Sumner and Fawcett (Child support)

[2021] AATA 4801

Sumner and Fawcett (Child support) [2021] AATA 4801 (27 October 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/SC022146 and 2021/SC022175

APPLICANT:  Mr Sumner

OTHER PARTIES:  Child Support Registrar

Miss Fawcett

TRIBUNAL:Member H Moreland

DECISION DATE:  27 October 2021

DECISION:

The tribunal sets aside the care percentage decision under review and, in substitution, decides that there was a change in care in relation to [the child], which was that from 12 March 2018, Mr Sumner had a care percentage of 0% and Ms Fawcett had a care percentage of 100%, and the date of revocation of the existing care percentage determinations for both parents is 3 March 2021.

The tribunal affirms the date of effect decision under review in respect of Mr Sumner’s objection, as there are no special circumstances that prevented Mr Sumner objecting to the care percentage decision within 28 days. The date of effect of this decision is therefore 31 May 2021.

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the likely pattern of care – existing percentage of care determinations revoked and new determinations made – whether repealed legislation should apply in relation to dates of revocation – date of effect of decision 87AA – no special circumstances – decision under review set aside and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

BACKGROUND

1. Mr Sumner and Ms Fawcett are the parents of [the child]. Mr Sumner is the parent liable to pay child support.

2. Services Australia – Child Support (Child Support) had the following care percentages on their records with regard to the care of [the child] from 18 March 2016: 86% for Ms Fawcett and 14% for Mr Sumner.[1] On 26 March 2021, Child Support then decided to change the percentage of care to reflect Ms Fawcett as having 100% of care, and Mr Sumner as having 0% of care from 12 March 2018.[2] Mr Sumner then lodged an objection to the decision on 31 May 2021. On 30 July 2021, an objections officer allowed Mr Sumner’s objection to the original decision.[3] The objections officer decided that because Mr Sumner required a review of the original care percentage decision more than 28 days after it was made, and they decided special circumstances didn’t apply, the date of effect of their decision to allow Mr Sumner’s objection to the original care percentage decision was the date that Mr Sumner objected to the original decision, which was 31 May 2021.[4]

   [1] Child Support documents, p 190.

   [2] Child Support documents, p 191.

   [3] Child Support documents, p 4.

   [4] Child Support documents, p 5-6.

3. On 24 August 2021, Mr Sumner lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the care percentage decision (2021/SC022146). According to the tribunal’s records, Mr Sumner lodged an application for a review of the date of effect decision on 30 July 2021. At the hearing, the tribunal asked Mr Sumner to clarify which decision he made an application for review for and when. Mr Sumner told the tribunal that his application for review by the tribunal related to the date of effect of the decision because the care did not change in 2017, it changed in 2018. The tribunal accepts this and finds that while the tribunal’s records may show differently, the date that Mr Sumner applied for a review of the objections officer’s decision with regard to the date of effect of the objection to the care percentage decision was 24 August 2021, which was within the required 28 days (2021/SC022175). The hearing took place on 27 October 2021. Mr Sumner and Ms Fawcett 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 Child Support (242 pages with the same hearing papers provided for each application (2021/SC022146 and 2021/SC022175)), which were also sent to Mr Sumner and Ms Fawcett.

CONSIDERATION

1. 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).

Was there a change in the care of [the child]?

1. There is no dispute that from 12 March 2018, the care of [the child] changed. Mr Sumner and Ms Fawcett are in agreement that when Ms Fawcett first contacted Child Support, she provided the incorrect date of 28 April 2017 and that Mr Sumner was correct when he contacted Child Support on 31 May 2021 to inform them that the care changed on 12 March 2018 and not 28 April 2017. Ms Fawcett told the tribunal that she simply made a mistake in providing the incorrect date of the change in care of [the child].

2. The tribunal concludes that Ms Fawcett had a care percentage of 100% for [the child] from 12 March 2018.

Should the existing care determination in relation to [the child] be revoked?

1. Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing 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.

2. In this case, the tribunal has determined that a care determination was made under section 50 of the Act, that being that Ms Fawcett had a care percentage of 86% in relation to [the child] and that Mr Sumner had a care percentage of 14% from 12 March 2018. The tribunal is also satisfied that the care that was taking place did not correspond with that care percentage decision. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [the child], the tribunal must determine the care during the care period. As noted above, there is no dispute that Ms Fawcett had a care percentage of 100% in relation to [the child] and that Mr Sumner had a care percentage of 0% from 12 March 2018.

From which date should the administrative assessment be amended to reflect the changes?

1. As noted above, Child Support was notified that there had been a change in care on 4 March 2021. From the papers, the tribunal concludes that no court orders in relation to the care of [the child] have been provided to Child Support.

10.With regard to the date of effect provisions, the tribunal notes that this matter relates to a period during which there were changes to the relevant legislation.

11.Prior to 23 May 2018, at subsection 54F(2), the Act provided that:

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

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

(i)in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or

(ii)otherwise—the day before that change of care day; or

(b) if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended—the day on which the interim period ends; or

(c) otherwise—the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.

12.In this case, that would mean that the date of revocation of the previous care determinations for both parents would be the day before the date that Child Support was notified of the change in care. That being 3 March 2021 (as Child Support was notified on 4 March 2021), so no variation in the rate of child support payable as a result of the change in care percentage would be payable prior to 4 March 2021.

13.The Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (the 2018 Amending Act) amended the date of effect provisions in two steps.

14.The first relevant step in the amended provisions was the insertion of subsection 54F(3) by section 37 in Part 1 of the 2018 Amending Act, to take effect from 23 May 2018. It read:

(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) otherwise—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter.

15.This case, under the amendment, would have the same outcome. It would mean that the date of revocation would be the day before the date that Child Support was notified of the change in care. That being 3 March 2021 (as Child Support was notified on 4 March 2021), so no variation in the rate of child support payable as a result of the change in care percentage would be payable prior to 4 March 2021.

16.This amendment however, according to section 39 of the 2018 Amending Act, took effect “in relation to any change of care day that occurs on or after the day [section 37] commences”. The change of care in relation to [the child] occurred on 12 March 2018, which was prior to section 37 of the 2018 Amending Act commencing on 23 May 2018.

17.The second relevant step of the amendments took effect from 1 July 2018. This amendment, made by clause 176 in Part 4 (Overpayments), Schedule 1 to the 2018 Amending Act replaced subsection 54F(3) with the following:

(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.

18.In this case, under this amendment there would be a different outcome. It would mean that the previous care determination for the parent whose care had increased (Ms Fawcett) would be revoked the day before Child Support was notified of the change in care (3 March 2021), but the previous care determination for the parent whose care had decreased (Mr Sumner) would be revoked the day before care changed. In this case that would be 11 March 2018.

19.The problem with this step is that it amended subsection 54F(3) of the Act which was inserted by the 2018 Amending Act to commence from 23 May 2018 and according to section 39 of the 2018 Amending Act, these changes did not apply to changes of care that took place prior to 23 May 2018. Subsection 54F(2) as it existed prior to 23 May 2018 has not, as far as the tribunal can see, been repealed in relation to change of care days that occurred prior to 23 May 2018. The pre-May 2018 subsection 54F(2) and the post-July 2018 subsection 54F(3) are in conflict, and logically cannot both apply to the same change in care.

20.The tribunal finds that as the amendment taking effect on 1 July 2018 amended a provision that took effect from 23 May 2018 and not before, there would need to be some other clear direction in the legislation, or accompanying materials, for the amendment taking effect on 1 July 2018 to apply prior to 23 May 2018.

21.The following transitional provision is included in Schedule 1, Part 4, Division 3 – “Date of effect rules” of the 2018 Amending Act:

183 Application—date of effect rules

The amendments of the Child Support (Assessment) Act 1989 made by this Division apply in relation to:

(a) changes of care days that occur on or after the day this item commences; and

(b) changes of care days that occur before the day this item commences if the Registrar or Secretary is notified, or otherwise becomes aware, of the change of care more than 26 weeks after the day this item commences.

22.The tribunal referred to the Explanatory Memorandum (the EM) that accompanied the relevant bill. It states:

Item 183 – Overpayments

On page 41, immediately after the paragraph starting with “Item 183”, insert: “This provides parents who have delayed in notifying a change of care with a transitional ‘grace period’ of 26 weeks from commencement to notify of the change of care before they become subject to the new care percentage date of effect rules.

As a result, a parent who had reduced their care of a child before commencement but failed to notify of the change until more than 26 weeks later would have the reduced care percentage reflected in their child support assessment from the date of the care change. This could lead to a child support overpayment or arrears debt being raised against that parent in some cases. However, this is appropriate given the reduced care percentage is an accurate measure of the lower care costs incurred by that parent as the date of the care change, and the ability to notify within a timely manner, was within the parent’s control.”

23.The problem with the date of effect rules set out in item 183 of the 2018 Amending Act is that they only apply to the change taking effect from 1 July 2018 as the section refers to “this division”, which is the same division containing the change taking effect on 1 July 2018. The 23 May 2018 amendment to the Act, introducing subsection 54F(3), was made in Schedule 1, Part 1, of the 2018 Amending Act. This means that the provision at item 183 applies only to the 1 July 2018 amendment, not the 23 May 2018 amendment.

24.The tribunal concludes that as the transitional rules, as set out in item 183 apply only to the 1 July 2018 amendment and there are no transitional rules in relation to the 23 May 2018 amendment, the correct interpretation of the legislation is that for changes of care that occurred prior to 23 May 2018, the previous legislation applies.

1. This means the tribunal finds that the date the previous care determination was revoked in the case of Ms Fawcett and Mr Sumner is 3 March 2021, so the date of effect of the change of care determination is from the date of notification (4 March 2021).

Date of effect – do special circumstances apply?

26.While there is no dispute that the care of [the child] changed from 12 March 2018, with Ms Fawcett having 100% of the care of [the child] from that date, nor that Mr Sumner did not take action to have the court orders enforced, there is dispute as to the date from when the administrative assessment should be amended to reflect the changes.

27.Ms Fawcett told the tribunal that she had contacted Child Support on 4 March 2021 to inform them of a change in her and [the child]’s address and it was during this conversation that she updated the care percentage. She said that she hadn’t told Child Support before then that the care had changed because she thought [the child] might change his mind about seeing his father. 

28.The tribunal asked Mr Sumner why he took longer than 28 days to object to the original decision of Child Support to change the care percentage that was sent to him on 26 March 2021.[5] Mr Sumner told the tribunal that he did not object to the decision until 31 May 2021 because he travels for work, although he returns home on weekends; and he doesn’t read his Child Support correspondence in detail because it generally contains only assessment information. He said that when he did open the notice regarding the decision made on 26 March 2021, it struck him because it said he owed more than $5,000.

[5] Child Support documents, p 115.

29.The tribunal concludes that Mr Sumner’s circumstances are not such that he was prevented from objecting to the original date within 28 days, so decides that it is not appropriate to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 to extend the 28-day period in which objections to care percentage decisions are to be lodged in the case of Mr Sumner’s objection.

DECISION

The tribunal sets aside the care percentage decision under review and, in substitution, decides that there was a change in care in relation to [the child], which was that from 12 March 2018, Mr Sumner had a care percentage of 0% and Ms Fawcett had a care percentage of 100%, and the date of revocation of the existing care percentage determinations for both parents is 3 March 2021.

The tribunal affirms the date of effect decision under review in respect of Mr Sumner’s objection, as there are no special circumstances that prevented Mr Sumner objecting to the care percentage decision within 28 days. The date of effect of this decision is therefore 31 May 2021.