Wesby and Manko (Child support)

[2018] AATA 4348

Wesby and Manko (Child support) [2018] AATA 4348 (4 October 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014607

APPLICANT:  Mr Wesby

OTHER PARTIES:  Child Support Registrar

Ms Manko

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  04 October 2018

DECISION:

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Wesby provides 35 per cent care and Ms Manko provides 65 per cent care of [Child 1] and [Child 2] and Mr Wesby provides 34 per cent care and Ms Manko provides 66 per cent care of [Child 3]; and

(b) The decision in (a) above has effect from 6 September 2017 under section 95N of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS
CHILD SUPPORT – percentage of care – pattern of care – determination revoked and new determination made – decision under review set aside and substituted

CHILD SUPPORT – application for review not made within 28 days of service of notice of objection decision – date of effect of Tribunal’s decision – special circumstances

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. This review is about a change to the percentage of care determination for Mr Wesby and Ms Manko in respect of the children [Child 1], [Child 2] and [Child 3].

2. Mr Wesby and Ms Manko are the parents of [Child 1] (born [2002]), [Child 2] (born [2004]) and [Child 3] (born [2006]) and Ms Manko was the parent liable to pay child support under the assessment.

3. From 6 November 2016 the child support assessment reflected Mr Wesby as having 36 per cent care and Ms Manko 64 per cent care of [Child 1].  From 2 April 2017 the child support assessment reflected Mr Wesby as having 51 per cent care and Ms Manko as having 49 per cent care of [Child 2] and [Child 3].

4. On 6 September 2017 Ms Manko advised the Department of Human Services, Child Support (the Child Support Agency) of a change of care stating that care should be recorded as Mr Wesby having 28 per cent care and Ms Manko having 72 per cent care of the three children.

5. On 17 November 2017 the Child Support Agency made the decision to accept that Mr Wesby provides 33 per cent care and Ms Manko provides 67 per cent care of the three children from 6 September 2017.

6. On 27 November 2017 Mr Wesby objected to this decision and on 19 May 2018 the Child Support Agency allowed the objection in part and made the following decision (the objection decision):

   ·       Mr Wesby has 34 per cent care  and Ms Manko has 66 per cent care of [Child 1] and [Child 2] from 6 September 2017; and

   ·       Mr Wesby has 33 per cent care and Ms Manko 67 per cent care of [Child 3] from 6 September 2017.

7. On 19 July 2017 Mr Wesby applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection decision.

8. The Tribunal conducted a hearing into the application on 4 October 2018.  Mr Wesby and Ms Manko gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (97 pages).  Mr Wesby also provided the Tribunal with additional evidence prior to the hearing (A1-A4) as did Ms Manko (B1-B13).  Copies were distributed to the parties.

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 R&C Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. The issues which arise in this case are:

   ·       has there been a change in the pattern of care for [Child 1], [Child 2] and [Child 3] which requires existing percentages of care to be revoked and new care determinations to be made; and if so,

   ·       from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Wesby told the Tribunal that care of [Child 1], [Child 2] and [Child 3] changed when his living and working arrangements changed around September 2017.  Mr Wesby said under the new care agreement between the parents he had the children four nights every fortnight during school term and half the school holidays.  He also had care on some public holidays.

2. Mr Wesby said his only disagreement with the care decision made by the Child Support Agency was that the additional care he had of the children on three public holidays throughout the year was not taken into consideration.  Mr Wesby explained that he had initially asked Ms Manko for care of [Child 1], [Child 2] and [Child 3] on all public holidays but she had only agreed to those public holidays that fell when he had care of the children.

3. Mr Wesby also pointed out that he had less care of [Child 3] because she attended a public primary school, whereas [Child 1] and [Child 2] were at a [private] school which had different holidays.  He said [Child 3] had around two weeks less holidays than [Child 1] and [Child 2].

4. Ms Manko said she agreed with the care details described by Mr Wesby although she was uncertain why he was going to so much trouble over a few public holidays.  Ms Manko said care changed on 6 September 2017 when Mr Wesby moved from [City 1] to [Town 1] which was about an hour away.  Ms Manko acknowledged that Mr Wesby had additional care of the children on public holidays when they fell during his periods of care.

5. Ms Manko told the Tribunal there were also occasions when care changed because one parent might want additional care for some reason, however, such changes were accounted for through make-up days.

6. Mr Wesby agreed that care changed on 6 September 2017.  He also agreed that the parents had a flexible arrangement about make-up days when one parent might miss care.

7. The Tribunal discussed with both Ms Manko and Mr Wesby the public holidays they agreed that Mr Wesby had additional care of the children from the date care changed.   Ms Manko said they were New Year’s Day, Labour Day (12 March 2018) and the Queen’s Birthday (11 June 2018).  Mr Wesby agreed.  Both parents also agreed they would alternate care on New Year’s Day so this would balance out.

8. Ms Manko said she felt the Child Support Agency may also have calculated the amount of holidays for the children incorrectly.

9. The Tribunal notes that on 9 January 2018 Ms Manko provided the Child Support Agency with the 2018 term dates for [School 1] where [Child 1] and [Child 2] attend school.  Ms Manko explained the holidays for the children as follows:

   [Child 1] and [Child 2] attend a [private] Primary school.  Whilst term holidays remain the same as all Victorian school term holidays they have a longer break at Christmas.  11^th December-1^st February (with teacher advisory interviews 29^th and 30^th January). - 7weeks holiday

   [Child 3] attends a public primary school.  With standard Victorian school holidays (2 weeks at the end of each term and 5 weeks at Christmas. (term 4 ends 22/12/17- term 1 starts 29/1/18).

   [Child 1] and [Child 2] = 13 weeks holiday

   [Child 3] = 11 weeks holiday

10. As the parents agree that Mr Wesby has care of the children for four nights every fortnight during school term and half the school holidays, the Tribunal examined the term calendars for state schools in Victoria and for [School 1].  The Tribunal then worked out the number of term days and the number of holiday days for each school as it considered this to be a fairer way of calculating care than on a weekly basis. 

11. The Tribunal is satisfied that [Child 3], who attends a state school, has 279 term nights and 86 holiday nights.  The Tribunal is satisfied that [Child 1] and [Child 2], who attend [School 1], have 261 term nights and 104 holiday nights.  The additional holiday nights for [Child 1] and [Child 2] are due to the extended end of year holiday period at [School 1].[1]

    [1] Final term in 2017 ended on 7 December 2017 and the new school year commenced on 1 February 2018.

12. The Tribunal calculated Mr Wesby’ care of [Child 1], [Child 2] and [Child 3] as follows:

Child	Term Care	Holiday Care	Total Care
[Child 1]	261/14 x 4 nights care per fortnight = 74	104/2 = 52	74+52 = 126 nights
[Child 2]	261/14 x 4 nights care per fortnight = 74	104/2 = 52	74+52 = 126 nights
[Child 3]	279/14 x 4 nights care per fortnight = 80	86/2 = 43	80+43 = 123 nights

1. As Mr Wesby and Ms Manko agree that Mr Wesby had an additional two nights’ care on public holidays, the Tribunal will add this to the total nights as calculated above.  The Tribunal will not add the third night as the parents also agree this will balance out as they will have care on New Year’s Day on alternating years.  Calculating the actual care each parent has as a result of the additional day may mean the parents would need to apply for a change of care every year.

2. The Tribunal is satisfied Mr Wesby has care of [Child 1] and [Child 2] totalling 128 nights, or 35 per cent care, and care of [Child 3] totalling 125 nights, or 34 per cent care, from 6 September 2017.

3. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s existing percentage of care and a change in the percentage of care would result in a change to the cost percentage then the existing percentage of care determination must be revoked and replaced by a new percentage of care determination.

4. As section 54F of the Act is met, the Tribunal finds the previous determination must be revoked and replaced with the pattern of care that took place.

New care percentage decision

1. Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Mr Wesby and Ms Manko under section 50 of the Act.

2. For the reasons outlined above the Tribunal finds that Mr Wesby provides 35 per cent care and Ms Manko provides 65 per cent care of [Child 1] and [Child 2] and Mr Wesby provides 34 per cent care and Ms Manko provides 66 per cent care of [Child 3] from 6 September 2017.

Date of effect of new care percentage decision

1. Section 95N of the R&C Act determines the date of effect of a decision to set aside a care percentage decision. Mr Wesby applied to the Tribunal on 19 July 2018 for review of the objection decision made on 19 May 2018. As Mr Wesby’ application to the Tribunal was not within 28 days of being served with notice of the objection decision, the date of effect of any new decision by the Tribunal is the date on which he applied for review.

2. The Tribunal may extend the 28 days if there are special circumstances that prevented Mr Wesby from applying for review within the relevant period. While the R&C Act does not define “special circumstances”, the Child Support Guide at 4.1.8 provides some direction and states the circumstances must be “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.”

3. In determining an application for review, in the interests of consistency in decision making, the Tribunal would ordinarily apply such policy if it is not inconsistent with the Act.

4. Mr Wesby told the Tribunal that during a conversation with the Child Support Agency he was advised the objection decision may take time to finalise because the objections officer was on vacation.  He said he kept checking online for a decision but nothing arrived.  He said due to the delay he contacted the Child Support Agency to make further enquiries but was told a decision had already been made and sent to him by post.  Mr Wesby said he did not receive the decision in the mail and did not know about it until he rang the Child Support Agency again.  He requested another copy of the decision and then objected.

5. The Tribunal notes in evidence from the Child Support Agency that during a conversation with a child support officer on 18 July 2018 Mr Wesby advised that he had not seen the objection decision.  The child support officer informed Mr Wesby the decision had been posted on 19 May and informed him of his right to lodge an application for review with the Tribunal.  This supports Mr Wesby’ reason for not submitting a request for review sooner.

6. The Tribunal also notes that it appears neither Mr Wesby nor Ms Manko were advised verbally by the Child Support Agency that an objection decision had been made.  This also supports Mr Wesby’ contention that he was unaware the objection decision had been finalised.

7. The Tribunal is satisfied that Mr Wesby did not submit his application for review sooner because he was unaware that an objection decision had been made.  The Tribunal finds this constitutes special circumstances in this case.  Accordingly the Tribunal will extend the 28 day period and its decision is effective from 6 September 2017.

DECISION

(a)  The Tribunal sets aside the decision under review and, in substitution, decides that Mr Wesby provides 35 per cent care and Ms Manko provides 65 per cent care of [Child 1] and [Child 2] and Mr Wesby provides 34 per cent care and Ms Manko provides 66 per cent care of [Child 3]; and

(b) The decision in (a) above has effect from 6 September 2017 under section 95N of the Child Support (Registration and Collection) Act 1988.