Walton and Silkstone (Child support)

[2023] AATA 2146

Walton and Silkstone (Child support) [2023] AATA 2146 (1 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC025142

APPLICANT:  Mr Walton

OTHER PARTIES:  Child Support Registrar

Ms Silkstone

TRIBUNAL:Senior Member S Trotter

DECISION DATE:  1 June 2023

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [the child]:

1. the existing percentage of care determination of 73% to Mr Walton is revoked from 10 August 2021 and replaced with a new percentage of care determination of 0% applying from 11 August 2021; and

2. the existing percentage of care determination of 27% to Ms Silkstone is revoked from 10 August 2021 and replaced with a new percentage of care determination of 0% applying from 11 August 2021.

The Tribunal determines pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988 that section 87AA applies as if the reference to 28 days in paragraph 87AA(1)(b) was a reference to a longer period extending until 29 September 2022.

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

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. As relevant to this application, Mr Walton and Ms Silkstone are parties to a child support case registered with Services Australia – the Child Support Agency (Child Support) in relation to financial support to be provided for [the child] (born 2005). The application concerns a single decision of Child Support about the recorded care for [the child] utilised in calculation of the child support liability.

2. From 3 October 2020, the pre-existing percentages of care applying in the child support case for [the child] were 73% to Mr Walton and 27% to Ms Silkstone.

3. On 12 August 2021, Mr Walton contacted Child Support and advised a change to the care position of [the child] from 11 August 2021 stating that [the child] was living with Ms Silkstone 100% of the time from 11 August 2021.

4. On 2 September 2021, Child Support decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 0% to Mr Walton and 100% to Ms Silkstone from 11 August 2021.

5. On 29 September 2022, Mr Walton objected to this decision stating that he was seeking for the care period 11 August 2021 to 9 October 2021 to be reviewed as Ms Silkstone did not provide care during that period.

6. On 8 November 2022, a Child Support objections officer disallowed the objection.

1. On 28 November 2022, Mr Walton lodged an application with the Tribunal seeking an independent review of Child Support’s decision stating that he disagreed with Child Support’s decision because [the child] had not been with his mother for two months.

1. A hearing was conducted on 19 April 2023. Mr Walton participated in the hearing by conference telephone and gave evidence on affirmation. Ms Silkstone was invited to participate in the 19 April 2023 hearing but advised the Tribunal Registry that she would not be participating. Following the 19 April 2023 hearing, the Tribunal wrote to Ms Silkstone inviting her to provide evidence and/or submissions to be taken into account by the Tribunal. No response was received from Ms Silkstone to the Tribunal’s invitation. The Tribunal reconvened a further hearing on 1 June 2023. Mr Walton again participated in the hearing by conference telephone and gave evidence on affirmation.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Walton and the documentary material provided by Child Support to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 224).

RELEVANT LEGISLATION

10.  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) Act1988 (the Registration and Collection Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

11.  The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision, and the Tribunal adopts that approach.

12.  Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

13.  A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12‑month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

14.  The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate, and when that is the case a parent can notify Child Support and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

15.  Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.

16.  The term care is not defined in the child support legislation. The decision of Federal Magistrate Hughes (as she then was) in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec) provides guidance, which has been adopted in the Guide at section 2.1.1 as follows:

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?

17. Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or section 50 of the Act.

18.  The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

1. The Registration and Collection Act provides a mechanism for parents who are dissatisfied with a care percentage decision to seek a review of the decision by lodging an objection. However, if an objection concerning care percentages is lodged more than 28 days after notice of the care percentage decision is given, section 87AA of the Registration and Collection Act provides that the date of effect in relation to the new care determination is the date of the objection. The effect of an objection decision can only be backdated if there are special circumstances which prevented the person from lodging their objection within 28 days.

ISSUES

20.  It follows that the issues to be determined by the Tribunal are as follows:

(a)Are the pre-existing percentage of care determinations for Mr Walton and Ms Silkstone to be revoked? And, if so,

(b)What are the new percentage of care determinations for Mr Walton and Ms Silkstone? And

(c)What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

CONSIDERATION

21.  Mr Walton’s evidence to the Tribunal was that he did not see [the child] for approximately 13 months from August 2021. Prior to that time [the child] had been in his care the majority of the time (as was reflected in the then recorded percentages of care). However, [the child] left his care on 11 August 2021. That was the reason for his notification of the change of care to Child Support on 12 August 2021. However, he subsequently found out that Ms Silkstone refused to allow [the child] to live with her as he was not vaccinated for COVID-19 and, further, she therefore would not let [the child] continue to work in his part-time job after school and on weekends (because of a concern that he would contract COVID-19 and pass it on). When [the child] later came back in to his care in September 2022, [the child] updated him on what had actually occurred, including that [the child] had been staying with his elder sister from 11 August 2021 to 9 October 2021 and not Ms Silkstone.

22.  The Tribunal discussed with Mr Walton that in assessing the extent of care a person has of a child, actual physical care is not the only consideration, noting that the child support legislation and case law such as Polec require consideration of additional matters such as the extent to which a person meets the needs of the child by providing accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities, the extent to which a person makes arrangements to meet the needs of the child, including meeting the costs of those needs and other financial and other support provided. Mr Walton’s evidence was that [the child] has told him that he had no contact with Ms Silkstone during the time that he was staying with his sister and that he was paying his own costs from his part-time income.

23.  There is otherwise no evidence before the Tribunal as to [the child]’s actual living and other arrangements from 11 August 2021. Ms Silkstone was invited by the Tribunal, in its letter of 19 April 2023, to provide any written submissions/documents she wished the Tribunal to take into account, including specific details in relation to the care of [the child] from 11 August 2021, such as who was meeting his costs and who was making arrangements in relation to his needs. Ms Silkstone has not responded to that invitation. Further, Ms Silkstone was notified that if she chose not to participate in the hearing nor to provide information or submissions, the Tribunal would proceed to make a decision based upon the evidence before it and a decision adverse to her interests may be made.

24. Generally speaking, the rules of evidence in legal and similar proceedings include that a person cannot give evidence about something that another person told them (hearsay). However, pursuant to paragraph 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate. Mr Walton sought to have [the child], who turned 18 in March 2023, give evidence to the Tribunal. As [the child] has now turned 18, section 98A of the Registration and Collection Act does not prevent him giving oral evidence. However, the Tribunal does not consider it desirable or in the interests of a child of a relationship to give oral testimony in relation to proceedings concerning their parents, whatever their age. The Tribunal is not bound by the rules of evidence and can take into account hearsay evidence such as Mr Walton’s evidence of what [the child] told him as to [the child]’s circumstances from 11 August 2021 in terms of who he was staying with, who was making decisions in relation to him and who was paying for his costs etc. The Tribunal might usually place very limited weight or reliance on hearsay evidence. However, given the circumstances of this matter, including that Ms Silkstone has chosen not to participate in the hearing nor to provide evidence or submissions as invited, the only evidence before the Tribunal in relation to [the child]’s care from 11 August 2021 is the hearsay evidence of Mr Walton as to what [the child] has told him. Having had regard to all matters, the Tribunal accepts that evidence and concludes that [the child] was not in the physical care of Ms Silkstone from 11 August 2021 nor was she otherwise meeting [the child]’s needs or providing support to him. The Tribunal therefore concludes that from 11 August 2021 [the child] was not in the care of either Mr Walton or Ms Silkstone.

Issue 1 – Are the pre-existing percentage of care determinations for Mr Walton and Ms Silkstone to be revoked?

1. Section 54G provides that if a person was to have at least regular care (that is, at least 14%) of a child during a care period under a recorded percentage of care determination and the other person was to have more than 0% care, the child was being made available for care by the other person, the other person has notified the change of care within a period that is reasonable in the circumstances and the first person has no care or a pattern of care less than regular care, both recorded percentage of care determinations must be revoked.

1. Consistent with section 2.2.3 of the Guide, given [the child] was 16 years of age at the relevant time, the Tribunal is satisfied that care was made available and section 54G applies and the existing percentages of care of 73% to Mr Walton and 27% to Ms Silkstone are therefore required to be revoked pursuant to section 54G.

Issue 2 – What are the new percentage of care determinations for Mr Walton and Ms Silkstone?

1. Percentage of care determinations are required pursuant to subsection 49(2).The Tribunal determines that Mr Walton’s percentage of care for [the child] is 0% and Ms Silkstone’s percentage of care for [the child] is 0% as outlined in the above consideration.

Issue 3 – What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

1. Pursuant to subsection 54G(2), the revocation of each percentage of care determination takes effect at the end of the day before the day on which the previously established pattern of care ceased, that is 10 August 2021.

2. It is then necessary to determine from when new percentage of care determinations are to apply.

3. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is, the day immediately after revocation of the previous percentage of care determinations. Therefore, new percentage of care determinations of 0% to Mr Walton and 0% to Ms Silkstone apply from 11 August 2021.

4. Child Support’s decision of 2 September 2021 was sent to the parties under cover of a letter dated 2 September 2021. Mr Walton lodged an objection to the decision on 29 September 2022. The objection was therefore made more than 28 days after notice of the 2 September 2021 care percentage decision was given to Mr Walton.

5. Given the Tribunal’s decision is to substitute a new decision, the Tribunal considered whether there were special circumstances that prevented the objection from being made within the 28 days after the notice of the care percentage decision was served. Mr Walton’s evidence was that he did not lodge an objection until September 2022 because it was not until then that he saw [the child] for the first time in 13 months and became aware that [the child] had not been in Ms Silkstone’s care from 11 August 2021. Mr Walton said that his son [Child 2] had told him some time earlier that [the child] was not at Ms Silkstone’s house however he had no way of knowing whether that was a temporary situation or what was happening. It was not until he saw [the child] again in September 2022 that he became aware of what was happening in August 2021.

6. Taking all of these circumstances into account, the Tribunal is satisfied that in the particular circumstances of this matter that there were special circumstances which prevented Mr Walton from lodging an objection within 28 days of being given the objection decision such that the reference to 28 days in paragraph 87AA(1)(b) is a reference to a longer period such that Mr Walton’s objection was made within the required period.

7. It follows that the percentage of care determinations of 0% to Mr Walton and 0% to Ms Silkstone apply from 11 August 2021.

Conclusion

35.  As this is different to the decision of the objections officer, the decision under review will be set aside and a new decision substituted.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [the child]:

1. the existing percentage of care determination of 73% to Mr Walton is revoked from 10 August 2021 and replaced with a new percentage of care determination of 0% applying from 11 August 2021; and

2. the existing percentage of care determination of 27% to Ms Silkstone is revoked from 10 August 2021 and replaced with a new percentage of care determination of 0% applying from 11 August 2021.

The Tribunal determines pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988 that section 87AA applies as if the reference to 28 days in paragraph 87AA(1)(b) was a reference to a longer period extending until 29 September 2022.