Watchorn and Birtwistle (Child support)

[2024] AATA 1182

Watchorn and Birtwistle (Child support) [2024] AATA 1182 (16 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2023/AC027063

2023/AC027079

APPLICANT:  Miss Watchorn

OTHER PARTIES:  Child Support Registrar

Mr Birtwistle

TRIBUNAL:Member M Martellotta

DECISION DATE:  16 April 2024

DECISION:

2023/AC027063

The Tribunal sets aside the care decision under review and in substitution decided that in relation to the child S:

a)The existing care determination of 62% care to Miss Watchorn is revoked as of 10 April 2022.

b)The existing care determination of 38% care to Mr Birtwistle is revoked as of 13 December 2022.

c)A new care determination of 25% care to Miss Watchorn applies from 11 April 2022.

d)A new care determination of 75% care to Mr Birtwistle applies from 14 December 2022.

2023/AC027079

The Tribunal affirms the decision that no determination should be made under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – existing percentage of care determinations revoked – dates of application of new determinations – decision under review 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. This review relates to a change of care determination made on 16 February 2023. On that date Services Australia (Child Support) determined that Miss Watchorn had 25% care and Mr Birtwistle had 75% care of their child S.

2. Miss Watchorn objected to that decision on 26 April 2023. On 26 October 2023 Child support decided that as from 11 April 2022 Miss Watchorn had 0% care and Mr Birtwistle had 100% care. Child Support further decided that because Miss Watchorn had lodged her objection outside of 28 days from the date of notice of the original decision, then the change would be applied from the date she lodged her objection as it was not satisfied that special circumstances prevented her from lodging her application within the prescribed period.

3. On 15 November 2023, Miss Watchorn lodged an application for review with the Tribunal relating to the change in care decision (2023/AC027063). On 20 November 2023 she lodged another application related to the decision that there were no special circumstances preventing her from lodging her objection within 28 days (2023/AC027079).

4. A hearing was held on 28 March 2024. It was conducted by conference telephone with both parties participating, presenting evidence and submissions. In addition to evidence provided at hearing, the Tribunal also consider documents prepared and distributed by Child Support as well as materials provided by Miss Watchorn (A1-A108). [1] The Tribunal requested Child Support clarify some information and also considered their response to that request (C1).

ISSUES

[1] The Tribunal deferred making a decision as it requested Child Support provide some potentially relevant information not included in the documents provided by Child Support. The Tribunal decided it did not require the parties to comment on those materials in order to make its decision.

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) the Child Support (Registration and Collection) Act 1988 (the RC Act) and the Administrative Appeals Tribunal Act 1975.

2. The issues which arise in this case include whether:

   ·the existing care determinations are be revoked; and if so,

   ·whether a new determination of care percentages should be made; and if so, when should the new care percentages apply?

   ·should a determination be made under subsection 87AA(2) of the RC Act?

CONSIDERATION OF EVIDENCE AND STATUTORY PROVISIONS

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

1. Sections 49 and 50 of the Act require Child Support 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 the actual care of a child that a person has or is likely to have may be worked out from the number of nights the child spends in their care.

3. A new percentage of care can be determined by Child Support whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.

4. In relation to care change, the legislative scheme requires any new care percentages determination to be made following notification to Child Support of a change of care arrangement. The primary 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 determination and make a new one. The Tribunal’s task on review is the same.

5. In relation to the change in care relevant to this matter, there was an existing care determination pursuant to which Miss Watchorn had 62% care and Mr Birtwistle had 38% care. This determination was applied from the 13 August 2020 which was the date that court orders were made reflecting care in those percentages.[2]

   [2] History of care decision 13.08.20 - 10.04.22 – 62% (mother)/38% (father)- notified 11.11.20. applied from 13.08.2020. From the original decision 01.01.22 - 10.04.2022 – 25% (mother)/75% (father) - notified 14.12.2022. applied from 01.01.2022. From the objection decision 11.04.22 - ongoing – 0% (mother)/100% (father) - notified 14.12.2022. applied from 11.04.2022. Pending 20.10.22 - ongoing – 51%/49% (shared care) notified 16.08.2023 - applied from 20.10.22. Finally, 26.09.2023 - ongoing – 100% (mother)/0% (father) - notified 11.10.2023 - applied from 26.09.2023.

6. [In] October 2022 new court orders were issued which provided that Miss Watchorn and Mr Birtwistle had shared care of S. The Child Support documents show that a pending care change for S from 4 October 2022 was rejected.[3] There is a further shared care pending determination for the period ongoing from 20 October 2022 for which Child Support advise no official decision has been made.[4]

   [3] Page 409 but the pending care for another child L was accepted.

   [4] C1.

7. On 14 December 2022 Mr Birtwistle contacted Child Support to advise that since 1 January 2022 he had 93% care of S and Miss Watchorn had 7% care. He recognised that there were new court orders in place from 4 October 2022. Mr Birtwistle clarified in his evidence that the actual change in care occurred on 11 April 2022 which he said was the date S commenced living with him on a full-time basis.

8. Miss Watchorn provided the following evidence:

   a)There were changes in care of S from 11 April 2022, but she still had some overnight care and the objection decision that she had 0% care is wrong.

   b)Prior to that period Mr Birtwistle had care every second weekend and every Tuesday night (three nights a fortnight) and half the school holidays.

   c)The pre-existing pattern of care varied mainly because on occasions she requested Mr Birtwistle to have additional nights of care because her (Miss Watchorn’s) friend had been diagnosed with a terminal illness and she was spending time caring for her friend.

   d)Between April to October 2022 sometimes S would choose to spend extra time with her father. At times S was being rebellious and this was reflected in her making different decisions about who she would spend time with. There was no regular pattern, it was random.

   e)There were probably a couple of months in which S spent more time with her father but then she also spent extended time with her such as when in August 2022 they went on holidays in [State 1] to visit her brother.

   f)For a couple of months from April to June or July 2022, care looked different with Mr Birtwistle having about 65% care and she had 45% care. After she and the children returned from their [State 1] holiday in August 2022 it changed to shared care and this was reflected in the October 2022 court orders.

9. Mr Birtwistle in his evidence stated that:

   a)From April to October 2022 according to his diary entries he had increased care of S. He worked out his care percentage over a 12-month period commencing 1 January 2022 because this is what Child Support advised.

   b)However, the actual change in care did not occur until 11 April 2022 and from that date S was in his care full time with some nights with her mother. Over the following six-month period, the mother might have had was around 45 nights of care.

   c)He never thought he had 100% care; it was perhaps more like 75%.

10. The Tribunal referred Mr Birtwistle to his diary entries which reflect that S was spending time with her mother as well as with him and that this appears to have increased from late August 2022. In particular, the diary entry of 29 August 2022 in which S states she wanted to spend two nights and a weekend with each parent on alternative weeks. Mr Birtwistle said that did not occur but he did note that S did start spending more time with the mother after the August holidays, but this was only really from the beginning of 2023. Mr Birtwistle later in his evidence also stated that there were some changes from August 2022, but the real change occurred after 4 October 2022. He also said that following the new court orders, he still had more care of S despite trying to encourage her to spend time with her mother.

11. In this case, effectively the parents disagree as to what the care of S was between April October 2022. In summary, Miss Watchorn’s position is that from 11 April 2022 until the end of August 2022 the father’s care increased to about 65% and from around September 2022 she and Mr Birtwistle had shared care. Mr Birtwistle’s position was that from 11 April 2022 S lived with him, she did spend some nights with her mother, but he had the majority of care which he thinks was about 75% care.

12. As noted, the provisions require consideration of care over a care period. Generally, the Registrar of Child Support utilises a care period of 12 months commencing from the day the actual care changed, however in some cases a period shorter than 12 months may be appropriate to determine a pattern of care. In this case it is apparent on the evidence the parents disagree about the care of S, particularly between April to October 2022. The evidence demonstrates that care was in a state of flux for a period of time with no defined pattern. Given new court orders were made [in] October 2022 the Tribunal concluded that in the particular circumstances of this case a shorter care period commencing from the date of the change 11 April 2022 until the new court orders were made [in] October 2022 is an appropriate care period over which to determine a pattern of care.

13. At hearing Miss Watchorn confirmed that she did not keep a record of nights S was in her care during that disputed period; she was relying upon her recollection of events and by piecing together events through social media posts and text messages. Mr Birtwistle’s evidence was that he kept a diary, this was because he had been advised to do so as he and Miss Watchorn were involved in court proceedings which were going to hearing later in the year.

14. A copy of Mr Birtwistle’s diary was included in the Child Support documents. On balance the Tribunal concludes that Mr Birtwistle’s diary entries provide the most reliable evidence about the care that was occurring during that disputed period. The Tribunal is satisfied and finds that between 11 April 2022 until 4 October 2022 Mr Birtwistle had 132 nights of care and Ms Watchorn had 44 nights of care. Calculated as a percentage over a care period between 11 April 2022 until 4 October 2022 (176 nights) results in Mr Birtwistle having 75% care and Mis Watchorn 25% care.

15. The Tribunal is satisfied that there was a change in care which commenced from 11 April 2022 whereby Mr Birtwistle’s care percentage increased from 38% to 75% and Miss Watchorn’s care percentage decreased from 62% to 25%.

16. In this case the Tribunal is satisfied that revocation of the existing care percentage occurs pursuant to section 54F of the Act. This is because there was an existing care determination pursuant to section 50 of the Act; section 51 did not have application; the notification of the change in care was that the actual care was not corresponding with the care as determined; the change in care would affect the relevant cost percentage;[5] and section 54G does not apply. The Tribunal concluded that the existing care percentages are to be revoked.

    [5] The change in care results in a change in the parental parties’ cost percentage; section 55C of the Act.

17. In this case the Tribunal finds that Mr Birtwistle did not advise Child Support about the change in care which occurred on 11 April 2022 until 14 December 2022. This means that notification occurred more than 28 days from the change in care.

18. Revocation takes effect pursuant to subsection 54F(3) of the Act which is determined by when Child Support was advised of the change in care. Where, as in this case, the notification is more than 28 days after the change in care, then the date of revocation for the person whose care has increased (Mr Birtwistle) takes effect the day before the notification, which is 13 December 2022. For the person whose care has decreased (Miss Watchorn), the revocation takes effect the day before the change of care day, which is 10 April 2022.

Should a new determination of care percentage be made, and if so, from what date?

1. As noted, section 50 of the Act requires Child Support 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.

2. Subparagraph 54B(2)(c)(ii) of the Act says that the application day for the new determination of percentages of care is the day after the revocation of the existing determination. This means that the new care percentage of 75% for Mr Birtwistle applies from 14 December 2022 and the care percentage of 25% for Miss Watchorn applies from 11 April 2022.

Should a determination be made under subsection 87AA(2) of the RC Act?

1. As noted Miss Watchorn also sought review of a decision made by Child Support that no determination should be made under subsection 87AA(2) of the RC Act. This is a decision reviewable by the Tribunal.

2. 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, and the Registrar decides to allow the objection in a way that has the effect of varying the determination to which the care percentage relates, or substituting a new care determination then the decision has effect from the date the person lodged the objection.

3. Subsection 87AA(2) provides an exception to that general rule – if the objections officer is satisfied that there are special circumstances that prevented (emphasis added) 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. In this case the objections officer changed the original care decision. They further decided that there were no special circumstances which prevented Miss Watchorn from lodging her objection within the prescribed period and so the change in care arising from their decision would apply from the date she lodged her objection, namely 26 April 2023.

5. The legislation does not define special circumstances, but the Family Court in Gyselman and Gyselman (1992) FLC 92-279 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 Social Security Guide[6] 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

   ·the parent reasonably relied upon inaccurate or misleading information.

   [6] The Guide is a policy document used by Child Support. 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): Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

6. According to the Child Support documents Miss Watchorn was provided notice of the original care decision on 16 February 2023. Its records also show that she accessed notice of the decision on the same date and then discussed the decision with Child Support on 17 February 2023. In that discussion, she was advised of her objection rights, it is noted that Miss Watchorn advised that she may lodge an objection at a later date but wanted to first speak to her mother before objecting.[7] She was advised that she had 28 days to lodge her objection should she choose to do so. On 26 April 2023 there is a record of Miss Watchorn lodging her objection to the decision.

   [7] Page 238.

7. Miss Watchorn told the Tribunal that she did not immediately act on making her objection because she was wanted to print off a hard copy of the decision before proceeding; she cannot explain why it took her until April to do that and lodge her objection.

8. Authorities confirm the prima facie rule that proceedings outside of legislated prescribed periods will not be entertained unless it is proper to do so. Parliament has prescribed timeframes in child support legislation for lodging objections to decisions made by Child Support.

9. In this case the Tribunal is satisfied and finds that Miss Watchorn was served notice of the decision on 16 February 2023 and that she lodged her objection on 26 April 2023. In the Tribunal’s view there were no special circumstances which prevented her 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. The Tribunal declines to make a determination under subsection 87AA(2) of the RC Act. This means that the decision has effect from 26 April 2023 pursuant to subsection 87AA(1) of the RC Act.

DECISION

2023/AC027063

The Tribunal sets aside the care decision under review and in substitution decided that in relation to the child S:

a)The existing care determination of 62% care to Miss Watchorn is revoked as of 10 April 2022.

b)The existing care determination of 38% care to Mr Birtwistle is revoked as of 13 December 2022.

c)A new care determination of 25% care to Miss Watchorn applies from 11 April 2022.

d)A new care determination of 75% care to Mr Birtwistle applies from 14 December 2022.

2023/AC027079

The Tribunal affirms the decision made by no determination should be made under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988.