Stuttaford and Stuttaford (Child support)

[2021] AATA 1292

Stuttaford and Stuttaford (Child support) [2021] AATA 1292 (4 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC020286

APPLICANT:  Mrs Stuttaford

OTHER PARTIES:  Child Support Registrar

Mr Stuttaford

TRIBUNAL:Member J Longo

Member H Moreland

DECISION DATE:  4 February 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, makes a new determination of care that Mrs Stuttaford has 82% care of [Child 1], [Child 2] and [Child 3] and Mr Stuttaford has 18% care of [Child 1], [Child 2] and [Child 3] from 22 February 2019.

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 – date of effect – whether there were special circumstances that prevented the application for review being lodged in time – special circumstances exist

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

1.Mr Stuttaford and Mrs Stuttaford are the parents of [Child 1], [Child 2] and [Child 3]. Mr Stuttaford is the parent liable to pay child support.

2.From 16 September 2016, the Department of Human Services (now Services Australia) – Child Support (the Department) had determined that Mr Stuttaford had a percentage of care for [Child 1], [Child 2] and [Child 3] of 24% and that Mrs Stuttaford had a percentage of care of 76% of [Child 1], [Child 2] and [Child 3].

3.On 29 May 2019, Mrs Stuttaford notified the Department that the care of the children had changed and that Mrs Stuttaford had a care percentage of [Child 1], [Child 2] and [Child 3] of 94% and Mr Stuttaford had a care percentage of [Child 1], [Child 2] and [Child 3] of 6% from 22 February 2019. On 14 June 2019, the Department decided to change the care determination to reflect that Mrs Stuttaford had a care percentage of [Child 1], [Child 2] and [Child 3] of 94% and Mr Stuttaford had a care percentage of [Child 1], [Child 2] and [Child 3] of 6% from 22 February 2019.

4.On 30 June 2020, Mr Stuttaford lodged an objection to the above care decision of the Department, stating that there had been no change in care. On 25 September 2020, the Department allowed Mr Stuttaford’s objection and the care reverted back to the previous determination but as Mr Stuttaford lodged his objection more than 28 days from the date of the original decision, and there were no special circumstances, the decision took effect from the 30 June 2020 when he lodged his objection.

5.On 20 November 2020, Mr Stuttaford lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 4 February 2021. Mr Stuttaford and Mrs Stuttaford both spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision, the tribunal took into consideration the documents provided by the Department (57 pages), which were also sent to Mr Stuttaford.

CONSIDERATION

6.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

What is the care of [Child 1], [Child 2] and [Child 3]?

7.It is not in dispute that the Department had recorded Mr Stuttaford as having 76% and Mrs Stuttaford having 24% of the care of [Child 1], [Child 2] and [Child 3] from 16 September 2016. It is also not in dispute that Mrs Stuttaford contacted Centrelink on 29 May 2019 to advise that the care of the children had changed. The tribunal finds accordingly.

8.Mrs Stuttaford and Mr Stuttaford both confirmed that there are no court orders or parenting plan for the care of [Child 1], [Child 2] and [Child 3]. Both parents also confirmed that due to the children’s disabilities, they made arrangements regarding the children’s care via text message. Mrs Stuttaford described the care that had occurred for the children to the tribunal since July 2017. Mrs Stuttaford stated that while the pattern had initially commenced with Mr Stuttaford having one week of care per month, this reduced from October 2017 to between 5 and 3 nights per month until the end of the year. From 2018, Mrs Stuttaford’s evidence indicated that Mr Stuttaford had a pattern of care of the children of 3 nights each fortnight, with some minor increases and decreases of this care during 2019. Mrs Stuttaford stated that they were alternating every fortnight to allow the pick‑up and drop‑off of the children to occur at school. If not possible, this would occur from Mrs Stuttaford’s home. Mr Stuttaford stated that he agreed the evidence of Mrs Stuttaford regarding the pattern of care of the children over the period. He stated that he had told the Department that he was happy with the care being determined at 14% for the children.

Should the existing care determinations in relation to [Child 1], [Child 2] and [Child 3] be revoked?

9.Usually, a care determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children and that the change in care would change the cost percentage (section 54F of the Act). Where the new care percentage determination affects the care percentage but not the cost percentage, and certain other conditions under subsection 54H(1) of the Act are met, the Registrar (and the tribunal standing in the Registrar’s shoes) has discretion to change the care percentage.

10.Mrs Stuttaford notified the Department that the care taking place did not correspond with the existing care of [Child 1], [Child 2] and [Child 3] on 29 May 2019. Mr Stuttaford also confirmed in his evidence to the tribunal that the care occurring was not the same as the previous determination of the care by the Department. However, the change in the care of the children, based on the evidence of Mrs Stuttaford and Mr Stuttaford to the tribunal, would not have affected the cost percentages. Accordingly, the tribunal cannot change the care percentages for Mrs Stuttaford and Mr Stuttaford under section 54F of the Act. As the care percentage has not affected the cost percentage, the tribunal has taken into account Chapter 2.2.2 of the Child Support Guide (the Guide) and determined to revoke the existing care percentages and determine a new care percentage to ensure there is an accurate record of the care history in this matter under section 54H of the Act.

11.The tribunal is required to consider what the actual care of [Child 1], [Child 2] and [Child 3] was during the care period. The Act does not define what care period should be taken into account. It is such period as the Registrar (and the tribunal standing in the Registrar’s shoes) considers to be appropriate having regard to all the circumstances of the case. Chapter 2.2.1 of the Guide indicates that the Registrar will generally use a care period that is a 12‑month period beginning on the day on which the actual care of a child changed. The Guide also gives examples of when a shorter care period may be appropriate.

12.The tribunal has found that the oral evidence and statements provided to the tribunal indicate that the care determined for Mrs Stuttaford and Mr Stuttaford was not the care which was taking place as determined from 16 September 2016, since prior to February 2019. The evidence from both parents indicated that Mr Stuttaford had, on average, 3 nights of care of [Child 1], [Child 2] and [Child 3] from February 2018. This continued, with some variations, in 2019. Looking at the care period prior from February 2018 to February 2019, the tribunal determines that Mr Stuttaford had 18% of the care of [Child 1], [Child 2] and [Child 3] during this period. The tribunal notes that this care percentage has continued since February 2019, once again with minor variations. Accordingly, the previous determination of care is revoked from 21 February 2019 and a new determination made from 22 February 2019.

Date of effect of the tribunal’s decision

13.Section 95N of the Registration Act provides that a review decision will have effect from the date the application for review was made if the application was lodged more than 28 days after the objection decision. However, if there are special circumstances that prevented the person from lodging the application within 28 days, the tribunal may allow for a longer application period.

14.Mrs Stuttaford told the tribunal that during the time the decision was made, their daughter [Child 2] was in and out of hospital due to [medical condition]. She also had a head wound which was complicating her [medical condition] and she was also experiences breathing abnormalities. In addition, [Child 2] flooded their home and they were required to vacate for two weeks while repairs were undertaken. All three children suffer from serious conditions which require additional care and supervision.

15.The tribunal is satisfied that the issues relating to the children that Mrs Stuttaford was required to deal with during this period are unusual or uncommon and prevented the lodgement of an application for review with the tribunal within 28 days of the objection decision. The tribunal has therefore determined that the discretion contained in section 95N should be exercised in Mrs Stuttaford’s favour to give effect to this decision earlier than the date the application was lodged with the tribunal.

16.Accordingly, the date of effect of the tribunal’s decision in respect of the change in care will be 29 May 2019, the date Mrs Stuttaford contacted the Department regarding the change in care.

DECISION

The tribunal sets aside the decision under review and, in substitution, makes a new determination of care that Mrs Stuttaford has 82% care of [Child 1], [Child 2] and [Child 3] and Mr Stuttaford has 18% care of [Child 1], [Child 2] and [Child 3] from 22 February 2019.