Viola-Thrussell and Child Support Registrar (Child support)

[2021] AATA 3185

Viola-Thrussell and Child Support Registrar (Child support) [2021] AATA 3185 (1 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021456

APPLICANT:  Ms Viola-Thrussell

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Martellotta

DECISION DATE:  01 July 2021

DECISION:

a)The existing original care determination that Ms Viola-Thrussell has 69% care and [Mr A] has 31% care is varied and substituted with a care determination that Ms Viola-Thrussell and [Mr A] have shared care. This means the objection decision is varied.

b)The decision to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside and substituted with a new decision that, as there are no special circumstances which prevented lodgement of an objection within 28 days, the date of effect of the allowed care percentage decision is 12 February 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there were changes to the likely pattern of care – existing percentage of care determinations revoked and new determinations made - decisions under review varied

CHILD SUPPORT – date of effect – objection received outside 28 days - whether there were special circumstances that prevented the objection being lodged in time - special circumstances do not exist – decision set aside and substituted

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. Ms Viola-Thrussell and [Mr A] are the parents of a child called [Child 1]. This application concerns the percentage of care recorded by Services Australia – Child Support (the Agency) with respect to that child.

2. On 20 July 2020 [Mr A] advised the Agency of a change in care that took effect that day.  He advised that the mother had moved away, and the child was boarding with a family during the school week and on weekends stayed with him.  On 24 September 2020, the Agency, after speaking to both parents, decided to change the care percentage to reflect that [Mr A] had 100% care and Ms Viola-Thrussell had 0% care from 20 July 2020.

3. On 12 September 2021 (a period greater than 28 days) Ms Viola-Thrussell lodged her objection to the care decision. On 4 April 2021, the Agency decided to partly allow the objection and instead decided to record care as 36% to Ms Viola-Thrussell and 64% to [Mr A]. The Agency also decided to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1988 (the RC Act).

4. This meant that the date of effect of the Agency decision was recorded as 20 July 2020 as it was satisfied that special circumstances had prevented Ms Viola-Thrussell from making her objection application within 28 days of the original decision.

5. On 4 May 2021 Ms Viola-Thrussell lodged an application with the tribunal.  The tribunal convened a hearing held on 1 July 2021.  Ms Viola-Thrussell gave evidence under affirmation.  She was represented at hearing by her solicitor [Representative A]. [Mr A] did not participate in the review. Documents provided to the tribunal included 150 pages provided by the Agency and A1–A5 provided by Ms Viola-Thrussell.

ISSUES

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

2. Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.[1]

   [1] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

3. The main issues which arise in this case are:

   ·     Should the existing care determination be revoked and if so from when?

   · Should a new determination of care percentage be made and if so should a determination be made under subsection 87A(2) of the RC Act? (What is the date of effect?)

CONSIDERATION

Issue 1 − Should the existing care determination be revoked and if so from when?

1. Sections 49 and 50 of the Act require the Department to determine a person’s percentage of care where a person has had, or is likely to have a pattern of care for a child for the care period.  The percentage of care so determined must be a percentage that corresponds with the actual care of the child. 

2. Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out on the number of nights.  A new percentage of care can be determined by the Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.

3. According to the Agency records the original care arrangement in place reflected care for [Child 1] as 69% to Ms Viola-Thrussell and 31% to [Mr A].[2]  [Representative A] told the tribunal that her client relocated to [Town 1]outside of the Perth metropolitan area.  [Child 1] was attending [a named] located in the metro area.  This resulted in [Child 1] entering into an arrangement with some family friends ([Family A]) to board with them during the school week.

   [2] The tribunal notes that this is consistent with an unsigned parenting agreement provided by Ms Viola-Thrussell dated September 2013. 

4. According to Ms Viola-Thrussell she was not in favour of the arrangement, as her preference was for [Child 1] to continue to live with her and commute each day to school.  [Child 1] did not want to do this and he spoke to his father who agreed with the boarding arrangement and agreed to pay [Family A] $100 per week for [Child 1’s] board and to also have [Child 1] stay with him on the weekends.  Ms Viola-Thrussell said she spoke to [Mrs A] and it was her impression that the arrangement would be trialled for a period of up to three months and she thought that ultimately [Child 1] would end up returning to live with her.  She agrees that this arrangement occurred around 20 July 2020.

5. Ms Viola-Thrussell described [Child 1] as a very mature, intelligent young person and she said that he was very independent who worked and paid for many of his own costs.  She said that she did not accept that [Child 1] spent much time with his father as this was what she had been told by [Child 1] and other family friends.  She also stated that whilst she agreed that [Mr A] was the parent who paid for [Child 1’s] boarding costs that this was consistent with what was agreed between them that he would cover the education costs.  She said that she covered other costs for [Child 1’s] care.

6. Consistent with her written application Ms Viola-Thrussell told the tribunal that the reality was that [Child 1] lived as an independent person spending 80% of his time with [Family A] and perhaps 10% if his time with his father and 10% of the time with herself.  That evidence was consistent with her application which states that  (in relation to the care arrangement) the ‘truth is 100% at [Family A’s], 3^rd party carers with the odd night at his mothers and fathers’.[3]

   [3] Page 1.

7. However, at hearing, the submissions made on her behalf by [Representative A] were that the tribunal should adopt an approach which (consistent with the objection decision) recognised that each parent contributed 50% care during the school week on the basis of financial, emotional and other support that they provided to their son but that the allocation of additional nights of care to [Mr A] for weekends was incorrect and that [Child 1] regularly spent a week of every school holidays with her as well as nights for other special occasions which amounted to about 40 nights per annum which would mean care should be assessed on the basis of her client having 190 nights of care per annum (52%) and [Mr A] having 175 nights (48%).

8. It appeared to the tribunal that on the one hand, Ms Viola-Thrussell was seeking an outcome which in effect there ought to be a determination that there had been a terminating event on the basis that both parents had less that regular care and the child was operating as an independent but at the same time she was also putting forward submissions that sought an increase in the level of her care based upon other supports provided.  [Representative A] advised that her client was confused between a level of care that was based upon nights in care versus a level of care which was based upon other aspects.

9. Evidence provided by the Agency confirms that [Mr A] pays Mr and [Mrs A] board for [Child 1]. [Mr A] and his de facto partner provided statements stating that [Child 1] spends weekends with them and otherwise spends the week with [Family A].  There was no evidence  provided by the Agency regarding what occurred over the school holidays.

10. In this matter the tribunal is satisfied that a change in care occurred on 20 July 2020 due to Ms Viola-Thrussell moving to [Town 1] and [Child 1] entering into an arrangement whereby he boarded with a family so as to remain close to his school.  The tribunal is also satisfied that both parents continue to contribute to [Child 1’s] wellbeing by providing financial and emotional support to their son.  In the tribunal’s view, evidence regarding what time [Child 1] spends with his parents when not at [Family A’s] is less clear.  At the point in time that the change in care occurred Ms Viola-Thrussell said that she was opposed to the arrangement and thought that her son would eventually return to live with her after giving it a trial for three months.  [Mr A’s] evidence to the Agency was that [Child 1] would spend weekends with him.

11. As noted, Ms Viola-Thrussell’s evidence of [Child 1] spending time with her over the holidays appears at odds with her application statement and initial evidence that he spends minimal time with either parent.

12. As noted in the Guide, the percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child.[4] When an application for child support assessment is received, the Registrar is required to determine the percentage of care that is to be applied to the assessment.

    [4] The Guide at 2.2.1.

13. Section 50 of the Act requires the Agency to determine a person’s percentage of care where a person has had, or is likely to have a pattern of care for a child for the care period.[5] The percentage of care so determined must be a percentage that corresponds with the actual care of the child.

    [5] A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised (the Guide 2.2.1).

14. The primary decision-maker’s (that is the Agency’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).  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.  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.

15. In determining the percentage of care where a child was not living with either parent due to schooling, the tribunal noted the Federal Magistrates’ Court decision in Polec & Staker[6] (at paragraph 56 of that decision):

    [6] (SSAT Appeal) [2011] FMCAfam 959 (9 September 2011).

    In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

    a.To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?

    b.To what extent does the person make arrangements for others to meet the needs of the child?

    c.To what extent does the person pay for the costs of meeting the needs of the child?

    d.To what extent does the person otherwise provide financial support for the child?

    e.To what extent does the child provide for his or her own needs or have those needs met from another source?

    f.To what extent is the child financially independent or financially supported from another source?

16. In the tribunal’s view the evidence in this case confirms that each parent was contributing to the care each in their own particular way and on that basis the tribunal concludes that on this basis the likely pattern of care as of 20 July 2020 was that the parents would have equal care.[7]

    [7] In reaching this conclusion the tribunal notes that this has the same care/cost outcome were it have accepted Ms Viola-Thrussell’s submissions that care should be based upon a finding of 190 nights care for herself and 175 nights of care for [Mr A].

17. As noted in this matter the original care determination that was in place for [Child 1] was 69% to Ms Viola-Thrussell and 31% to [Mr A]. The tribunal has concluded that as of 20 July 2020 the likely pattern of care was that each parent was to have shared care of [Child 1].

18. The tribunal is first required to consider whether care is to be revoked under section 54G of the Act.  However it is satisfied that the relevant criteria of that provision does not have application. The tribunal concluded that section 54F of the Act is the relevant provision for revocation.[8]

Issue 2 – Should a new determination of care percentage be made and if so should a determination be made under subsection 87A(2) of the RC Act? (What is the date of effect?)

[8] The new percentages of care results in a change in the cost percentages (amongst other things).

1. Subparagraph 54B(2)(c)(ii) of the Act says that the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations.  In this matter, the tribunal has revoked the existing percentage of care determinations as of 19 July 2020 which would mean that in the usual course the new care percentage would apply as of 20 July 2020.  However in this case a question arises regarding the date of effect of any changed care percentage, this is because Ms Viola-Thrussell lodged an objection to the original care decision  on 12 February 2021 which is more than 28 days from the date of the original decision made on 24 September 2020.

2. In this case the Agency decided to make a determination under subsection 87AA(2) of the RC Act. That is a decision reviewable by the tribunal. Section 87AA of the RC Act provides that if a person objects to a care percentage decision more than 28 days after the person was served with a notice of the decision, the decision has effect from the date the person lodged the objection. This would mean that in the usual course of events the date of effect of any change in care decision would have been 12 February 2021.

3. Subsection 87AA(2) provides an exception to that general rule if the objections officer is satisfied that there are special circumstances that prevented the person from lodging the objection within 28 days then they may determine that the section applies as if they had objected within time.

4. The legislation does not define special circumstances, but the Family Court in Gyselman & Gyselman [1992] FLC 92-279 has held: ‘as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary’. The Guide[9] at 4.1.8 notes that:

   The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe…some examples…may include:

   ·the parent was seriously ill or had an accident…

   ·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

   ·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

   [9] The Guide is a policy document used by the Agency. A decision maker is not bound by such policies but can be guided by the policies articulated in the Guide unless a cogent reason exists to do otherwise (such as if the policy produces an unjust result in a particular case): Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

5. In this matter, the Agency decided to make a determination under subsection 87AA(2) on the basis that it accepted Ms Viola-Thrussell’s explanation that she delayed making an objection because she believed that the new care arrangement was on trial for a period of up to three months and also because she was not aware that the change in care had resulted in a liability for child support which was to be collected by the Agency. The Agency concluded that it accepted that Ms Viola-Thrussell had a reasonable cause for delay and special circumstances exist.

6. At hearing, Ms Viola-Thrussell told the tribunal that letters advising her of the original decision (dated 24 September 2020) and a subsequent letter advising that it had granted an application from [Mr A] and had calculated the amount she was required to pay [Mr A] (dated 30 September 2020) had been sent to her myGov account which she only accessed after she was asked to pay child support to [Mr A] in February 2021.

7. At hearing [Representative A] submitted that her client was unfamiliar with the child support system having previously been in a private collect arrangement and she was still distraught at her son’s decision to board with [Family A]. 

8. The tribunal was not satisfied that the circumstances put forward by Ms Viola-Thrussell can be characterised as special, particularly given that she was sent notices of the decisions which she acknowledged had been received in her myGov account but she did not access.  Ms Viola-Thrussell said that she had asked for correspondence to be sent to her by post and this is why she did not review the correspondence sent to her myGov account.  The tribunal does not consider this can be characterised as special circumstances. Clearly, Ms Viola-Thrussell had just engaged in a process of providing the Agency with information about a change in care and it appears odd that having received Agency correspondence in her online account she did not access that information. Further, her excuse that she believed that the new care arrangement was only a trial does not appear to be relevant as at the time of her objection some six months had elapsed since the commencement of the arrangement.

9. In the tribunal’s view there were no special circumstances which prevented Ms Viola-Thrussell from lodging her application within the mandated 28 days and as such the date of effect of the allowed care percentage decision is the date the objection was made, namely 12 February 2021.

DECISION

a)The care percentage decision under review is varied.  The existing care determination that Ms Viola-Thrussell has 69% care and [Mr A] has 31% care is varied and substituted with a care determination that Ms Viola-Thrussell and [Mr A] have shared care.

b)The decision to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside and substituted with a new decision that, as there are no special circumstances which prevented lodgement of an objection within 28 days, the date of effect of the allowed care percentage decision is 12 February 2021.