be revoked and new care determinations to be made; and if so,
· from what date should the new percentage of care determinations take effect?

CONSIDERATION

[Mr A] submitted there were two issues of concern to his client with the first being the historic level of care for [Child 1] and the second being the level of care going forward. [Mr A] said that Mr Sorley believed the historic level of care was incorrect and wished to have any change that might be made by the Tribunal backdated to account for this error.
Mr Sorley told the Tribunal he disputed both the level of care recorded at the time the child support assessment commenced as well as the level of care arising from the objection decision made by the Child Support Agency on 6 September 2018. Mr Sorley said the Child Support Agency had consistently under-represented his level of care. Mr Sorley said from the outset he had objected to the level of care in place when the child support case began on 12 January 2017 and had continued to express his concern but was ignored by the Child Support Agency and given inaccurate advice. Mr Sorley said this poor advice had prevented him from addressing the incorrect care in place from the commencement of the assessment. He said that recordings of his conversations with the Child Support Agency, obtained through freedom of information, confirmed this to be the case.
Mr Sorley said as a result of the ambiguous and misleading advice from the Child Support Agency he believed the correct level of care should be recorded from the date the child support case commenced on 12 January 2017 and not when his care changed.
The Tribunal explained to Mr Sorley the matter under consideration related only to the care percentage determination made by the Child Support Agency following his notification of a change of care on 9 July 2017. The Tribunal made it clear that care in place at the time the assessment commenced had its own objection rights and was not part of the current review.
Mr Sorley told the Tribunal that he had notified the Child Support Agency of the change in care for [Child 1] following commencement of a parenting plan agreed upon by the parents. He said the parenting plan meant his previous care was no longer accurate. Mr Sorley said the Child Support Agency had recorded at the time that his care would be at least five nights a fortnight, or 35 per cent care, which was not correct. Mr Sorley said he had a transcript of his conversation with the Child Support Agency when the matter was discussed on 22 August 2017 which made it clear he did not agree to care of five nights a fortnight.
Mr Sorley said that under the parenting plan he has care of 11 nights every 28 days. In addition to this scheduled care he has additional care during holidays and for special times.
Mr Sorley told the Tribunal he had provided the Child Support Agency with a calendar of care which showed that for the 12 months from commencement of the child support case his care was 44 per cent. He said that a second calendar of care showed his predicted level of care for 2018 to be 45 per cent. Mr Sorley said this level of care was due to extra care he provided in addition to his scheduled care under the parenting plan. Mr Sorley said this was allowed for under the parenting plan such as during the Christmas holiday period when he has 100 per cent care from Christmas Day until the second Sunday in January.
Mr Sorley said the Child Support Agency had determined that this additional care was ad hoc with no specific pattern and so did not include it in calculating his level of care. Mr Sorley said he did not consider his additional routine holiday care to be ad hoc as it was in accordance with the parenting plan which both parents were following. Mr Sorley said he had discussed this routine additional care with the Child Support Agency but was ignored.
Mr Sorley added that the parents allowed for some flexibility in the parenting plan. He said it had been working well and was the continuation of a long-standing arrangement. Mr Sorley said it was his view that under the parenting plan he was always to have additional care during the end of year holiday period and this had happened in 2017-18 and 2018-19.
The Tribunal notes in evidence provided by the Child Support Agency a copy of the parenting plan for [Child 1]. The parenting plan is signed by Mr Sorley on 1 May 2017 and by Mrs Sorley on 3 May 2017. It states that Mr Sorley will have care during the ordinary school term for two nights in week one, three nights in week two, two nights in week three and four nights in week four. This totals 11 nights every 28 days.
The parenting plan also allows for makeup time in the event the child travels with the parent interstate or overseas at any time either during school term or during school holidays.
In addition to care during school term the parenting plan, at paragraph 10, allows for overnight care as follows:
·     on the mother’s or father’s birthday at such time as agreed by the parents;
·     Christmas eve and Christmas morning with the mother and Christmas afternoon and Christmas night with the father;
·     Easter from 2017 and every alternate year with the mother and from 2018 and every alternate year with the father; and
·     school holiday care upon commencement of school attendance (including the April, July and September holidays as well as care from Christmas Day until the second Sunday in the new calendar year).
Mrs Sorley told the Tribunal the parenting plan had been in place since May 2017 and this was when care for [Child 1] had changed. She agreed the parenting plan was being followed and the parents tried to stick to the 28-day routine as much as possible.
Mrs Sorley said the wording of the parenting plan around school term and school holidays was probably a mistake as it had created some dispute between the parents. Mrs Sorley said she had never agreed to Mr Sorley having additional care during the Christmas period as [Child 1] was not attending school. She said it was her interpretation of the parenting plan that the additional holiday care only commenced when [Child 1] started school. She said she had told Mr Sorley several times she disagreed with him on this point.
Mrs Sorley said at the time the parenting plan was signed there was no discussion between the parents about additional care during the Christmas 2017 holidays as she thought the parenting plan was quite clear. Mrs Sorley said Mr Sorley ignored her interpretation and so she eventually allowed him to have additional care during Christmas 2017 in order to keep things amicable. Mrs Sorley said this was not agreed upon until around October-November 2017 and had happened again during the Christmas holidays in 2018. Mrs Sorley acknowledged that Mr Sorley also had additional care of [Child 1] during special times as outlined in the parenting plan.
Ms Sorley agreed there was flexibility within the parenting plan that allowed makeup time should either parent want to take a holiday. She said this explained the additional care both parents had outside the 28-day routine since the plan commenced.
The Tribunal is satisfied, based on the evidence provided, that care for [Child 1] changed following the signing of the parenting plan on 3 May 2017.
The Tribunal notes in evidence provided by the Child Support Agency a care diary compiled by Mr Sorley for 2017 and for 2018. Mr Sorley told the Tribunal he started to record his care for [Child 1] from the beginning of January 2017. In the objection decision the Child Support Agency calculated the care provided by Mr Sorley for the period from 3 May 2017 to 2 May 2018 at 161 nights, or 44 per cent, based on these care diaries. [Mr A] confirmed that Mr Sorley agreed with the summation as set out in the objection decision. He said this was the basis of Mr Sorley’s argument. Mrs Sorley told the Tribunal she thought the care was about right but could not be certain as she did not keep a care diary during that particular time.
It is the view of the Tribunal in relation to change in care determinations that the legislation requires consideration of a pattern of care based on actual care to the time of original consideration of a change and the likely care thereafter. The Tribunal does not believe it appropriate, in undertaking a review, to assess care based on what happened from the time of consideration of the change by the Child Support Agency up to the time of the Tribunal’s hearing.
While it is often the case that many months may have transpired before the Tribunal undertakes its review and there may have been further changes in care, any such subsequent changes require further notification to the Child Support Agency so that a new care percentage decision can be considered and made if appropriate.
The Tribunal does not dispute the care provided by Mr Sorley as set out in his care diary for the care period from 3 May 2017 when care of [Child 1] changed. This is based on his actual care rather than the likely care from the date that care changed. The Tribunal is not satisfied that Mr Sorley’s additional care during the Christmas 2017-18 holidays was agreed upon at the time the parenting plan was signed nor does the Tribunal consider that Mr Sorley was to have further care of [Child 1] during school holidays as [Child 1] has yet to commence school. Mr Sorley believes he was always to have care during Christmas 2017-18 and future Christmas holiday times, however, Mrs Sorley has told the Tribunal this was never discussed until several months after the parenting plan was signed.
As the parents agree that care changed in line with the parenting plan signed on 3 May 2017 and this parenting plan is being adhered to, the Tribunal will instead calculate care as follows:
·     during the ordinary school term Mr Sorley is to have care of 11 nights every 28 days which equals care of 143 nights per year;
·     Mr Sorley is to have overnight care on his birthday and Christmas night which equals two nights; and
·     Mr Sorley is to have additional care during Easter from 2018 and every alternate year which equals four nights.
The Tribunal is satisfied this additional care to Mr Sorley during Christmas 2017 was a subsequent change of care requiring further notification to the Child Support Agency.
The Tribunal finds that, according to the parenting plan, Mr Sorley has care of [Child 1] totalling 149 nights or 40 per cent and Mrs Sorley has 60 per cent care.
The Tribunal acknowledges that care of [Child 1] may differ slightly during each year as both parents have said there will be some flexibility within the parenting plan, for example, due to holidays each parent may take. Such makeup care forms part of the parenting plan and the Tribunal does not consider these constitute a change to the pattern of care.
The existing percentage of care reflected in the assessment for [Child 1] was 30 per cent to Mr Sorley and 70 per cent to Mrs Sorley. Mr Sorley disputes this level of care, however, as previously explained this is a separate matter which Mr Sorley can object to should he wish to do so.
Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s 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 determination must be revoked and replaced by a new percentage of care determination. 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.
The Tribunal finds that Mr Sorley notified the Child Support Agency of the change in care on 9 July 2017 which is more than 28 days after the change occurred on 3 May 2017. Therefore, according to subsection 54F(2) of the Act, the existing determinations are revoked from the day before the date when the Child Support Agency was notified of the change, being 8 July 2017.

New care percentage decision

Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Mr Sorley and Mrs Sorley under section 50 of the Act.
For the reasons outlined above, the Tribunal makes new determinations that Mr Sorley provides 40 per cent care and Mrs Sorley provides 60 per cent care of [Child 1] from 9 July 2017.

Date of effect of new care percentage decision

An objection to a care percentage decision does not have to be lodged within 28 days, however, if it is lodged outside the 28 day period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the R&C Act).
The Child Support Agency may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days were a reference to such longer period as determined to be appropriate.
In this case the Child Support Agency did not find special circumstances existed and declined to make such a determination. As a consequence the date of effect of the objection decision is 9 July 2018 which is the date Mr Sorley lodged the objection.
A decision by the Child Support Agency to either make a determination under subsection 87AA(2) or not to make such a determination is separately reviewable by the Tribunal. Mr Sorley has also applied to the Tribunal for review of the date of effect decision made by the Child Support Agency under subsection 87AA(2) of the R&C Act.
The R&C Act does not define the term special circumstances, but the Family Court in Gyselman & Gyselman [1991] FamCA 93 has held, “as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary”.
Although not bound by the Child Support Guide issued by the Child Support Agency, the Tribunal is able to take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Relevantly, the Child Support Guide states at 4.1.8 that:
Special circumstances
In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:
·the parent was seriously ill or had an accident that stopped them from lodging an objection
·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property
·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills
·the parent reasonably relied upon inaccurate or misleading information.

Mr Sorley was advised about the outcome of the original decision in a letter from the Child Support Agency dated 29 August 2017. Given Mr Sorley lodged his objection more than 28 days after he was served with notice of the decision, the Tribunal is satisfied it must consider any special circumstances which prevented him from lodging within the prescribed timeframe.
Mr Sorley told the Tribunal he was not happy with his care percentage as outlined in the original decision but was told by the Child Support Agency that objecting would not affect the outcome and that his child support payments would not change as he was already considered to be within shared percentages of care. Mr Sorley said he felt he had objected verbally on previous occasions but his objections were either dismissed or he was redirected to other matters by child support officers. Mr Sorley said he had relied on inaccurate and misleading information provided to him by the Child Support Agency.
Mr Sorley said he objected to the original decision on 9 July 2018 based on new advice received from the Child Support Agency.
[Mr A] told the Tribunal the advice Mr Sorley had received from the Child Support Agency included a need to keep a diary showing care of at least 127 nights before he could submit an objection. [Mr A] said this advice was clearly incorrect as such a history of care was not required before making an objection to a care decision.
In the additional evidence received by the Tribunal on 23 January 2019 Mr Sorley provided audio files and supporting transcripts of conversations with officers from the Child Support Agency on 18 January 2017, 19 January 2017, 20 February 2017, 22 August 2017, 25 January 2018, 9 July 2018, 3 August 2018, 9 August 2018 and 5 September 2018.
The conversations Mr Sorley had with officers from the Child Support Agency prior to the date of the original decision – in particular the conversations on 18 January 2017, 19 January 2017 and 20 February 2017 – relate primarily to his concerns about the level of care from the time the child support assessment commenced and are not relevant. The conversation on 22 August 2017 relates to the change of care he notified the Child Support Agency about on 9 July 2017. The Tribunal accepts Mr Sorley advised the Child Support Agency that his care was “at least” five nights a week but if Mr Sorley was dissatisfied with the outcome of the original decision on 29 August 2017 he could still have objected sooner.
[Mr A] believes Mr Sorley was also poorly advised in relation to the need to keep a care diary for at least 127 nights before submitting an objection. This may be correct, however, it does not explain why he then waited until 9 July 2018 to lodge his objection. A care diary of 127 nights, or approximately four months, from the date of the original decision on 29 August 2017 would be completed around the end of December 2017. Mr Sorley submitted his objection a little more than six months after the end of December 2017.
The Tribunal also notes Mrs Sorley said in her comments made on 12 February 2019 that it was her view the additional evidence provided by Mr Sorley did not support his claim in relation to the date of effect of the Child Support Agency decision.
The Tribunal, after careful consideration of this additional evidence, is not satisfied the advice Mr Sorley received from the Child Support Agency prevented him from objecting sooner to the original decision made on 29 August 2017.
The Tribunal therefore affirms the decision made by the Child Support Agency not to exercise the discretion provided for in subsection 87AA(2) of the R&C Act.

DECISION
2018/PC015165

2018/PC015188

The Tribunal affirms the date of effect decision under review with the consequence being the date of effect of the decision in 2018/PC015165 above is 9 July 2018.

[2019] AATA 570

14 February 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction