Teller and Child Support Registrar (Child support)

[2018] AATA 4519

Teller and Child Support Registrar (Child support) [2018] AATA 4519 (13 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014844

APPLICANT:  Mr Teller

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member Y Webb

DECISION DATE:  13 November 2018

DECISION:

1. The Tribunal varies the decision under review such that the care percentages in relation to the children are 88% to [Ms A] and 12% to Mr Teller from 8 September 2017 (with a date of effect for child support purposes of 13 December 2017).

2. The date of effect of the Tribunal’s decision is the date of lodgement of Mr Teller’s application for review; that is from 20 August 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether the likely pattern of care changed – existing percentage of care revoked – a new determination of percentage of care made – decision under review set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s care percentage decision – late application for review – special circumstances did not prevent the application for review being made on time – the date of effect of the tribunal’s decision is the date of lodgement of the application for review

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 the percentages of care of Mr Teller and [Ms A] in relation to their children (“the children”).

2. The children are aged nine and seven years.  A child support assessment has been in place in relation to the care of the children since June 2012, collectable by the Department of Human Services (“Child Support Agency”) since 23 August 2013.

3. There are court orders in relation to the care of the children dated 18 April 2017.

4. Since 20 December 2013, the care of the children had been recorded as 81% to [Ms A] and 19% to Mr Teller.

5. On 13 December 2017, [Ms A] contacted the Child Support Agency and stated that the care of the children had changed.  She stated that in the period from 16 September 2017 to 13 December 2017 Mr Teller had had only eight nights of care and she anticipated that in the 12 month period beginning 16 September 2017 Mr Teller would have 36 nights of care.

6. The Child Support Agency did not discuss the asserted change of care with Mr Teller.

7. On 6 January 2018, the Child Support Agency decided that in the care period beginning 16 September 2017 (effective from 13 December 2017) Mr Teller’s care of the children was 9% and [Ms A]’s care was 91%.

8. On 8 January 2018, Mr Teller objected to that decision, stating that there are court orders regarding care and that despite some issues with care he does not consider that the care percentages have changed.

9. On 9 May 2018, an objections officer of the Child Support Agency decided to disallow Mr Teller’s objection.

10. On 20 August 2018, Mr Teller requested review by the Administrative Appeals Tribunal (“the Tribunal”) of the objections officer’s decision of 9 May 2018.

11. Mr Teller attended the hearing by way of a telephone conference and gave sworn evidence.  The Tribunal permitted Mr Teller’s partner to be present for support at the hearing but not to participate in the hearing.  [Ms A] was invited to participate in the hearing but she declined.

12. Prior to the hearing, Mr Teller provided a written submission and this has been marked Exhibit A1-A2.

13. The Tribunal acknowledges that new care percentages of care of 20% to Mr Teller and 80% care to [Ms A] were made on 31 March 2018 (effective from 21 September 2018 for child support purposes).

ISSUES

1. The issues for the Tribunal to determine are:

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

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

CONSIDERATION

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

2. Amendments to the Assessment Act and the Registration and Collection Act were made effective from 23 May 2018 and 1 July 2018 respectively but this matter predates those amendments and the legislation as it was prior to those dates applies.

3. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. 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. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

4. 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).

5. In this case there are quite recent court orders regarding the care of the children operative from 18 April 2017.  The orders state that the children live with the mother and spend time with the father as follows:

   ·Each short school holidays commencing on the first day after the conclusion of the school term and concluding on the last Saturday before the commencement of the school term;

   ·In odd years, for each long school holidays commencing on the first day after the conclusion of school year and concluding on the last Saturday before the commencement of the school year;

   ·In even years, from 27 December until the last Saturday before the commencement of the school year; and

   ·At such other times as agreed.

6. The Tribunal is satisfied that in an odd calendar year, the court orders would result in a care percentage of approximately 23% to Mr Teller: (19 nights in January; 14 nights for each of the three short holidays (April, July and October); and 23 nights in December = 84 nights in total = 23%).  In an even calendar year,  the Tribunal is satisfied that the court orders would result in a care percentage of approximately 18% to Mr Teller: (19 nights in January; 14 nights for each of the three short holidays (April, July and October); and 5 nights in December (from 27-31 Dec) = 66 nights = 18%.  The Tribunal also finds that the average percentage of care (spread over two calendar years) would be 75 nights = 20%. 

7. The Tribunal acknowledges that there may be slight variations on the care percentages depending on small changes to the school holiday periods from year to year.  

8. When [Ms A] contacted the Child Support Agency on 13 December 2017 the notes of the discussion — as recorded by the Child Support Agency — state that she asserted that there had been no firm pattern of care since 16 September 2017 and that the children had had only been in the overnight care of Mr Teller for eight nights since 16 September 2017.

Mr Teller’s evidence and contentions

1. At the hearing Mr Teller stated that the reference to eight nights did not tell the whole story.  He agreed that in the September/October short school holidays that he did not have care of the children.  He explained that in that period he had temporarily separated from his partner and did not have suitable accommodation for the children.  However, he stated that he had overnight care of the children for a week in September (prior to the school holidays) and he also had approximately a week of overnight care in November 2017 to make up for the time that he was unable to have care in the September/October holidays.  In addition, Mr Teller stated that he paid for vacation care for the children in the September/October school holidays.

2. Mr Teller agreed that being an odd year in 2017, he should, according to the court orders, have had the care of the children from the Saturday after term four finished (9 December 2017) until the last Saturday before school returned in January 2018.  However, he was unable to care for the children until approximately 20 December 2017 because in the period from the end of term four until 20 December 2017 he had, as a result of starting a new employment position, work commitments and compulsory training which he could not avoid.   Mr Teller stated that as soon as he could, that being on 20 December 2017, he was caring for the children.  He stated that this continued for five nights until Christmas Day when he returned the children to [Ms A] so that she could spend Christmas Day with them.  Mr Teller stated that he returned home interstate on 27 December 2017 and he asked [Ms A] if the children could spend the holiday period in January with him commencing from 2 January 2018 but [Ms A] refused his request.  He stated that he was willing and wanted to have the care of the children throughout January in accordance with the court orders but that [Ms A] would not facilitate it.  He stated that he contacted his lawyer about the refusal but was advised that it appeared to be a “one off” refusal and that it probably was not advisable to pursue legal action.

3. In summary therefore Mr Teller conceded that he had not had the care of the children in the period between 9–19 December 2017 in accordance with the court orders but he contended that he had made up the time when he was unable to have care in the September/October holidays and he was willing and ready to have the care of the children in January as per the court orders but that [Ms A] would not permit it.  He disagreed that from 16 September 2017 he would only have 36 nights of care for the next 12 months.

The Tribunal’s consideration

1. In this case there are court orders which prescribe the care arrangements but the Tribunal finds that at the time when [Ms A] asserted there was a change in care (16 September 2017) up to the date she contacted the Child Support Agency on 13 December 2017, the court orders were not strictly being followed (Mr Teller not having care during the September/October school holidays nor in the period from 9 December 2017 to 19 December 2017).  Mr Teller conceded that it was due to his accommodation difficulties that he did not have care in the September/October school holidays and that it was due to his work commitments that he did not have care from 9 December 2017 (until he had care for five days from 20 December 2017).  Hence, the Tribunal finds that there are no grounds for an interim care determination relating to those periods because it could not be said that Mr Teller was taking “reasonable action” (such as legal action) to ensure compliance with the court orders or to make a new written care arrangement.

2. The Tribunal is therefore required to consider the actual care during a care period. The Assessment Act provides that the care percentage must be determined for a ‘care period’ which is effectively defined as ‘…such period…as the Registrar considers to be appropriate having regard to all of the circumstances’. Usually (but not necessarily) the care period will be a 12 month period starting from the date the care of the children changed and reflecting the actual care that a person has, or is likely to have, during the care period.

3. It appears that [Ms A] considered that there was a change of care on 16 September 2017.  This was the start of the September/October school holidays.  She stated that there was “no firm pattern of care” and it is understandable that she came to that view because the court orders prescribed that Mr Teller was to have care of the children for all of the September/October holidays. However, Mr Teller did have care of the children for approximately a week from 8 September 2017 (the Child Support Agency papers record that Mr Teller stated the care was from 8 September to 13 September 2017 (six nights). Hence, the Tribunal finds that 8 September 2017 is an appropriate start of a 12-month care period because the Tribunal is satisfied that although the children were not in Mr Teller’s care in the September/October school holidays commencing 16 September 2017 there was a variation to the care pattern when the children were in his care from 8 to 13 September 2017 prior to the September/October school holidays. 

4. Hence, the Tribunal must form a view as to the likely pattern of care from 8 September 2017; that may or may not be informed by care prior, or after, that date.

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

6. In this case, Mr Teller and [Ms A] did not contend that nights were an unsuitable measure of the care that they were providing to their children and the evidence in the Child Support Agency papers indicates that nights have been the measure of care in relation to date.  The Tribunal finds that nights are an appropriate method of ascertaining the actual care of the children in this case.

7. The Tribunal accepts that Mr Teller was unable to have the care of the children in the September/October school holidays due to his temporary separation from his partner at that time resulting in him not having suitable accommodation for the children.

8. The Tribunal is satisfied that the children were in Mr Teller’s care from 8 September 2017 to 13 September 2017 (six nights) and that this was a substitute for the care that Mr Teller should have had – but was unable to have – in the first week of the September/October school holidays.  

9. The Tribunal is also satisfied that the children were in Mr Teller’s care from 22 November 2017 to 27 November 2017 as the Child Support Agency papers record.  These six nights were also a substitute for the care that Mr Teller should have had – but was unable to have – in the second week of the September/October school holidays.

10. It is unclear to which dates of care [Ms A] was referring when she advised the Child Support Agency on 13 December 2017 that Mr Teller had had eight nights of care in the period between 16 September 2017 and 13 December 2017 but possibly this refers to the November nights only.  She has not specified when the care occurred but the Tribunal is satisfied that Mr Teller did have care in November as this is corroborated by [Ms A]’s third party, [Ms B].  In the absence of evidence regarding the duration of the care in November, the Tribunal has conservatively determined that it was six nights.

11. The Tribunal acknowledges that when Mr Teller had the care of the children for six nights from 8 September 2017 and six nights from 22 November 2017 that Mr Teller considered these were make up nights instead of and equivalent to the nights he should have had in the September/October school holidays.

12. However, the Tribunal also can see that from [Ms A]’s perspective, the expected pattern of care was falling apart somewhat and not occurring when she was expecting it (which was in the school holidays).

13. In relation to the care in December, the court orders specify in odd years (such as 2017)  that Mr Teller has care from the first day after the end of term four (that is from 9 December 2017) until the last Saturday before the commencement of the new school year.  There is no dispute that Mr Teller did not have care in December 2017 until 20 December 2017 due to work commitments.

14. [Ms A] contacted the Child Support Agency on 13 December 2017 and at that stage Mr Teller had had no care in December 2017.  While the Tribunal accepts Mr Teller’s statements that [Ms A] knew in advance that he would not be able to have care until 20 December 2017, the Tribunal also accepts that this was not in accordance with the court orders and that it strengthened [Ms A]’s view that there was no “firm pattern of care”.

15. In relation to likely future care, the Tribunal considers that as at the date when [Ms A] contacted the Child Support Agency on 13 December 2017 she was uncertain about future care.  At the date of the original decision by the Child Support Agency (6 January 2018) Mr Teller was not having any care even though the court orders stated that he was to have care through to the last Saturday in the January school holidays.  The lack of care at that point in time (on 6 January 2018) was indicative of the care that Mr Teller was likely to have at least for the January school holidays. 

16. The Tribunal accepts that it was not Mr Teller’s choice that he had no care of the children in January 2018.  It accepts that [Ms A] would not agree to the children flying to Mr Teller’s home for the January holidays.  Nevertheless, as previously stated, it cannot be said that Mr Teller took action to ensure that the court orders were being complied with.

17. Hence, the Tribunal is satisfied that the likely pattern of care in the care period from 8 September 2017 to 7 September 2018 was that Mr Teller would have 45 nights of care in the 12-month care period (6 nights in September 2017; 6 nights in November 2017; 5 nights in December 2017; 14 nights in April 2018; 14 nights in July 2018). This results in a percentage of care of 12% to Mr Teller (rounded down in accordance with section 54B of the Assessment Act) and 88% to [Ms A] and the Tribunal so finds.

18. Prior to 8 September 2017 [Ms A] had a care percentage of 81% and a cost percentage of 76%. Mr Teller had a care percentage of 19% and a cost percentage of 24%.  From 8 September 2017, [Ms A] had a care percentage of 88% and a cost percentage of 100% and Mr Teller had a care percentage of 12% and a cost percentage of nil.

19. 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.

20. 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.

21. 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) are met, the Tribunal must revoke the existing determinations of percentage of care in accordance with section 54F which states:

    54FDetermination 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).

1. In this case, section 54G of the Assessment Act does not apply because [Ms A] did not notify the Child Support Agency of the change in care from 8 September 2017 until 13 December 2017. The Child Support Guide provides guidance regarding a “reasonable period” and advises that this would normally be within 28 days. Hence, section 54G does not apply.

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 8 September 2017 and that [Ms A] notified the Child Support Agency of the change on 13 December 2017. As the Child Support Agency was not notified within 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with subparagraph 54F(2)(c) on 12 December 2017, being the day before the day on which the Registrar is notified of the matter.

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

4. Section 54B of the Assessment Act sets out the date of effect of the new determination 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 12 December 2017. Therefore the new determinations apply from 13 December 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. Mr Teller applied to the Tribunal for review of the objection decision of 9 May 2018 more than 28 days after he received the objection decision.  His application to the Tribunal was lodged on 20 August 2018.  This was 103 days after the objection decision of 9 May 2018, a copy of which was posted to the parents by letter on 9 May 2018.  The Tribunal is satisfied that even allowing more than a week for postage Mr Teller lodged his 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 Mr Teller’s case, this means that the varied decision of 12% care to him and 88% to [Ms A] takes effect from 20 August 2018 (unless subsection 95N(2) applies).

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

4. The Tribunal asked Mr Teller whether there were any special circumstances which prevented him from applying for review within 28 days of being notified of the objection decision.  Mr Teller stated that he was unaware of the Tribunal and that he could ask for review.  He thought that the decision of the Child Support Agency was final until he was informed that he could ask for a review from the Tribunal.  Mr Teller stated that he probably did receive the letter dated 9 May 2018 but he did not understand the implications of it and did not realise that if he disagreed with the decision he could ask the Tribunal to review it.

5. The Tribunal acknowledges as Mr Teller explained, that he finds it difficult to understand some of the letters he receives. The Tribunal found Mr Teller to be very genuine and credible and it has no hesitation in accepting that he did not fully understand the implications of lodging an application more than 28 days after receiving notice of the objection decision.   However, Mr Teller did not promptly seek advice to ensure that he was fully aware of his options.  On balance, the Tribunal does not consider that the circumstances were special to the extent that they prevented Mr Teller from lodging his application for review within 28 days of notification of the decision of 9 May 2018. 

6. Consequently, the Tribunal concludes that the new decision of 88% care to [Ms A] and 12% to Mr Teller takes effect from 20 August 2018.

7. As the Tribunal’s decision of 12% care to Mr Teller results in a cost percentage of nil, the effect is the same as the decision of the objections officer.

DECISION

1. The Tribunal varies the decision under review such that the care percentages in relation to the children are 88% to [Ms A] and 12% to Mr Teller from 8 September 2017 (with a date of effect for child support purposes of 13 December 2017).

2. The date of effect of the Tribunal’s decision is the date of lodgement of Mr Teller’s application for review; that is from 20 August 2018.