Thurston and Maidment (Child support)

Thurston and Maidment (Child support) [2022] AATA 5046 (28 November 2022)

DIVISION: Social Services & Child Support Division

REVIEW NUMBERS: 2022/MC024394

2022/MC024439

APPLICANT: Mr Thurston

OTHER PARTIES: Ms Maidment

Child Support Registrar

TRIBUNAL: Ms Hamilton-Noy, Member

DECISION DATE: 28 November 2022

DECISION:

The Tribunal sets aside the decision under review and substitutes its decision that:

For the child [Child 2]:

The existing determination of care for Mr Thurston is revoked under section 54F of the Child Support (Assessment) Act 1989 from 6 February 2022 and from 7 February 2022 a new care determination is made that Mr Thurston has 50% care of [Child 2]; and

The existing determination of care for Ms Maidment is revoked under section 54F of the Child Support (Assessment) Act 1989 from 31 December 2021 and from 1 January 2022 a new care determination is made that Ms Maidment has 50% care of [Child 2].

For the child [Child 1]:

The existing determination of care for Mr Thurston is revoked under section 54H of the Child Support (Assessment) Act 1989 from 31 December 2021 and from 1 January 2022 a new care determination is made that Mr Thurston has 14% care of [Child 1]; and

The existing determination of care for Ms Maidment is revoked under section 54H of the Child Support (Assessment) Act 1989 from 6 February 2022 and from 7 February 2022 a new care determination is made that Ms Maidment has 86% care of [Child 1].

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 – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist – decision under review affirmed

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

This application relates to a decision by the Child Support Agency (the Agency) relating to the particulars of the assessment, being the care percentage maintained by the Agency for the children [Child 1] and [Child 2].
Mr Thurston and Ms Maidment are the separated parents of [Child 1] and [Child 2]. This matter relates to contact made by Ms Maidment with the Agency in February 2022 about a claimed change to care arrangements.
Following this contact, on 13 April 2022 an employee of the Agency made a decision to revoke the existing determination of care and to make a new care determination that Mr Thurston provided 63% care to [Child 1] and Ms Maidment provided 37% care to [Child 1] from 1 September 2021; and that Mr Thurston provided 79% care to [Child 2] and Ms Maidment provided 21% care to [Child 2] from 1 September 2021.
Ms Maidment objected to this decision on 12 May 2022.
On 27 July 2022, an objections officer of the Agency allowed the objection and made a decision to refuse to revoke the existing care determination from 1 January 2022. The objections officer found that there were special circumstances which led to Ms Maidment objecting to the decision outside of 28 days and that the care percentages were to apply in the child support assessment from the date the decision was made.
On 4 August 2022 and 11 August 2022, Mr Thurston made applications to the Administrative Appeals Tribunal for an independent review of the Agency’s decision.
The Tribunal hearing was held on 3 November 2022, on which date both parties spoke to the Tribunal by MS Teams audio and gave evidence on affirmation. At the hearing, the Tribunal had before it documents provided by the Agency (folios 1 to 314), documents provided by Mr Thurston (A1 to A3) and documents provided by Ms Maidment (B1 to B3). Copies of the documents had been provided to the parties prior to the hearing and they confirmed receipt of the documents with the Tribunal.
Following the hearing, the Tribunal deferred to allow both parties to provide further evidence to the Tribunal. During the deferral period, the Tribunal received further documents from Ms Maidment (B4 to B22), which were exchanged between the parties and Mr Thurston was given time for comment. Mr Thurston provided further information (A4 to A26), which was sent to Ms Maidment for her information only as it did not raise new information for the Tribunal.
The Tribunal proceeded to make a decision on all of the information before it on 28 November 2022.

CONSIDERATION

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).
The Tribunal notes that, at the time it had a hearing with the parties, the administrative assessment of child support in place for the purposes of this decision was a decision made by this Tribunal (differently constituted) on 28 April 2022 that Mr Thurston had 30% care of the children and Ms Maidment had 70% care of the children from 11 April 2021 onwards. At the time of the hearing, there was an appeal pending within the Tribunal’s General & Other Divisions in relation to this decision. Documents provided by Mr Thurston following the hearing indicate that the General & Other Divisions of the Tribunal (also differently constituted) made a decision relating to the period 17 December 2020 to 11 April 2021 and that, if the decision related to other periods, this information had been removed from the decision by the applicant prior to providing this to the Tribunal. The Tribunal has proceeded in this decision on the basis that the administrative assessment of child support before it, which it is required to consider revoking, provided for Mr Thurston to have 30% care of the children and Ms Maidment to have 70% care of the children from 11 April 2021.

The legislative framework

Sections 54F, 54G and 54H of the Assessment Act all provide for the revocation of an existing determination of care in specified circumstances.
Subsection 54F(1) provides that the Registrar (or the Tribunal, standing in the shoes of the Registrar) must revoke a determination of a responsible person’s percentage of care in the following circumstances:
(a) the Registrar or 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
(b) 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
(c) section 54G does not apply; and

(d) subsection (2) applies in relation to the individual.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

Where the requirements set out in subsection 54F(1) of the Assessment Act are met, subsection 54F(3) then sets out the date of effect of any revocation of care. Subsection 54F(3) states that:
(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.

In circumstances where the Tribunal is required to make a new care determination, this is required to be made under section 49 of the Assessment Act where there is no pattern of care of a child or under section 50 of the Assessment Act where there is a pattern of care of a child. Both sections 49 and 50 of the Assessment Act require the Tribunal to consider the care that a parent or non-parent carer has had, or is likely to have, during a care period. The Child Support Guide at 2.2.1 states that a care period is generally a 12-month period from the day on which the care began or changed, but can be a shorter or longer period in the specific circumstances of some cases. While the Tribunal is not bound by the Guide, it considered that this commentary provides useful guidance in the period of time to be considered by the Tribunal in this matter.
Where section 54F of the Assessment Act does not apply, the Tribunal will go on to consider whether section 54G applies. Subsection 54G(1) of the Assessment Act provides that:
(1) If:
(a) a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and
(b) the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c) a determination of the other responsible person's percentage of care for the child has been made under section 50; and
(d) the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;
the Registrar must revoke both determinations.
Where section 54F and 54G of the Assessment Act both do not apply, the Tribunal will then consider whether section 54H of the Assessment Act applies. Subsection 54H(1) of the Assessment Act provides for revocation of an existing determination of care in the following circumstances:
(1) The Registrar may revoke a determination of a responsible person's percentage of care (the existing percentage ofcare) for a child made under section 49 or 50 if:
(a) the Registrar or 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
(b) the Registrar is satisfied that, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person's percentage of care for the child, the other percentage would not be the same as the person's existing percentage of care for the child; and
(c) sections 54F, 54FA and 54G do not apply; and
(d) subsection (2) applies in relation to the individual.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
Where the requirements for revocation of an existing care determination are met under subsection 54H(1), subsection 54H(3) of the Assessment Act provides the date of effect of a new care determination:
(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.

Do the provisions in section 54F of the Assessment Act apply?

The Tribunal accepts from the Agency documents that the basis for the decision before this Tribunal is Ms Maidment’s contact with the Agency on 7 February 2022, in which she advised the Agency that she had had 72% care of the children from 1 January 2022. The Tribunal accepts that, in a subsequent contact with the Agency on 9 February 2022, Ms Maidment advised the Agency that she had had 79% care of [Child 2] and 86% care of [Child 1] from 1 January 2022. The Tribunal further accepts that, in subsequent contact with the Agency on 10 March 2022, Ms Maidment advised the Agency that there was no set pattern of care, that the children were with her the majority of the time and that they went to Mr Thurston’s house on random occasions. The Tribunal finds that, while these discussions occurred over three separate dates, they are effectively one notification by Ms Maidment about the changes to care arrangements commencing on 1 January 2022. The Tribunal finds that, as of 7 February 2022, the Agency became aware that the care of the two children that was taking place did not correspond with the care percentages being maintained for the children by the Agency, pursuant to paragraph 54F(1)(a) of the Assessment Act.
As to whether another care percentage should be accepted by the Tribunal that would change the cost percentages for the children, the Tribunal notes that the evidence given by each of the parents was internally inconsistent and was difficult for the Tribunal to interpret and make clear findings on. The Tribunal noted during the hearing that it was concerned with the care arrangements for both children from 1 January 2022 onwards, given a differently constituted Tribunal had looked at an earlier period and given the notification that was made to the Agency by Ms Maidment related to 1 January 2022 onwards. The Tribunal did not therefore consider evidence provided by the parties relating to any period prior to 1 January 2022.
Regarding the care of [Child 1], Mr Thurston gave evidence to the Tribunal during the hearing that [Child 1] had spent the majority of time with Ms Maidment, he estimated some 85 to 90% of the time. Ms Maidment gave evidence consistent with this at the Tribunal hearing, that [Child 1] had been attending TAFE near her home and was therefore rarely at Mr Thurston’s home. She agreed with Mr Thurston’s estimate of the care she had been providing to [Child 1].
Mr Thurston’s oral evidence to the Tribunal at the hearing was inconsistent with the care calendar he had provided to the Agency, indicating a much higher level of care had been provided to [Child 1] than what he had given evidence to the Tribunal of at the hearing. For this reason, the Tribunal did not find Mr Thurston’s care calendar to be a reliable reflection of the care that had been taking place for [Child 1] from 1 January 2022 onwards. Ms Maidment’s oral evidence to the Tribunal at the hearing was also inconsistent with her initial discussion with the Agency in which she estimated she had had 72% care of [Child 1], although was broadly consistent with her later contact with the Agency that she was having 86% care of [Child 1].
The Tribunal finds that there has been no pattern of care of [Child 1] from 1 January 2022 onwards. The Tribunal finds that the best evidence before it as to the care arrangements for [Child 1] is the broadly consistent evidence of Mr Thurston and Ms Maidment at the hearing and Ms Maidment’s conversation with the Agency that, on reflection, she believed she was having 86% care of [Child 1]. The Tribunal finds that the best evidence before it that the past and anticipated care of [Child 1] for the care period 1 January 2022 to 31 December 2022 is that Ms Maidment will provide 86% care to [Child 1] in this period.
Regarding the care of [Child 2], there was even less consistency in the evidence before the Tribunal. Mr Thurston gave evidence to the Tribunal at the hearing that [Child 2] has been with him on a full-time basis aside from 24 days in June to July 2022 when the parents agree the two children were overseas with Ms Maidment. Ms Maidment gave evidence that before June 2022 [Child 2] was with her during the week and with Mr Thurston on weekends and that since returning from overseas in July 2022, [Child 2] has been spending more time with her father.
Neither party was able to give clear and compelling evidence of the care arrangements for [Child 2] at the hearing. For the reasons set out above, the Tribunal has not found the care calendar provided by Mr Thurston to be reliable. Ms Maidment provided evidence to the Tribunal that she had been involved in extensive discussion with [Child 2]’s school and the Tribunal considered this broadly corroborated (in the absence of any more compelling evidence) that [Child 2] was with Ms Maidment during the week in the first half of the year. The Tribunal accepts that both children were overseas with Ms Maidment for 24 nights from June to July 2022 and is prepared to accept Ms Maidment’s evidence that [Child 2] has had increased time with Mr Thurston since returning from overseas. While not accepting Mr Thurston’s evidence that [Child 2] has been with him on a full-time basis, the Tribunal is prepared to accept that, since July 2022, Mr Thurston has had more care of [Child 2] than Ms Maidment has had.
The Tribunal finds that, given Ms Maidment had the majority of care of [Child 2] up to June, took both children overseas on a trip that does not form a broader pattern of care, and that Mr Thurston has had the majority of care of [Child 2] since early July 2022, it is most appropriate for the Tribunal to find that the parents have had equal care of [Child 2] during the care period 1 January 2022 to 31 December 2022. While not entirely satisfactory, the Tribunal finds that this is the best reflection of the broad pattern of care provided to [Child 2] over the 2022 calendar year.
If the Tribunal were to make a new determination of care for [Child 1], Mr Thurston’s cost percentage would remain at 24% and Ms Maidment’s cost percentage would remain at 76%. The existing determination of care for [Child 1] is unable to be revoked under section 54F of the Assessment Act. If the Tribunal were to make a new determination of care for [Child 2], Mr Thurston’s cost percentage would change from 24% to 50% and Ms Maidment’s cost percentage would change from 76% to 50% (see: section 55C of the Assessment Act). Paragraph 54F(1)(b) is met with respect to [Child 2].
The Tribunal must next consider whether section 54G applies. The Tribunal is satisfied that it does not, on the basis that it is not satisfied that either parent had less than regular care of [Child 2]. Section 54G does not apply and paragraph 54F(1)(c) is therefore met.
As to whether subsection 54F(2) applies, the Tribunal finds that it does on the basis that section 51 did not apply (see paragraph 54F(2)(a) of the Assessment Act: there was no interim period). Paragraph 54F(1)(d) is therefore also met.
The requirements in subsection 54F(1) are established in this case with respect to the child [Child 2] and therefore the Tribunal must revoke the existing determination of care and make another determination under section 49 or 50 with respect to [Child 2]. The Tribunal finds that a new determination of care is able to be made under section 49 of the Assessment Act that each parent has had 50% care of [Child 2] since 1 January 2022.
Subsection 54F(3) of the Assessment Act provides for the dates of effect of a revocation of care and the date from which a new care determination takes effect. The Tribunal finds that notification of the care arrangements did not occur within 28 days of the change of care. Paragraph 54F(3)(b) provides that, in these circumstances, the existing determination of care for Mr Thurston is revoked from 6 February 2022 and from 7 February 2022 a new care determination is made that Mr Thurston has had 50% care of [Child 2]; and the existing determination of care for Ms Maidment is revoked from 31 December 2021 and from 1 January 2022 a new care determination is made that Ms Maidment has 50% care of [Child 2].

Does section 54G of the Assessment Act apply with respect to the child [Child 1]?

As the existing determination of care cannot be revoked under section 54F of the Assessment Act for [Child 1], the Tribunal then considered section 54G of the Assessment Act.
“Regular care” is defined at subsection 5(2) of the Assessment Act to be at least 14% care but less than 35% care. The Tribunal finds that section 54G of the Assessment Act does not apply in relation to [Child 1]’s care, on the basis that Mr Thurston did not have less than regular care of [Child 1] under the new arrangements. The existing determination of care is unable to be revoked under section 54G of the Assessment Act in respect of [Child 1].

Does section 54H of the Assessment Act apply with respect to the child [Child 1]?

Finally, the Tribunal considered whether the existing determination of care for [Child 1] is able to be revoked under section 54H of the Assessment Act.
For the same reasons as those set out above, the Tribunal finds that the Registrar became aware that the care of [Child 1] that was taking place did not correspond with the existing percentages of care on 7 February 2022. The Tribunal is satisfied that if a new care percentage were to be determined, Mr Thurston’s care percentage would change from 30% to 14% and Ms Maidment’s would change from 70% to 86% care. The Tribunal is satisfied that section 54G does not apply and that subsection 54H(2) applies, on the basis that there was no interim period. The requirements for revocation under subsection 54H(1) of the Assessment Act are met in relation to [Child 1].
Subsection 54H(1) states that a determination of care “may” be revoked in these circumstances. The Tribunal considers it is appropriate to revoke the existing determination of care to reflect the care that has been, and is anticipated to, take place in the care period commencing from 1 January 2022.
Subsection 54H(3) then provides that the existing determination of care for Mr Thurston is revoked from 31 December 2021 and from 1 January 2022 a new care determination is made that Mr Thurston has 14% care of [Child 1], and the existing determination of care for Ms Maidment is revoked from 6 February 2022 and from 7 February 2022 a new care determination is made that Ms Maidment has 86% care of [Child 1].

What is the effect of section 87AA of the Registration and Collection Act?

The Tribunal has a second decision before it, made under section 87AA of the Registration and Collection Act. This provision provides as follows:
(1) If:
(a) a person lodges, under section 80A, an objection to a care percentage decision; and
(b) the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and
(c) the Registrar decides (the review decision ), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;
the date of effect of the review decision is the day on which the person lodged the objection.
(2) If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:
(a) in a case where the person is a resident of a reciprocating jurisdiction--the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or

(b) otherwise--the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

This provision is relevant where the original decision in this matter was made on 13 April 2022 and Ms Maidment lodged an objection to the decision on 12 May 2022, outside of the 28-day time limit. The Tribunal must consider whether there are special circumstances that prevented Ms Maidment from lodging an objection earlier.
The Tribunal has had regard to the findings of the Agency, which were not disputed during the hearing, that Ms Maidment had contacted the Agency on numerous occasions after the original decision was issued and had lodged a formal objection to the decision one day late. Mr Thurston did not seek to comment on this aspect of the Agency’s decision during the Tribunal hearing, stating that he had no comment and that he had also been out of time with the Agency.
The Tribunal accepts the Agency’s findings, which were not disputed by either parent, that there are special circumstances in this case which prevented Ms Maidment from lodging an objection earlier. The reference to the 28 day time limit is therefore treated as a longer period and Ms Maidment is treated as having objected within time to the original decision. The date of effect of the Tribunal’s decision is as set out above in the Tribunal’s findings.

DECISION

The Tribunal sets aside the decision under review and substitutes its decision that:

For the child [Child 2]:

For the child [Child 1]:

[2022] AATA 5046

28 November 2022

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction