Tate and Lowe (Child support)

[2019] AATA 5507

Tate and Lowe (Child support) [2019] AATA 5507 (15 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/HC017029

APPLICANT:  Mrs Tate

OTHER PARTIES:  Child Support Registrar

Mr Lowe

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  15 October 2019

DECISION:

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Tate provides 23 per cent care and Mr Lowe provides 77 per cent care of [Child 1] from 3 September 2018; and

(b) The Tribunal declines to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 29 July 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

CHILD SUPPORT – date of effect of the tribunal’s decision – whether there were special circumstances that prevented the application for review being lodged in time – special circumstances do not exist – tribunal refuses to make a determination – the date of effect of the tribunal’s decision is the date the application for review was lodged

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 is about a change to the percentage of care determinations for Mrs Tate and Mr Lowe in respect of the child [Child 1].

2. Mrs Tate and Mr Lowe are the parents of [Child 1] (born January 2008) and Mr Lowe was the parent liable to pay child support under the assessment.  From 28 February 2011 the child support assessment reflected Mrs Tate as having 70 per cent care and Mr Lowe as having 30 per cent care of [Child 1].

3. On 3 September 2018 Mr Lowe advised the Department of Human Services, Child Support (the Child Support Agency) of a change of care stating that he provides 100 per cent care and Mrs Tate provides 0 per cent care of [Child 1] from 3 September 2018.

4. On 20 September 2018 the Child Support Agency made the decision to reflect that Mr Lowe provides 100 per cent care and Mrs Tate provides 0 per cent care of [Child 1] from 3 September 2018.

5. On 11 December 2018 Mrs Tate objected to this decision and on 9 April 2019 the Child Support Agency disallowed the objection (the objection decision).

6. On 29 July 2019 Mrs Tate applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 15 October 2019.  Mrs Tate and Mr Lowe gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (88 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).[1]

   [1] As it applied after 23 May 2018 and 1 July 2018

2. 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.

3. 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 has, or is likely to have, during a 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 the likely care is thereafter.  The task of the Tribunal on review is the same.

4. 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 new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mrs Tate told the Tribunal that care of [Child 1] changed when she relocated to [Country 1].  Mrs Tate said [Child 1] moved in with Mr Lowe on 3 September 2018 and she left around a week later.  Mrs Tate said the parents had discussed care of [Child 1] at the time and decided he would spend all his school holidays with her.  Mrs Tate said as it turned out, [Child 1] did not spend the September school holidays with her but all other holidays since then.

2. Mrs Tate said the care recorded for [Child 1] was not correct and it was important to her to set the record straight.

3. Mr Lowe agreed that the parents had made an arrangement for [Child 1] to spend all his school holidays with Mrs Tate when she moved to [Country 1].  Mr Lowe said he thought he had advised the Child Support Agency of the situation in relation to the ongoing care of [Child 1] but felt there may have been a misunderstanding.  Mr Lowe also confirmed that [Child 1] had been spending the school holidays with Mrs Tate but starting in December 2018.

4. Mr Lowe told the Tribunal he had attempted to rectify the situation with the Child Support Agency by contacting them again on 23 May 2019.  Mr Lowe said as a result, the level of care had been corrected but was not backdated.  Mr Lowe said he understood that care could not be backdated.

5. It is not in contention and the parents agree that care changed on 3 September 2018.  The parents also agree that from this date [Child 1] was to spend school term time with Mr Lowe and school holidays with Mrs Tate although this did not commence until December 2018.

1. The Western Australian school calendar is divided into four terms with 40 weeks a year of school and 12 weeks a year of holidays. While Mrs Tate did not have care during the September 2018 school holiday period the Tribunal is satisfied it was the intention of both parents when care changed that [Child 1] was to spend all his holidays with her in [Country 1].

2. For the reasons outlined, the Tribunal is satisfied that Mrs Tate has care of 84 nights or 23 per cent and Mr Lowe has care of 281 nights or 77 per cent of [Child 1].

3. The existing percentages of care reflected in the assessment for [Child 1] were 70 per cent care to Mrs Tate and 30 per cent care to Mr Lowe.  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 determinations must be revoked and replaced by new percentage of care determinations.

4. 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.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mrs Tate and Mr Lowe under section 50 of the Act.

2. The Tribunal finds that Mrs Tate provides 23 per cent care and Mr Lowe provides 77 per cent care of [Child 1] from 3 September 2018.

Date of effect of new care percentage determinations

1. An application for Tribunal first review of a care percentage decision does not have to be lodged within 28 days (90 days for residents of an overseas jurisdiction). If it is lodged outside the 28 days (90 days for residents of an overseas jurisdiction) and the Tribunal decides to either vary the objection decision or make a new decision, the effective date of the objection decision as varied or the new decision is the date on which the application for review was made (section 95N of the Child Support (Registration and Collection) Act 1988).

2. Mrs Tate resides in [Country 1].  She applied to the Tribunal on 29 July 2019 for a review of the 9 April 2019 objection decision made by the Child Support Agency.  The Tribunal is satisfied her application was not made within 90 days of receiving notice of this decision.  The date of effect of any new decision by the Tribunal is, therefore, the date she applied for review.

3. The Tribunal may extend the 90 days if there are special circumstances that prevented Mrs Tate from applying for review within this period.  While the Child Support (Registration and Collection) Act 1988 does not define special circumstances, the Child Support Guide at 4.1.8 provides some guidance and states the circumstances must be “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.”  Examples include the parent being seriously ill, suffering a personal trauma, a natural disaster causing damage to the parent’s property or communication difficulties.

4. In discussing this matter at hearing, Mrs Tate told the Tribunal she could not recall when she received the objection decision from the Child Support Agency.  She said after submitting her objection on 11 December 2018 she did not hear from the Child Support Agency again and was waiting for updates.  The Tribunal notes in evidence that on 13 December 2018 the Child Support Agency wrote to Mrs Tate in relation to the objection review process underway and asked her to provide any relevant information by 25 February 2019.  Mrs Tate did not respond.  Her next contact with the Child Support Agency was on 29 July 2019.

5. The Tribunal is not satisfied the events as described by Mrs Tate would have prevented her from making an earlier application for review to the Tribunal.  The notification of the objection decision provided by the Child Support Agency dated 9 April 2019 outlines what to do if Mrs Tate disagreed with the decision.  This includes asking the Tribunal to undertake a review within 90 days from the date she received that correspondence.

6. The Tribunal finds there were no special circumstances preventing Mrs Tate from applying for review within the time frame prescribed.  Accordingly the Tribunal will not extend the 90-day period and its decision is effective from the date of Mrs Tate’s application, being 29 July 2019.

DECISION

(a)The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Tate provides 23 per cent care and Mr Lowe provides 77 per cent care of [Child 1] from 3 September 2018; and

(b)The Tribunal declines to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the Tribunal’s decision in (a) above is 29 July 2019.