Wheelan and Wheelan (Child support)

Wheelan and Wheelan (Child support) [2019] AATA 5515 (29 October 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/AC017187
APPLICANT:  Ms Wheelan
OTHER PARTIES:  Child Support Registrar
Mr Wheelan

TRIBUNAL:Member Y Webb
DECISION DATE: 29 October 2019
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides - with a date of effect of 23 March 2019 – that the care percentages in relation to the two younger children were 49% to Ms Wheelan and 51% to Mr Wheelan and the care percentages in relation to the eldest child were 16% to Ms Wheelan and 84% to Mr Wheelan.

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 – date of effect of objection decision – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist – 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 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

This review is about the percentages of care of Ms Wheelan and Mr Wheelan in relation to their children. The children are aged 15, 13 and 11.
There are no court orders or signed written parenting plans in relation to the care of the children.
On 23 March 2019 Mr Wheelan made an application for a child support assessment for the children. He indicated that he anticipated that the care would be 58% to him and 42% to Ms Wheelan in relation to the two younger children and 100% to him and 0% to Ms Wheelan in relation to the eldest child.
On 11 April 2019 the Department of Human Services (Child Support Agency) made a decision to accept the application for a child support assessment. It also decided that the two younger children were in the 58% care of Mr Wheelan and 42% care of Ms Wheelan and that in relation to the eldest child Mr Wheelan’s care was 93% and Ms Wheelan’s 7% from 13 March 2019 and applied to the child support assessment from 23 March 2019.
On 27 May 2019 Ms Wheelan telephoned the Child Support Agency to query why child support had been deducted from her salary. On 27 May 2019 she also wrote to the Child Support Agency advising that she had not been contacted about paying child support and was unaware of it until that day. She also stated that she was objecting to the care levels which had been determined.
On 2 August 2019 an objections officer partly allowed Ms Wheelan’s objection and decided that Ms Wheelan and Mr Wheelan each had 50% care of the two younger children and that in relation to the eldest child the care percentages remained at 93% to Mr Wheelan and 7% to Ms Wheelan. These changes to the percentages of care for the two younger children were determined to be from 13 March 2019 but effective from the date of lodgement of Ms Wheelan’s objection (which the Child Support Agency stated was 28 May 2019).
On 19 August 2019 Ms Wheelan applied for review to the Administrative Appeals Tribunal (the Tribunal).
Ms Wheelan and Mr Wheelan both attended the hearing in person on 29 October 2019. Ms Wheelan gave sworn evidence and Mr Wheelan gave evidence on affirmation.

ISSUES

a) What were the actual care arrangements in relation to the children in the relevant care period?
b) Should a new determination of a percentage of care for the children be made? If so, what is the percentage of care under the new determination and from when should it apply?

CONSIDERATION

Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.
The legislation requires the Tribunal to determine a percentage of care for a parent based on the pattern of care that a parent has had or is likely to have for a child in a care period. The pattern can be established either according to a “care arrangement” (such as court orders or a parenting plan) or the actual care that is taking place. In this case, there are no court orders or a signed parenting plan in relation to the care of the children. Therefore the Tribunal must consider the actual care. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law.
The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12 month period starting from the date of the assessment and reflecting the actual care that a person has, or is likely to have, during the care period. In this case the Tribunal is satisfied that a 12 month care period is appropriate. The Tribunal notes that although the Tribunal has decided that a 12 month care period is appropriate, this will continue to apply until a further change of care is notified (which may be before or after a 12 month period has elapsed).
Section 54A provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.
In this case neither Ms Wheelan nor Mr Wheelan contended that nights were an unsuitable measure of the care that they were providing to the children and the Tribunal finds that nights are the most appropriate and reliable method of ascertaining the actual care of the children in this case.
It is not in dispute that on 23 March 2019 Mr Wheelan made an application to the Child Support Agency for a child support assessment and that it was accepted on 11 April 2019.
Ms Wheelan also confirmed that she was not contesting the decision of the objections officer that care of the two younger children was 50/50 to each of the parents. She stated that the 50/50 arrangement applied during school terms and during school holidays. The only point of disagreement is that she believes that her care of the eldest child is not 7% but is (on average) two nights per fortnight and half of the school holidays.
In relation to the two younger children Ms Wheelan stated that initially when the parents separated there was some adjusting of the nights of care for each parent but by the time of the decision on 11 April 2019 the care had moved to a 50/50 arrangement.
In relation to the eldest child Ms Wheelan stated that it was agreed that both parents would have care for half of all school holidays. In addition, Ms Wheelan stated that on average she believed that she had care of the eldest child two nights per fortnight. Ms Wheelan stated that she always had care every second Friday night and on average another night each fortnight. Sometimes the other night was a Friday, a Saturday or a public holiday or a student free day. She stated that there was not such a pattern to the second night per fortnight.
Mr Wheelan stated that in relation to the two younger children, early on at the time that they initially attended mediation [on] 13 March 2019, it was anticipated that he would have care eight nights per fortnight and Ms Wheelan six nights a fortnight but he said that this arrangement never became established and over the subsequent weeks the care arrangements moved to each parent having 50% care. Mr Wheelan agreed that the care of the two youngest children was 50% to both him and Ms Wheelan during school terms and during school holidays.
Mr Wheelan also confirmed that the care of the eldest child was 50% to each of the parents during school holidays. However, during term times Mr Wheelan stated that the care was very much built around the child’s sporting commitments. Also, the eldest child was not keen, especially at first, to move from house to house. Mr Wheelan stated that in his view the eldest child is, during school term times, only in the care of Ms Wheelan for one night a fortnight, not two. He stated that the night is most usually Friday night each fortnight. Mr Wheelan agreed that there are other nights when the eldest child is in the care of Ms Wheelan but that there is no pattern to the additional night. It just depends on the child’s commitments. He does not agree that the care pattern is two nights per fortnight.
The Tribunal considered the statements of the parents. The Tribunal found both Ms Wheelan and Mr Wheelan to be genuine and credible and the Tribunal accepts their evidence as reliable and honest. The Tribunal finds that the pattern of care of the two younger children is 50/50 to each of the parents over a 12 month care period commencing from 23 March 2019. While there were some initial adjustments regarding the care arrangements, the care became established into a 50/50 care arrangement quite promptly after the commencement of the child support assessment on 23 March 2019. The Tribunal finds that the 50/50 care is configured for child support purposes as 51% (183 nights) to Mr Wheelan and 49% (182 nights) to Ms Wheelan.
In relation to the eldest child the Tribunal finds that the pattern of care is that Ms Wheelan has care one night per fortnight and half of the school holidays. This equates to 62 nights per year over a 12 month care period (one night per fortnight in school terms = 20 + half of all school holidays = 42. Total = 62 nights) commencing from 23 March 2019. This equates to 16% care to Ms Wheelan and 84% care to Mr Wheelan. The lower percentage of care is rounded down in accordance with section 54D of the Assessment Act.
The Tribunal acknowledges that Ms Wheelan does on occasions have additional care of the eldest child. However, the Tribunal is satisfied that there is no regular pattern to the additional nights and therefore that the additional nights cannot be counted as part of the care pattern. The Tribunal also acknowledges that older children are often quite self-directed and somewhat unpredictable in their care arrangements with their parents and that establishing a very regular pattern of care is not always possible.
Therefore the Tribunal concludes that the percentages of care in relation to the two younger children are 51% to Mr Wheelan and 49% to Ms Wheelan and the percentages of care in relation to the eldest child are 16% to Ms Wheelan and 84% to Mr Wheelan.
In the administrative formula, a parent’s notional contribution to the costs of the children by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

The Tribunal’s determination will result in relation to the two younger children in Ms Wheelan having a care percentage of 49% and a cost percentage of 50% and Mr Wheelan having a care percentage of 51% and a cost percentage of 50%; and in relation to the eldest child with Ms Wheelan having a care percentage of 16% and a cost percentage of 24% and Mr Wheelan having a care percentage of 84% and a cost percentage of 76% from the care period commencing 23 March 2019 being the date from which the child support assessment for the child commenced.
Accordingly, the Tribunal finds that these are the percentages of care that apply to the new application for an administrative assessment in accordance with subparagraph 50(1)(a)(i) of the Assessment Act.

Date of effect

Where an objection to a care percentage decision is lodged outside the timeframe and the objection was disallowed, the date of effect of the objection decision is unaffected by section 87AA of the Registration and Collection Act which deals with the date of effect where the objection was allowed. However, on review by the Tribunal if the decision is changed, the Tribunal has to consider the implication of the late lodgement of the objection.
In this case, Ms Wheelan’s objection was recorded as being formally lodged on 28 May 2019 which is more than 28 days after the decision was made regarding care on 11 April 2019. In the Tribunal’s view however, it is satisfied that Ms Wheelan lodged her objection on 27 May 2019 (rather than 28 May 2019). Ms Wheelan in her letter of 27 May 2019 clearly stated “My actual objection is the care that has been given for the child support assessment, the nights/percentage is incorrect”. In the Tribunal’s view it was clear on 27 May 2019 that Ms Wheelan was objecting to the decision of 11 April 2019.
Subsection 43(6) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) allows the Tribunal to specify a date from which its decision should take effect.
The AAT Act does not elaborate on the factors which should be taken into account in specifying a date from which the decision should take effect. However, the Tribunal has had regard to the guidance provided by section 87AA of the Registration and Collection Act in circumstances where an objection is allowed and this has the effect of varying the determination to which the care percentage decision relates, or substituting a new decision, and in circumstances where the objection was lodged more than 28 days after notice of the care percentage decision was served. In those cases, the date of effect of the review decision is the day on which the person lodged the objection. In the Tribunal’s view, the specified date under subsection 43(6) of the AAT Act ought to usually reflect the limits that would have applied had the objection been allowed.
In Ms Wheelan’s case, her objection to the decision of 11 April 2019 was partly allowed but the objections officer failed to make a decision about whether any special circumstances prevented Ms Wheelan from lodging her objection within 28 days of 11 April 2019. The Tribunal in any event has now set aside (in part) the decision of the Child Support Agency.
The Tribunal considered whether there were any special circumstances which prevented Ms Wheelan from lodging her objection at an earlier date.
The term “special circumstances” is not defined in the legislation. The Tribunal had regard to the Child Support Guide (the Guide). While the Tribunal is not bound by policy, the Full Federal Court decided in Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 that the Tribunal should take into account relevant government policy providing that it is not inconsistent with the provisions or objects of the legislation. The Guide at 4.1.8 outlines some considerations in regard to considering special circumstances in this context. It relevantly provides:
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…
In this case the Tribunal is satisfied that Ms Wheelan did not receive notification of the decision made on 11 April 2019. The Child Support Agency papers record that the letter of 11 April to Ms Wheelan was not sent to her. It has a notation at the top of the letter which states “Letter not sent to Ms Wheelan”. Ms Wheelan stated that she telephoned the Child Support Agency on 27 May 2019 because child support payments had been deducted from her pay. She stated that this was the first time she became aware of the child support registration. The Tribunal accepts that she was not contacted following Mr Wheelan’s application for a child support assessment and that she had no input into the decision of 11 April 2019. The Tribunal is satisfied that the first time that the Child Support Agency had any discussion with Ms Wheelan was when she called the Agency on 27 May 2019 after deductions were made from her pay. The officer noted that during the telephone call the officer updated Ms Wheelan’s contact information and obtained her address, contact number and email address.
The Tribunal finds that Ms Wheelan’s circumstances are special in that she was unaware that any decision had been made regarding care of the children and she did not receive notification of the original decision of 11 April 2019 due to the Child Support Agency not having an address for her. The Tribunal is satisfied that the late objection was not Ms Wheelan’s fault as she was unaware that a decision had been made on 11 April 2019 until 27 May 2019 when she saw deductions on her payslip.
In those circumstances the Tribunal finds that there were special circumstances which prevented Mrs Wheelan from lodging her objection prior to 27 May 2019.
Therefore the Tribunal concludes that, rather than applying from 27 May 2019 when Ms Wheelan’s objection was lodged, it would be appropriate, in all of the circumstances, for the Tribunal’s decision to take effect from 23 March 2019 being the date that Mr Wheelan applied for a child support assessment and the date from which the Child Support Agency’s decision (to accept the application for a child support assessment) took effect.

DECISION

[2019] AATA 5515

29 October 2019

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction