Tata and Tata (Child support)

[2018] AATA 3058

Tata and Tata (Child support) [2018] AATA 3058 (21 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014003

APPLICANT:  Ms Tata

OTHER PARTIES:  Child Support Registrar

Mr Tata

TRIBUNAL:Member Y Webb

DECISION DATE:  21 June 2018

DECISIONS:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages in relation to the child are 59% to Ms Tata and 41% to Mr Tata from 3 November 2017.

Pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 the Tribunal decided not to make a determination and therefore its decision will have effect from 2 May 2018 being the date of lodgement of Ms Tata’s application for review.

CATCHWORDS

Child support - Percentage of care - Change to the likely pattern of care - Existing care percentage determinations revoked - New percentage of care determinations made - Decision under review set aside and substituted - Late application for review - Date of effect of the Tribunal’s decision - Whether special circumstances prevented the applicant lodging the application for review on time - No special circumstances found - Refusal to make a determination under subsection 95N(2)

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. This review relates to a decision of the Child Support Registrar of the Department of Human Services (Child Support Agency) in relation to the care of the child whose parents are Ms Tata and Mr Tata. Ms Tata and Mr Tata have two children but this review relates only to their eldest child who is 17 years old.

2. A child support case has been in place between Ms Tata and Mr Tata since 17 June 2014. The child has been recorded as being in the 50% care of each of the parents since that date.

3. On 6 November 2017 Ms Tata contacted the Child Support Agency and stated that the child was now in her 100% care and that that had been the situation since 3 November 2017.

4. On 30 November 2017 the Child Support Agency decided that the child had been in the 100% care of Ms Tata and the nil care of Mr Tata since 3 November 2017.

5. Mr Tata lodged an objection to that decision on 11 December 2017.

6. On 28 March 2018 an objections officer allowed Mr Tata’s objection and concluded that the child was in the 50% care of each of the parents and therefore that the care continued in accordance with the pattern of care in place since June 2014.

7. On 2 May 2018 Ms Tata applied for review by the Administrative Appeals Tribunal (the Tribunal).

8. Ms Tata and Mr Tata attended the hearing on 21 June 2018 by way of telephone conference and both gave evidence on affirmation.

ISSUES

1. The issues for the Tribunal to determine are:

   a)     What were the actual care arrangements in relation to the child in the relevant period?

   b)     Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care under the new determination and from when should it apply?

   c)     If there is a change to the percentages of care are there special circumstances which prevented the application from being made to the Tribunal within 28 days of the objection officer’s decision; and if so, should the discretion to extend the period in which to request a review be extended?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (Assessment Act) and the Child Support (Registration and Collection) Act1988 (Registration and Collection Act).

2. The legislation requires the Tribunal to determine a percentage of care for a parent based on the pattern of care that a parent has had or is likely to have for a child in a care period. The pattern can be established either according to a ‘care arrangement’ (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

3. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care.

4. Section 54A then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

5. In this case, Ms Tata and Mr Tata did not contend that nights were an unsuitable measure of the care that they were providing to the child and the evidence in the Child Support Agency papers indicates that nights have been the measure of care to date. The Tribunal finds that nights are an appropriate method of ascertaining the actual care of the child in this case.

Did the care change and when?

Ms Tata’s contentions

1. Ms Tata told the Tribunal that she no longer was asserting that the child was in her 100% care. At the time in November last year when she contacted the Child Support Agency she thought that her care would be 100% from 3 November 2017. This was because the child said, in November 2017, that he wanted to live with her 100% of the time. She contended that in the seven weeks leading up to mid-November 2017, the child had only spent one week with Mr Tata.

2. However, since that time Ms Tata contended that the child had been spending most weekends with her. She asserted that in the period October to December 2017 the child stayed with her for 11 out of 13 weekends. However, she stated that it was difficult to discern a pattern in relation to weeknights because the child decides where he will stay. Ms Tata referred to her calendar (a copy of which was included in the Child Support Agency papers). She asserted that the child was in the care of his father for only seven nights in October 2017, 12 nights in November 2017 and only six nights in December 2017. However, she agreed that the child chooses where he stays on weeknights and it is not necessarily very structured.

3. Overall, Ms Tata estimated her care to have been around 74% since 3 November 2017.

Mr Tata’s contentions

1. Mr Tata denied that the child has ever been in the 100% care of Ms Tata. He agreed that since around October last year the child has been spending most weekends with Ms Tata. He stated that this is because he will not allow the child to consume alcohol and this in turn has led to the child choosing not to stay with him on most weekends.

2. However, Mr Tata stated that the care is much more evenly divided between himself and Ms Tata on weeknights. He agreed that in October 2017 the child did not stay with him as often as usual but this was at a time when there was conflict between him and the child and the child chose to stay away. However, he does not believe that the care was as Ms Tata has asserted in October. In relation to November, Mr Tata stated that he was delayed in his return from [overseas] but that this only affected his 50/50 care by a couple of days. He did not agree with Ms Tata’s calendar for December 2017. He stated that he does not keep a diary or calendar but he does not think the days of care asserted by Ms Tata for December 2017 are correct even though he said that was a busy time for him workwise and he is not sure exactly how many days of care he had in that month. In summary, he stated that his care was temporarily reduced in October 2017 due to issues between him and his child; was slightly down in November 2017 and possibly in December 2017. However, he emphasised that apart from spending the majority of weekends with Ms Tata, the weeknights are more ad hoc with the child spending weeknights where he chooses or wherever is most convenient for the child’s activities. Despite some fluctuations Mr Tata asserted that the care has not significantly changed overall on weeknights. He contends the pattern of care on weeknights from November 2017 was and continues to be around 50% to each parent.

Tribunal’s consideration

1. There was agreement between the parents that the child was in the care of his mother on most weekends since around October 2017. Ms Tata contended that for 11 weekends out of 13 in the period between October and December 2017, the child was in her care. Mr Tata did not necessarily agree with the figures of 11 out of 13 weekends but he did agree that the child was mostly staying with his mother on weekends since around October/November last year.

2. In relation to weeknights, both parents agreed that these were less predictable and that the child, being a teenager, tends to stay with whichever parent he chooses during the week, depending on his preferences and the activities in which he is involved during the week. Mr Tata’s contention was that on weeknights the care overall is still around 50% to each parent. Ms Tata contended that overall (taking into account both weekends and weekdays) her care has been around 74% since October/November 2017.

3. The Tribunal acknowledges that, given that the child is 17 years old, there is no precision in the care arrangements. In relation to weekends, the Tribunal is satisfied that the child has been spending most weekends with Ms Tata. In the absence of clear agreement but taking into account both parents’ contentions, the Tribunal is satisfied that Ms Tata has 80% care of the child on weekends. Hence, the Tribunal finds that Ms Tata has 83 weekend nights of care out of 104 weekend nights.

4. In relation to weeknights the Tribunal is satisfied that the care is more unpredictable and is dependent on the child’s wishes and activities. The Tribunal is not satisfied, on the evidence provided, that there has been a change to the regular ongoing pattern of care in relation to weeknights even though it accepts that from month to month the number of nights spent with each parent fluctuates one way or the other. The Tribunal finds that on balance the nights of care on week nights from 3 November 2017 have continued to be around 50% to each parent overall. Hence of the remaining 261 nights of the year, the Tribunal finds that each parent’s care is 130.5 days.

5. The Tribunal therefore concludes that for the 12 month care period beginning 3 November 2017 Ms Tata’s care of the child was 59% (83 + 130.5 = 213.5 days/365) and Mr Tata’s care was 41% (21 + 130.5 = 151.5/365) with Mr Tata’s – being the lower percentage – rounded down in accordance with section 54D of the Assessment Act.

6. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care of a child that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

7. In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. Prior to 3 November 2017 Ms Tata had a care percentage of 50% and a cost percentage of 50% as did Mr Tata. The Tribunal’s determination will mean that Ms Tata will have a care percentage of 59% and a cost percentage of 63%. Mr Tata will have a care percentage of 41% and a cost percentage of 37%. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Assessment Act are met (and as section 54G of the Assessment Act does not apply because the Tribunal’s determination has not resulted in either of the parties having less than regular care) the Tribunal must revoke the existing determinations of percentage of care in accordance with section 54F which states:

   54F    Determination must be revoked if there is a change to the responsible person’s cost percentage

   (1)If:

   (a)a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and

   (b)if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and

   (c)the Registrar or the Family Assistance 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

   (d)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

   (e)section 54G does not apply;

   the Registrar must revoke the determination.

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

2. Subsection 54F(2) of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 3 November 2017. It also finds that Ms Tata notified the Child Support Agency of the change on 6 November 2017. As the Child Support Agency was notified within 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with subparagraph 54F(2)(a)(ii) on 2 November 2017, being the day before the change occurred.

3. Having revoked the existing determinations, the Tribunal must now make new determinations of Ms Tata’s and Mr Tata’s percentages of care under section 50 of the Assessment Act.

4. Section 54B of the Act sets out the date of effect of the new determinations of percentages of care. The percentage of care applies to each day in a child support period on and from the ‘application day’. In accordance with subparagraph 54B(2)(c)(ii) the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations. The Tribunal has revoked the existing determinations with effect from 2 November 2017. Therefore the new determinations apply from 3 November 2017. However, this date of effect is subject to whether there was a delay in seeking review by the Tribunal as detailed below.

Tribunal time limits

1. Ms Tata applied to the Tribunal for review of the objection decision of 28 March 2018 more than 28 days after she was notified of the objection decision. The Tribunal is satisfied that Ms Tata was advised electronically of the objection officer’s decision on the same date as that decision was made: that is, on 28 March 2018. Her application to the Tribunal was lodged on 2 May 2018. This was approximately 35 days after the objection decision of 28 March 2018. The Tribunal finds that Ms Tata lodged her application for review by the Tribunal more than 28 days after notification of the objection decision.

2. The Tribunal had regard to section 95N of the Registration and Collection Act which applies to this circumstance. Subsection 95N(1) states that if the decision under review is a decision on an objection to a care percentage decision, and the application for review was made more than 28 days after notification of the original decision, the new decision has effect, or is to be taken to have effect, on and from the day on which the application was made. In Ms Tata’s case, this means that the decision of 59% care to her and 41% to Mr Tata from 3 November 2017 takes effect from 2 May 2018 (unless subsection 95N(2) applies).

3. Subsection 95N(2) provides that if the Tribunal is satisfied that there are special circumstances that prevented Ms Tata making her application for review by the Tribunal within 28 days then other time limits may apply.

4. The Tribunal asked Ms Tata whether there were any special circumstances which prevented her from applying for review within 28 days of being notified of the objection decision.  The Tribunal finds that 28 days after 28 March 2018 was 25 April 2018 and that in accordance with the Acts Interpretation Act 1901 (subsection 36(2)) which in summary states that “if the last day for doing the thing is a … public holiday then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday”.  As 25 April 2018 was a public holiday, Ms Tata’s last day to apply for review was 26 April 2018.   

5. Ms Tata stated at the hearing that she could not claim any special circumstances. The reason that she applied after 28 days of being notified of the objection decision can be attributed to the stress and busyness of life and work. She agreed that she received the objection decision electronically and although she is not sure if she read the letter fully or noticed the reference to 28 days, she accepts that she received the letter and that it does include the statement about 28 days.   

6. After the hearing Ms Tata emailed the Tribunal Registry stating that she took personal leave from her employment on 24 April to 26 April 2018 and on 30 April 2018 due to a medical illness.  She provided leave records verifying that she was absent on personal leave on those dates. 

7. The Tribunal has considered Ms Tata’s statements regarding her application to the Tribunal and the later information which she provided.  However, the Tribunal considers that Ms Tata’s illness occurring as it did in the last couple of days of the available 28 day period does not constitute special circumstances.  In addition, no medical verification was provided.   Hence the Tribunal determines that there were not any special circumstances that prevented Ms Tata from applying to the Tribunal within 28 days of the objection decision of 28 March 2018.

8. Consequently, the Tribunal concludes that its decision of 59% care to Ms Tata and 41% care to Mr Tata has a date of effect of 2 May 2018.

DECISIONS

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages in relation to the child are 59% to Ms Tata and 41% to Mr Tata from 3 November 2017.

Pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 the Tribunal decided not to make a determination and therefore its decision will have effect from 2 May 2018 being the date of lodgement of Ms Tata’s application for review.