Timberlake and Timberlake (Child support)

[2020] AATA 5835

Timberlake and Timberlake (Child support) [2020] AATA 5835 (11 December 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019872

APPLICANT:  Ms Timberlake

OTHER PARTIES:  Child Support Registrar

Mr Timberlake

TRIBUNAL:Member R Anderson

DECISION DATE:  11 December 2020

DECISION:

The tribunal decided to set aside the decision under review and substitute its decision that:

(a)from 16 February 2019, Mr Timberlake is attributed with a percentage of care in respect of [Child 1] and [Child 2] of 58% and Ms Timberlake is attributed with a percentage of care in respect of [Child 1] and [Child 2] of 42% and

(b)the tribunal refuses to exercise its discretion under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 to extend the period in which Ms Timberlake could lodge her application to the AAT beyond 28 days. Consequently, the date of effect of the tribunal’s decision in (a) above is 16 September 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether the change was sufficient to affect the cost percentages for the parents – notification within 28 days – 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 not exist – prejudice to other party – not appropriate to exercise discretion – 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 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 Timberlake and Ms Timberlake are the parents of [Child 1] and [Child 2].  Despite separating in January 2018, an application to register a  child support assessment was not lodged with the Department of Human Services – Child Support, now known as Services Australia – Child Support (the Agency) by Mr Timberlake until 4 October 2018.   The parents have had a private collection arrangement in place from the outset. On 4 February 2019, the Agency decided to accept the application, effective 4 October 2018.  The registered care percentages in respect of the children were 71% to Mr Timberlake and 29% to Ms Timberlake. This was loosely based on a handwritten agreement arrived at through mediation, signed by both parties on 4 October 2018, whereby Ms Timberlake was to have overnight care of the children for two nights per week with an additional night every third week.

2. Agency records indicate that Ms Timberlake contacted the Agency on 8 February 2019 to advise that she will now be having care of the children for three nights per week on a regular basis.  Mr Timberlake disputed the application and subsequently on 14 November 2019, an officer of the Agency decided to reject Ms Timberlake’s application.  This meant that the registered care of [Child 1] and [Child 2] remained at 71% attributed to Mr Timberlake and 29% attributed to Ms Timberlake.

3. Ms Timberlake lodged an objection on 15 November 2019. An objections officer decided to disallow Ms Timberlake’s objection to the decision of 14 November 2019 on the basis of insufficient evidence to justify a change to the registered care of the children. 

4. On 16 September 2020, Ms Timberlake lodged an application with the Administrative Appeals Tribunal (AAT) for an independent review of the objections officer’s decision.  The matter was heard on 1 December 2020.  The tribunal received evidence on affirmation from Mr Timberlake and Ms Timberlake, who both participated by conference telephone.  In considering this matter the tribunal took into account the oral evidence of Mr Timberlake and Ms Timberlake given at the hearing, documents provided by the Agency in accordance with the Administrative Appeals Tribunal Act 1975 (the AAT Act) numbered 1 to 132 and additional information provided to the tribunal by Mr Timberlake, numbered B1 to B14. Further relevant information that had been provided to the Department of Human Services- Centrelink (Centrelink) by Ms Timberlake in error and accessed by the tribunal, numbered T1 to T67 was also provided to all parties. Both parties confirmed receipt of the above documents.

5. On 1 December 2020, the tribunal decided to defer making a decision to give Ms Timberlake the opportunity to provide medical evidence to the tribunal.  Additional evidence was received on 10 December 2020, numbered A1 to A2 and was sent to all parties for their information.  The tribunal then proceeded to make a decision.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The issues which arise in this case are as follows:

   ·Should the existing determination of percentages of care be revoked?  If so, from when should they be revoked?

   ·Should a new determination of percentages of care be attributed to Mr Timberlake and Ms Timberlake in respect of [Child 1] and [Child 2]?

   ·If there is a change in the percentages of care attributed to the parents, from what date should the administrative assessment be amended to reflect the changes?

CONSIDERATION

1. The provisions in Division 4 of Part 5 of the Act require the Agency (and the tribunal on review) to determine whether the existing care determinations are correct, whether they can be revoked and if so, what new care percentage decisions can be made. The decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determinations and make new ones.

2. The primary decision-maker’s essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). The tribunal’s task on review is to stand in the shoes of the original decision-maker.  In this respect, on review, there is a clear “temporal element” in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Agency. 

3. The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care. The care period is such period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Ms Timberlake acknowledged that her contact with the Agency on 8 February 2019 was based on her expectation of an imminent change in care. In this case, there is no dispute that the regular pattern of care in respect of the children altered from 16 February 2019. Therefore, the tribunal is satisfied that an appropriate care period is 12 months from 16 February 2019.

4. Sections 49 and 50 of the Act require a new determination of the percentage of care for a child to be made where an existing determination has been revoked. Section 51 of the Act is applicable if a care arrangement (as defined in subsection 3(1) of the A New Tax System (Family Assistance) Act 1999) is in place and has ceased being adhered to and the person with reduced care is taking reasonable action to ensure that the care arrangement is complied with. 

5. A handwritten document detailing the agreed care in October 2018 was signed and dated by both parties. In the tribunal’s view, it is a legally enforceable contract between the parties and therefore can be considered as a care arrangement for the purposes of section 51 of the Act. It is common ground that at the time of notification on 8 February 2019, overall, the pattern of care had continued to align with the mediation agreement signed on 4 October 2018. However, from 16 February 2019, it is agreed that the pattern of care in respect of [Child 1] and [Child 2] altered such that Mr Timberlake was having less than 71% care. In response to a question from the tribunal, Mr Timberlake stated that he does not recall taking any action to reinstate his care to five nights per week – it was a long time ago. Ms Timberlake gave oral evidence that Mr Timberlake refused her invitation to attend mediation and no further attempts were made by her.

6. In the absence of any evidence to suggest that Mr Timberlake took reasonable action to reinstate his care of five nights per week, the tribunal is satisfied that section 51 of the Act is not applicable in this case and finds accordingly.

Issue 1 - Should the existing determination of percentages of care be revoked?  If so, from when should they be revoked?

1. Subsection 54F(1) of the Act provides in relevant part that in circumstances where: there is no care agreement in place; the current care decision has been made under section 49 or 50 of the Act; and the Registrar (or tribunal in the shoes of the Registrar) is satisfied that the new level of care advised is more than 14% for at least one parent and results in a change to the rate of child support payable by one parent to the other due to a change in the cost percentages; then the current care decision must be revoked.

2. In relation to paragraph 54F(1)(a) of the Act, there is no dispute that there were existing determinations for Mr Timberlake and Ms Timberlake of percentages of care for [Child 1] and [Child 2], being 71% and 29% respectively, made in accordance with section 50 of the Act. There is also no dispute that on 8 February 2019, Ms Timberlake notified the Agency of a future change in the level of care provided to the children, which she later confirmed to be 16 February 2019. Furthermore, there is no dispute that the care taking place in the care period commencing 16 February 2019 did not correspond to the care registered with the Agency. Therefore, the first criterion is satisfied.

3. In relation to paragraph 54F(1)(b) of the Act, the tribunal must consider whether each person’s cost percentage would change if a new percentage of care determination were made under section 49 or 50 of the Act. Section 50 is applicable where a responsible person for the child has had, or is likely to have, a pattern of care during the care period.

17.As noted earlier in these reasons for decision, the tribunal must have regard to the actual or likely pattern of care at the point in time notified to the Agency, being 16 February 2019. Ms Timberlake’s oral evidence aligned with the records of her discussions with the Agency in that her expectation was that the ongoing pattern of care in the care period would be three nights per week.  She told the tribunal that the agreement of 4 October 2018 was an interim one and that it had always been the intention for her to return to three days of care per week when things settled down.  Consequently, in February 2019 she advised Mr Timberlake that she was in a position to resume an additional night of care of the children. In addition, Ms Timberlake had the care of [Child 2] each Wednesday during the day until prep classes commenced full-time in March. In response to a question from the tribunal, Ms Timberlake stated that there was little change during the school holidays except for when Mr Timberlake’s mother wanted to take the children camping.  She also noted a one-off change that occurred in August 2019 when she required surgery.  As discussed at hearing, such unexpected and short-term changes have no impact on the expected pattern of care at an earlier date.

18.Mr Timberlake gave oral evidence that he had no issue with Ms Timberlake having an additional night of care.  In fact, he considers that the children should spend time with their mother.  However, he told the tribunal that despite having no issue he had reservations as to whether such a plan would continue. As discussed at hearing, in the event that an expected pattern of care does not continue as planned, the obligation then lies on the parents to advise the Agency accordingly and a new care determination be recorded. 

19.As further discussed, the tribunal’s task on review is to stand in the shoes of the original decision-maker.  As such, it is not appropriate in undertaking that task to assess care based on what happened from initial notification to the Agency up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Agency.  

20.There was no dispute that at 16 February 2019 both parties were expecting that the pattern of care in respect of the children would be three nights per week to Ms Timberlake and four nights per week to Mr Timberlake, equating to 156 nights and 208 nights respectively. In accordance with the rounding rules under section 54D of the Act, the percentages of care attributable to Mr Timberlake and Ms Timberlake in respect of [Child 1] and [Child 2] are 58% and 42% respectively. The parties agreed that such a conclusion was reasonable and the tribunal so finds.

1. The next issue for the tribunal to consider is if a new care percentage is determined under section 50, whether the parents’ cost percentages change. Section 55C of the Act contains a table that is used to work out a person’s cost percentage. Under the child support assessment based on the existing percentage of care determinations at 15 February 2019, the cost percentages of Mr Timberlake and Ms Timberlake were 76% and 24% respectively. If new determinations were to be made in accordance with the tribunal’s findings above, the cost percentages of Mr Timberlake and Ms Timberlake would be 61% and 39% respectively. Accordingly, the tribunal is satisfied that, if new determinations were to be made, the cost percentages of both parties would change, thereby satisfying the second criterion under paragraph 54F(1)(b) of the Act.

2. As the parents have shared care of [Child 1] and [Child 2], the tribunal is satisfied that section 54G of the Act is not applicable in this case, thereby satisfying the third criterion under paragraph 54F(1)(c) of the Act.

3. In addition, as discussed above, section 51 of the Act is not applicable in this case. Consequently, the fourth criterion under paragraph 54F(1)(d) of the Act is also met.

4. As all of the requirements of subsection 54F(1) of the Act are met, the tribunal must revoke the existing determinations of percentages of care.

5. Subsection 54F(3) of the Act sets out when the revocation of the determination takes effect. The date of effect depends on whether the Agency was notified of the care change within 28 days after it occurred. On the evidence before it the tribunal accepts that the care change advised by Ms Timberlake took effect from 16 February 2019. There is no dispute that the Agency was advised of the imminent change some eight days earlier. As the notification was made within 28 days of the change in care occurring, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(a) of the Act, being 15 February 2019, the day before the notified change in care was to occur.

Issue 2 - Should a new determination of percentages of care be attributed to Mr Timberlake and Ms Timberlake in respect of [Child 1] and [Child 2]?

1. Having revoked the existing determinations, the tribunal must make new determinations of the percentages of care attributed to Mr Timberlake and Ms Timberlake in respect of [Child 1] and [Child 2]. As the tribunal found above that section 51 of the Act is not applicable in this case, it is section 50 which is the relevant section of the Act. Under section 50, to make a new determination the tribunal must be satisfied that an existing care determination made under section 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for the children. These matters have been discussed above and the tribunal is satisfied that the determination made under section 50 of the Act to attribute 71% care to Mr Timberlake and 29% care to Ms Timberlake should be revoked under section 54F of the Act and that during the care period, Mr Timberlake and Ms Timberlake were each likely to have a pattern of care in respect of [Child 1] and [Child 2] of 58% and 42% respectively. Accordingly, a new care determination is to be made under section 50 of the Act.

27.It is noteworthy that a new care arrangement commenced around 19 October 2019.  If the care percentages differ to those expected from 16 February 2019 as decided by this tribunal, the parents will need to apply to the Agency for a new care percentage decision to be determined.

Issue 3 - From what date should the administrative assessment be amended to reflect the change?

1. Section 54B of the Act sets out the date of effect of the new determinations of percentage of care. As Ms Timberlake’s objection was lodged within the required 28-day timeframe, 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) of the Act, the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations. That is, Mr Timberlake would be attributed with 58% care and Ms Timberlake attributed with 42% care of the children from 16 February 2019.

2. As the tribunal has decided to set aside the decision of the objections officer, the date of effect of the tribunal’s decision is subject to section 43 of the AAT Act. Subsection 43(6) of the AAT Act provides that the tribunal’s decision is taken to be a decision of the decision-maker (in this case the objections officer) and, unless otherwise ordered, has effect on and from the day on which the decision-maker’s decision has or had effect.

3. As the objections officer disallowed Ms Timberlake’s objection, there was no date of effect to be considered. Had the objections officer come to the same conclusions reached by the tribunal, as Ms Timberlake lodged her objection to the decision of 14 November 2019 within 28 days, the date of effect of the decision would be in accordance with section 54B of the Act, as discussed above.

4. However, despite subsection 43(6) of the AAT Act, subsection 95N(1) of the Registration Act provides that a review decision will take effect from the date upon which the application to the tribunal for review was made if lodged more than 28 days after the objection decision. According to Agency records, Ms Timberlake was notified in writing of the objections officer’s decision of 8 April 2020 on the same day. The notification included a letter advising that if she did not agree with the decision, she must seek a review with the AAT within 28 days. As Ms Timberlake lodged her application with this tribunal on 16 September 2020, it is clearly outside the 28-day timeframe from the date of the objections officer’s decision on 8 April 2020. Therefore, it is necessary to decide whether special circumstances existed that prevented her from applying within 28 days. If so, it is open to the tribunal to extend the period beyond 28 days to a period considered appropriate in the circumstances (subsection 95N(2) of the Registration Act).

5. The tribunal must be satisfied that the reasons causing the delay in lodgement were sufficiently “special”. The term “special circumstances” is not defined in the Act. The Guide sets out some guidance at 4.1.8. It relevantly states that the discretion to apply special circumstances would generally be considered in cases where illness or personal trauma stopped the applicant from lodging on time, there were communication difficulties or the applicant reasonably relied upon inaccurate or misleading information. Further consideration must also be given to whether the other party will be prejudiced by extending the period of time allowed to lodge a request for a review, in addition to whether or not the applicant rested on their rights.

1. In response to a question from the tribunal, Ms Timberlake stated that she understood that she had 13 weeks to seek review.  The tribunal notes that Ms Timberlake had a review underway with Centrelink which was finalised by an authorised review officer on 18 June 2020.  Her application was lodged within 13 weeks of this date. Notification of the Centrelink decision of 18 June 2020 advises that it is important to ask for a review within 13 weeks of being notified of the decision.  It was this letter that was included with Ms Timberlake’s application to the AAT for review of a child support decision.  Her confusion is evident.  The tribunal accepts that the various Agency divisions Ms Timberlake was dealing with were not identified by her as separate bodies, which was a significant contributing factor to her late application to the AAT. 

2. Ms Timberlake gave oral evidence that she suffered from Attention Deficit Hyperactivity Disorder (ADHD) and consequently found it difficult to deal with a lot of things at once which led to her putting off attending to some things.  Her housing has been and continues to be unstable.  She moved from living with her father to living with her mother and grandmother at the end of March 2020.  The onset of COVID-19 exacerbated her already difficult circumstances.  The children being home from school led to difficulties at home, resulting in her renting a cabin in a caravan park for her and the children and she has recently moved back with her mother and grandmother. 

3. A letter from psychiatrist, [Dr A], dated 1 December 2020 was received after the hearing.  [The doctor] confirmed her diagnosis of ADHD, in addition to Generalised Anxiety Disorder with subsequent depressive episodes from March 2016.  He further stated that she continues to consult with him regularly in order to optimise her treatment. 

4. The tribunal carefully considered the circumstances of Ms Timberlake. The tribunal accepts that in combination, the circumstances experienced by Ms Timberlake are out of the ordinary. The tribunal is also satisfied that in particular her medical conditions, the instability in her life and the difficulties she had in understanding the different Agency bodies and the varying review requirements prevented her from lodging an application to the tribunal within the required 28 days.  It therefore follows that special circumstances did exist that prevented her from lodging her application within 28 days from notification of the objections officer’s decision on 8 April 2020.  The tribunal finds accordingly. 

5. The tribunal is also satisfied that Ms Timberlake did not deliberately rest on her rights.  As noted above, Ms Timberlake lodged the application to the AAT in accordance with her understanding of the timeframe being 13 weeks.  The tribunal then considered the impact on Mr Timberlake in extending the timeframe for Ms Timberlake to lodge an objection. 

6. Based on the 2018/2019 tax returns of the parents, the tribunal estimates that the change in the care percentages attributed to Mr Timberlake and Ms Timberlake from 71% and 29% to 58% and 42% respectively, results in the child support assessment changing from nil child support payable by either parent to Mr Timberlake being liable for child support at the annual rate of just over $4,000 from 16 February 2019.  In the circumstances, the tribunal does not consider it appropriate to place Mr Timberlake in a position of arrears on account of Ms Timberlake’s late lodgement of her application to the tribunal. It is also noteworthy that the collection of child support is a private arrangement between the parents.

7. On balance, the tribunal finds it is not appropriate to exercise its discretion under subsection 95N(2) of the Registration Act to extend the period in which Ms Timberlake could lodge her application to the AAT beyond 28 days. Accordingly, under subsection 43(6) of the AAT Act, the decision of this tribunal will take effect on and from the day on which Ms Timberlake lodged her application with the tribunal, being 16 September 2020.

DECISION

The tribunal decided to set aside the decision under review and substitute its decision that:

(a)from 16 February 2019, Mr Timberlake is attributed with a percentage of care in respect of [Child 1] and [Child 2] of 58% and Ms Timberlake is attributed with a percentage of care in respect of [Child 1] and [Child 2] of 42% and

(b)the tribunal refuses to exercise its discretion under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 to extend the period in which Ms Timberlake could lodge her application to the AAT beyond 28 days. Consequently, the date of effect of the tribunal’s decision in (a) above is 16 September 2020.