Vences and Whobrey (Child support)

[2020] AATA 1479

Vences and Whobrey (Child support) [2020] AATA 1479 (8 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018537

APPLICANT:  Mr Vences

OTHER PARTIES:  Child Support Registrar

Ms Whobrey

TRIBUNAL:Member F Staden

DECISION DATE:  8 April 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that from 9 March 2019 Mr Vences’ care percentage for [Child 1] was 100% and that of Ms Whobrey was 0%.

The tribunal further decides to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 such that the reference to 28 days in paragraph 95N(2)(b) of the Child Support (Registration and Collection) Act 1988 is extended to 3 March 2020.

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 – date of effect – whether there were special circumstances that prevented the appeal being lodged in time – time to lodge appeal extended

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. Mr Vences and Ms Whobrey are the separated parents of [Child 1], born 2003. This review is about the care percentages used in [Child 1’s] child support assessment from 9 March 2019.

Previous care percentage decisions

1. From 12 January 2016 to 17 December 2018, under a court order, the care percentages used for [Child 1] were 22% to Mr Vences and 78% to Ms Whobrey.

2. On 21 December 2018, Mr Vences applied to the then Department of Human Services – Child Support (the Department) to have his care percentage for [Child 1] changed from 18 December 2018 in line with new court orders. Relevantly here, the court orders, dated [in] December 2018, provided that:

   ·     [Child 1] live with Mr Vences;

   ·     Ms Whobrey spend time with [Child 1] as agreed between the parties in writing and, failing agreement, from 18 December 2018 to 13 January 2019;

   ·     [Child 1] spend time with Ms Whobrey during school terms for no less than one weekend per month from after school on Friday to 3.00 pm on Sunday; and

   ·     [Child 1] spend half of all school holidays with Ms Whobrey as agreed by the parties in writing and, failing agreement, as agreed between the mother and the child.

3. On 2 February 2019, the Department wrote to Ms Whobrey, informing her that Mr Vences had stated that her level of care for [Child 1] was now 16% (62 nights) with an associated care percentage for Mr Vences of 84%.

4. On 12 February 2019, Ms Whobrey informed the Department that she was providing care for [Child 1] for 95 nights a year (two nights a fortnight plus half the school holidays), equivalent to a care percentage of 26%. A Departmental officer is recorded as explaining to Ms Whobrey that care percentages of 16% and 26% are associated with the same cost percentage and Ms Whobrey is recorded as agreeing to the care percentages lodged by Mr Vences.

5. On 12 February 2019, the Department decided to accept the care percentages lodged by Mr Vences, 84% to Mr Vences and 16% to Ms Whobrey, effective from 18 December 2018. This resulted in Ms Whobrey becoming the parent liable to pay child support.

Care percentage decision under review

1. On 15 April 2019, Mr Vences applied to the Department to have his care percentage for [Child 1] changed to 100% from 9 March 2019 on the basis that [Child 1] refused to spend time with his mother. Mr Vences stated that Ms Whobrey had provided only eight nights of care over the previous five months. On 27 April 2019, Ms Whobrey confirmed the care change with the Department but stated that Mr Vences was withholding care.

2. On 27 April 2019, the Department accepted the change advised by Mr Vences. As he notified the Department more than 28 days after the care change, his new care percentage was applied from 15 April 2019. Ms Whobrey’s new care percentage of 0% was applied from 9 March 2019.

3. On 8 May 2019, Ms Whobrey lodged an objection to the 27 April 2019 decision to attribute 100% of [Child 1’s] care to Mr Vences from 9 March 2019.

4. On 18 June 2019, an objections officer partly allowed Ms Whobrey’s objection, setting aside the 27 April 2019 decision and making an interim care determination whereby the levels of care in place from 21 December 2018 (84% to Mr Vences and 16% to Ms Whobrey) remained in place for a maximum period of up to 20 December 2019.

Subsequent care percentage decisions

1. On 30 April 2019 and 2 May 2019, Ms Whobrey informed the Department that from 30 April 2019 she had 66 nights of care of [Child 1] under new court orders, dated [in] April 2019. The court orders allocated Ms Whobrey care of [Child 1] one weekend a month of two nights and half the school holidays.

2. On 4 May 2019, Mr Vences agreed that Ms Whobrey did have care of [Child 1] under the court orders but stated that [Child 1] refused to stay with Ms Whobrey.

3. On 8 May 2019, Ms Whobrey advised that Department that the care arrangements in the [April] 2019 court orders had not commenced but the arrangements were essentially the same as in the previous court orders.

4. On 8 May 2019, the Department rejected Ms Whobrey’s request for a new care determination.

5. On 11 May 2019, Ms Whobrey advised that Department of the care arrangements in new [April] 2019 court orders and on 14 May 2019 stated that care was not occurring in line with the new court orders because Mr Vences was stopping it.

6. A 14 June 2019 Departmental record states that “Multiple notifications have been lodged on line for care change from 30 April 2019 however a decision was made on 08/05/19 to reject the care as she advised that the care would not take effect until 10/5 – need to advise that multiple notification for doe 30/04/2019 will be deleted. She advised she has not had any overnight care however she will keep the agency updated and will send through any additional correspondence.”

7. On 6 July 2019, the Department decided in relation to Ms Whobrey’s 11 May 2019 notification that the [April] 2019 court orders constituted a new written care arrangement for [Child 1] and that the criteria for an interim care determination were met for the period 10 May 2019 to 27 April 2020.

8. [In] January 2020, final court orders were made in relation to [Child 1’s] care. Relevantly here, those orders state that Ms Whobrey is to spend time with [Child 1] on dates to be agreed between the parties and [Child 1].

Review

1. On 3 March 2020, Mr Vences applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the 18 June 2019 objections officer’s decision. 

2. A hearing was held on 8 April 2020. Mr Vences and Ms Whobrey gave sworn evidence by telephone. The tribunal had before it documents provided by the Department (468 pages), a copy of which was sent to the parties before the hearing.

3. Relevant evidence before the tribunal is referred to in the consideration below.

ISSUES

1. The statutory provisions most 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 also had regard to the Child Support Guide, the Department’s online technical and policy guide to the administration of the child support scheme.

2. The Department, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula includes a care percentage and an associated cost percentage for each parent in relation to each child. The Department decides each parent’s care percentage in line with sections 49 to 54L of the Assessment Act. These provisions require the Department to decide each parent’s care percentage when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

3. Sections 49 and 50 of the Assessment Act require the Department, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless the Department or the Department of Human Services – Centrelink are otherwise advised.

4. The issues which arise in this case are:

   ·    Should the existing care percentages be revoked; and if so

   ·    Should new care percentage determinations be made and, if so, from when; and

   ·    What is the date of effect of this decision?

CONSIDERATION

Issue 1: Should the existing care percentages be revoked?

Context

1. This matter has a complex history as outlined above. Here the tribunal is focused on whether the care percentages as at 9 March 2019 should be revoked.

2. The parties agree that by 9 March 2019 Ms Whobrey’s percentage of care for [Child 1] had fallen below 14% (52 nights) because he refused to stay with her. They disagree on the reasons for this. Mr Vences argued that [Child 1] did not want to stay with Ms Whobrey because she questioned his capacity to decide to live with Mr Vences. Ms Whobrey argued that Mr Vences was withholding care of [Child 1], essentially by emotional manipulating [Child 1]. Mr Vences denied this, stating that he encourages [Child 1] to visit Ms Whobrey.

3. Ms Whobrey’s argument about withheld care rests on the care pattern set out in the [December] 2018 court orders not being followed. However, examination of those court orders shows that after the period 18 December 2018 to 13 January 2019, [Child 1] was only required to spend time with Ms Whobrey for no less than one two-night weekend a month in school terms, with any further care in the school holidays dependent on negotiation with Mr Vences and, failing that, with [Child 1]. This is equivalent to at most 24 nights a year or a care percentage of 6% once [Child 1] refused to visit Ms Whobrey in the school holidays.

4. Thus at 18 December 2018 the likely pattern of care for [Child 1], under the [December] 2018 court orders, was 84% to Mr Vences and 16% to Ms Whobrey. By 9 March 2019, that likely pattern of care, under the same court orders, was a maximum of 6% (24 nights) to Ms Whobrey and therefore a minimum of 94% to Mr Vences.

5. As there is no cost percentage difference between 6% and 0% care percentages for the purposes of the child support assessment, the tribunal found that the change of care notified by Mr Vences on 15 April 2019 and agreed to by Ms Whobrey (Mr Vences – 100% and Ms Whobrey 0%) was in line with the then current [December] 2018 court orders. There was therefore no basis for an interim care determination under section 51 of the Assessment Act.

Conclusion

1. Subsection 54F(1) of the Assessment Act sets out the circumstances in which a determination of care percentage must be revoked if there is a change to cost percentages. The tribunal is satisfied that those circumstances exist in this case:

   · There are existing care percentages, 84% to Mr Vences and 16% to Ms Whobrey, in this case which were determined under section 50 of the Assessment Act;

   ·     Mr Vences informed the Department on 15 April 2019, that [Child 1’s] actual care did not correspond to the existing care percentage determinations.

   ·     If the care percentages for [Child 1] are changed in line with the likely pattern of care from 9 March 2019 finding above, each parent’s cost percentage will change, Mr Vences from 76% to 100% and Ms Whobrey from 24% to 0%.

   · The tribunal found above that the notified care change was allowable under the then current [December] 2018 court orders. Thus section 51 of the Assessment Act is not engaged.

   · The tribunal was satisfied that section 54G of the Assessment Act does not apply here.

2. As the requirements for revocation in subsection 54F(1) of the Assessment Act were met, the tribunal revoked the existing care percentage determinations for Mr Vences and Ms Whobrey.

3. Subsection 54F(3) of the Assessment Act sets out when the revocation of the determination takes effect. The date of effect depends on whether the Department was notified of the care change within 28 days of when it occurred.

4. Mr Vences informed the Department of the change to [Child 1’s] care on 15 April 2019, more than 28 days after the 9 March 2019 change took place. As the notification was more than 28 days after the change occurred, under paragraph 54F(3)(b) the date of revocation for Mr Vences, the person with increased care, is 14 April 2019, the day before notification day and the date of revocation for Ms Whobrey, the person with decreased care is 8 March 2019, the day before the change of care day.

Issue 2: Should new care percentage determinations be made and, if so, from when?

1. If a person’s existing care percentage determination for a child is revoked, there is a requirement under sections 49 and 50 of the Assessment Act that a new care percentage be determined if that person has had or is likely to have a pattern of care in the period the Child Support Registrar (here the tribunal) considers to be appropriate having regard to all the circumstances.

2. Based on the likely pattern of care finding above, the tribunal determined that:

   · Under section 49 of the Assessment Act, Ms Whobrey’s care percentage for [Child 1] was 0% from 9 March 2019; and

   · Under section 50 of the Assessment Act, Mr Vences’ care percentage for [Child 1] was 100% from 9 March 2019.

3. Relevantly here, under subsection 54B(2) of the Assessment Act, the date of effect of the new care percentage determinations is the day after the revocation of the existing determinations. The tribunal revoked the existing determinations for Mr Vences from 14 April 2019 and for Ms Whobrey from 8 March 2019, thus the new determinations apply to them from 15 April 2019 and 9 March 2019 respectively.

Issue 3: What is the date of effect of this decision?

1. Under subsection 95N(1) of the Registration and Collection Act, if a person applies to the tribunal for review of an objection decision about the care percentages used in a child support assessment more than 28 days after notice of the objection decision is given, the date of effect of the tribunal’s resulting decision is the date of the application to the tribunal.

2. Under subsection 95N(2) of the Registration and Collection Act, the tribunal can decide to extend the period in which an application to tribunal can be made, if the tribunal is satisfied that there were special circumstances which prevented the person from lodging their application for review within 28 days.

3. Special circumstances are not defined in the Registration and Collection Act. The Child Support Guide at 4.1.8 Care Percentage Decisions gives some guidance:

   In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are 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.

4. The Child Support Guide at 4.1.8 Care Percentage Decisions provide some examples of what might constitute special circumstances. Relevantly here, these include, “the parent reasonably relied upon inaccurate or misleading information”. The tribunal found Mr Vences to be a highly credible witness. He said that his solicitor and barrister both advised him that he should not seek review of the 27 April 2019 objections decision until final court orders were in place which acknowledged [Child 1’s] role in determining his own care arrangements. Mr Vences said that he and his legal advisors had expected final orders to be made within a reasonably short period. This did not occur, with final orders being made on [a date in] January 2020 and Mr Vences not receiving the signed orders until over two weeks later.

5. On balance, the tribunal found that the incorrect advice received by Mr Vences was such as to constitute a special circumstance as contemplated in section 95N of the Registration and Collection Act, that is, it is a circumstance which prevented Mr Vences from requesting review of the objections officer’s decision within 28 days of being notified of that decision. The tribunal therefore decided to exercise the discretion in subsection 95N(2) of the Registration and Collection Act and so extend Mr Vences’ permissible date of lodgement to 3 March 2020.

Other

1. The tribunal noted that this care percentage decision is superseded by the 6 July 2019 decision of the Department to make an interim care determination for the period 11 May 2019 to 27 April 2020.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that from 9 March 2019 Mr Vences’ care percentage for [Child 1] was 100% and that of Ms Whobrey was 0%.

The tribunal further decides to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 such that the reference to 28 days in paragraph 95N(2)(b) of the Child Support (Registration and Collection) Act 1988 is extended to 3 March 2020.