Speakes and Hawdon (Child support)

[2021] AATA 1537

Speakes and Hawdon (Child support) [2021] AATA 1537 (12 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC020294

APPLICANT:  Miss Speakes

OTHER PARTIES:  Child Support Registrar

Mr Hawdon

TRIBUNAL:Member S Letch

DECISION DATE:  12 April 2021

DECISION:

The Tribunal decides to:

(a)   affirm the care decision under review so that care for [the child] is to be recorded as 67% to Mr Hawdon and 33% to Miss Speakes from 19 March 2020;

(b)   set aside the decision to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989, and determine there is no proper basis for a favourable application of that provision (the result being that the date of effect of the decision in (a) will be 22 July 2020, the day of Mr Hawdon’s objection to the original decision of 11 June 2020).

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

CHILD SUPPORT – care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – special circumstances do not exist – decision under review set aside and substituted

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

1. Miss Speakes and Mr Hawdon are the parents of [the child].

2. This matter concerns the recording of care for [the child] by the Child Support Agency (CSA) from 19 March 2020. The CSA received information from Centrelink on 11 June 2020 that care for [the child] was to be recorded as 70% to Mr Hawdon and 30% to Miss Speakes from 12 February 2020 to 18 March 2020; from 19 March 2020 (the subject of this review), care was to be recorded as 64% to Mr Hawdon and 36% to Miss Speakes.

3. Mr Hawdon objected to the decision on 22 July 2020 (notably, more than 28 days after he was deemed to have been notified of the CSA decision of 11 June 2020). On 19 November 2020, a CSA objections officer changed the decision and decided that care should be recorded as 67% to Mr Hawdon and 33% to Miss Speakes from 19 March 2020; furthermore, it was determined that, for the purposes of section 87AA of the Child Support (Registration and Collection) Act 1989 (the Act), there were special circumstances preventing timely objection and that the decision would take effect in the assessment from 19 March 2020.

4. Miss Speakes made a timely application to the Tribunal on 23 November 2020; she seeks review of both the care determination and the favourable application of section 87AA of the Act. Miss Speakes and Mr Hawdon participated in the Tribunal’s hearing by conference telephone.

5. Miss Speakes told the Tribunal that she should have 36% recorded care from 19 March 2020; final court orders have not been made, and interim orders are in place. Miss Speakes does not believe Mr Hawdon should be able to “object late”.

6. Miss Speakes presented evidence to the CSA that from March 2020 to August 2020, she has had calculated she had 54 out of 151 nights (or 36%). Miss Speakes said some of the dates recorded at page 11 (the objection decision) are not correct, and that the school holiday periods have not been properly calculated. She said that in March 2020, she had 8 nights (not 5); in April 2020 she had 10 nights not 7; in September 2020, she had 15 nights not 12 (including school holidays and [the child]’s birthday); in October 2020 she had 9 nights not 8; in December 2020 she had 11 nights (one less than the 12 recorded by CSA); and in March 2021, she had 9 nights.  

7. Mr Hawdon – not unreasonably – indicated he could not recall what happened on individual nights going back to March 2020. He had not been keeping a diary. Miss Speakes said she has been “keeping notes, but not a diary as such”. Mr Hawdon referred to page 103 of the CSA materials – he said he used the CSA care estimator (probably in around March 2020) to calculate his percentage.

8. The care determination provisions are contained in Part 5 of the Child Support (Assessment) Act 1989. These are “point in time assessments” to establish the pattern, or likely pattern of care. The Tribunal must establish the pattern, or likely pattern, of care as of 19 March 2020 over the “care period” (a “default period” of 12 months is generally applied).

9. The CSA calculated Miss Speakes’ care on the basis she was likely to have 120 nights over a 12-month period (rounded down to 33% –  comprised of two weekends out of every three (the Friday, Saturday, and Sunday night), and half the school holidays).

10. These calculations and expressions of care percentages do not come with a warranty of perfection. They are not intended to account for every single night; rather, a “broad brush” is adopted to strike a care percentage going forward. It is not the case after the completion of every care period that a comprehensive retrospective audit is undertaken to account for every night. There is also a reasonable tolerance for minor deviations from the usual pattern; there is also a tolerance for deviations which arise as a result of the timing of school holidays, birthdays, Mother’s Day and Father’s Day, and other minor disruptions to the usual pattern of care

11. In the circumstances of this case – where the orders have been largely adhered to, and there are only relatively minor departures –  the Tribunal prefers the broader, and commonly applied, approach adopted by the CSA in applying the general terms or structure of the orders. The relatively minor (and here, tolerable) deviations occurred mostly as a consequence of the timing of holidays and other days in the 12-month period that followed.

12. As the Tribunal agrees with the CSA decision care percentage determination, that decision will be affirmed.

13. In relation to Mr Hawdon’s late objection, Mr Hawdon initially said he recalled he did telephone the CSA earlier – he said the CSA indicated to him there was “something happening which prevented an objection”. He said they had mentioned the “old court orders” and they were “looking to use the new orders”. He said he was asked to telephone later to follow through.  The Tribunal took Mr Hawdon to page 100 of the CSA materials recording his contact of 22 July 2020 (his first recorded contact after the objection decision); Mr Hawdon indicated he was not sure and perhaps that may have been his first contact. 

14. The Tribunal considers that in the event Mr Hawdon had made an earlier contact to object (or indicate an intention to do so), such contact would have been recorded by the CSA. In the Tribunal’s experience – perhaps in contrast to contacts by citizens with Centrelink – the CSA is very diligent when it comes to recording contact. In the absence of any special circumstances preventing an objection by Mr Hawdon within the 28-day period following notification of the decision of 11 June 2020, there is no basis to apply section 87AA of the Act.

15. As this is a different conclusion to the objections officer, this determination will be set aside. The result will be that the date of effect of the decision recording Mr Hawdon’s care as 67% for child support purposes will be the date of his objection on 22 July 2020.

DECISION

The Tribunal decides to:

(a)   affirm the care decision under review so that care for [the child] is to be recorded as 67% to Mr Hawdon and 33% to Miss Speakes from 19 March 2020;

(b)   set aside the decision to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989, and determine there is no proper basis for a favourable application of that provision (the result being that the date of effect of the decision in (a) will be 22 July 2020, the day of Mr Hawdon’s objection to the original decision of 11 June 2020).