Whetten and Conisbey (Child support)

Whetten and Conisbey (Child support) [2023] AATA 2166 (7 June 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2022/SC025042 & 2022/SC025279
APPLICANT:  Mr Whetten
OTHER PARTIES:  Child Support Registrar
Ms Conisbey

TRIBUNAL:Member M Baulch
DECISION DATE: 7 June 2023
DECISION:

The decision that there is to be an interim determination of the percentages of care for the period 13 April 2021 to 13 February 2022, pursuant to section 51 of the Child Support (Assessment) Act 1989, is affirmed.

The decision that the objection decision applies from 15 July 2022 is set aside. In substitution the tribunal decided, pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, that Mr Whetten be allowed until 15 July 2022 to make his objection, hence the objection decision applies from the date the original decision applied.

However, pursuant to subsection 95N(1) of the Child Support (Registration and Collection) Act 1988, the tribunal’s decision has effect from 15 November 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 – court orders not complied with – reasonable action taken – interim period applied – decision under review affirmed

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 – decision under review set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decision – late application for review – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines to make a determination under subsection 95N(2)

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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the ages and number of children and their percentages of care.
Mr Whetten and Ms Conisbey are the separated parents of [Child 1] and [Child 2]. Since 8 September 2014, Services Australia – Child Support (Child Support) has made administrative assessments of child support under the Act. Most recently, those assessments rendered Ms Conisbey liable to pay child support to Mr Whetten, on the basis that Mr Whetten and Ms Conisbey each had 50% care of [Child 1] and [Child 2].
On 19 May 2021, Ms Conisbey advised Child Support there had been a change to the care arrangements for the children, such that she had 100% care of [Child 1] and [Child 2]. That information was considered by a Child Support employee, who decided on 25 May 2021 that Mr Whetten should be recorded as having 0% care of the children, and Ms Conisbey as having 100% care. This decision resulted in Mr Whetten being assessed as liable to pay child support to Ms Conisbey from 19 May 2021.
Mr Whetten objected to that decision on 15 July 2022 and, on 26 September 2022, that objection was allowed. The objection officer decided that:
· There should be an interim care determination for the period 13 April 2021 to 13 February 2022, such that each parent was assessed as having 50% care of [Child 1] and [Child 2]; and
· There were no special circumstances that prevented Mr Whetten from making his objection within 28 days, such that the objection decision applied from 15 July 2022;
(the decisions under review).
On 15 November 2022, Mr Whetten applied to this tribunal seeking an independent review of Child Support’s decision.
A hearing into the applications for review was held by the tribunal on 7 June 2023. Mr Whetten discussed the applications for review with the tribunal by telephone and gave sworn evidence during the hearing. Neither Ms Conisbey nor a representative of the Child Support Registrar (the Registrar) participated in the hearing.
The tribunal had before it two bundles of relevant documents provided to it by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (428 and 427 pages), copies of which Mr Whetten confirmed he had received prior to the tribunal hearing. The tribunal also had regard to additional information provided by Mr Whetten, which was labelled folios A1 to A7.

ISSUES

The statutory provisions relevant to this review application are found within the Act.
The issues which arise in this case are:
·      Should there be an interim care percentage determination, such that the percentages of care applying in the child support assessment reflect the court-ordered care rather than the actual care taking place; and
·      Did special circumstances prevent Mr Whetten from making his objection to the care percentage decision made on 25 May 2021 within 28 days; and if so
·      Did special circumstances prevent Mr Whetten from applying to this tribunal within 28 days of receiving notification of the objections officer’s decision?

CONSIDERATION

Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their children during a care period.
Since 9 February 2021, the percentages of care that have applied in the child support assessment have recorded Mr Whetten as having 50% care of [Child 1] and [Child 2] and Ms Conisbey as having 50% care. These care percentages reflect the care occurring under a court order that has applied since 15 February 2021.
It was undisputed that the court order had been followed until 13 April 2021, and from that date Mr Whetten had no care of either of the children. I was therefore satisfied, and so found, that Mr Whetten had 0% care of [Child 1] and [Child 2], and Ms Conisbey had 100% care, from 13 April 2021.

Should there be an interim care percentage determination, such that the percentages of care applying in the child support assessment reflect the court-ordered care rather than the actual care taking place?

Usually, the Registrar will determine a pattern of care based upon the extent of the actual care that each parent has of their child.
However, this may not apply if a care arrangement applies, and that care arrangement is not being complied with (see section 51 of the Act). A care arrangement is a formal arrangement about the care of a child and includes a written agreement, court order or parenting plan.[1] I was satisfied that the court order dated 15 February 2021 constitutes a care arrangement in respect of [Child 1] and [Child 2] and it had been complied with until 13 April 2021. I therefore considered if section 51 of the Act should be applied in this case.
[1] See section 5 of the Act and section 3 of the A New Tax System (Family Assistance) Act 1999.
Section 51 of the Act says that a care determination may be made (known as an “interim determination”) if a care arrangement, such as a court order, is not being complied with and the parent with reduced care takes “reasonable action” to have the court order complied with. What constitutes reasonable action is not defined in the Act, but government policy in this regard is set out in the Child Support Guide (the Guide), which states, at 2.2.4, that reasonable action could include:[2]
·      Negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement.
·      Making and/or attending an appointment at a Family Relationship Centre or other dispute resolution service with the aim of ensuring the care arrangement is adhered to.
·      Seeking or obtaining legal advice regarding the making of a court order.
·      Filing an application to a court to have an order made or enforced.
·      Attending a hearing at court to seek an order to be made or enforced.
·      Notifying the police that the child has been taken without consent.
I am not bound by policy as set out in the Guide. However, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan, J held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, I accepted the policy is unobjectionable and, in the interests of consistency in decision making under the Act, considered that this policy should be applied.
[2] Department of Social Services, Guides to Social Policy Law, Child Support Guide, version 4.71 – can be found at >
The evidence shows that Mr Whetten contacted Ms Conisbey via email to attempt to resolve issues with care. There is also evidence that he took legal advice and filed a contravention application in the Federal Circuit Court of Australia, as it then was, on 10 August 2021. While that application was withdrawn under consent orders dated 12 May 2022, Mr Whetten’s evidence was that those proceedings are still on foot.
Having considered the evidence, I was satisfied that Mr Whetten took reasonable action to have the court order dated 15 February 2021 complied with and that action continues.
As a consequence, subsection 51(2) of the Act requires that two percentages of care be determined – one being the care that should have occurred under the care arrangement (the court order) and the other being the care actually taking place. In this instance, I concluded that those percentages of care would be:
· Care according to the court order – 50% for Mr Whetten and 50% for Ms Conisbey (pursuant to subsection 51(3) of the Act); and
· Care that was actually occurring – 0% for Mr Whetten and 100% for Ms Conisbey (pursuant to subsection 51(4) of the Act).
Subsection 51(5) of the Act provides that, if special circumstances exist, a single percentage of care – rather than two percentages of care – may be determined based upon the actual care taking place. The meaning of special circumstances is not defined in the Act, but is described in the Guide, which states:
Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person's own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from an interim period, even if they are seeking the return of the child.
Ms Conisbey had provided Child Support with evidence that [Child 1] was receiving treatment for mental ill-health, and Child Support records indicate that Ms Conisbey submitted that this was special circumstances which justified the court order not being followed.
While there is evidence that [Child 1] suffers from a mental health condition, there is no evidence to support the suggestion that [Child 1]’s treating health practitioners have recommended that [Child 1] not spend time with Mr Whetten. Having considered the evidence, I was not persuaded that there were special circumstances present which justified the court orders not being complied with.
Therefore, percentages of care reflecting the court-ordered care are to be applied for an interim period. The interim period commences on the date that the court order ceased to be followed, which is 13 April 2021.
Section 53A of the Act provides a table for working out the end date for the interim period. The end date specified in that table is dependent on whether the parent with increased care, in this case that is Ms Conisbey, have themselves taken reasonable action to participate in family dispute resolution. There is no evidence that Ms Conisbey herself made any effort to participate in family dispute resolution.
Mr Whetten submitted that the interim period should apply for a period longer than 13 February 2022. He stated that limiting the length of an interim period in such a way rewards Ms Conisbey when she is failing to comply with the court orders of 15 February 2021.
The table in section 53A of the Act provides that the maximum length of an interim period, where the care arrangement is a court order, is either 26 weeks from the date the court order ceased to be complied with, or 52 weeks from the date the court order was made. In this case, the length of the interim period is 52 weeks from the date the court order took effect. This was on 15 February 2021 and thus the interim period applies until 13 February 2022. Section 53A of the Act provides no discretion for a longer interim period to apply.
As I have found that an interim determination applies, section 54C of the Act sets out that the percentage of care determined pursuant to the court order applies for the interim period. I therefore found that the care percentage determinations that should apply to the child support assessment for [Child 1] and [Child 2], pursuant to section 51 of the Act, are as follows:
· From 13 April 2021 to 13 February 2022, Mr Whetten should be recorded as having 50% care of [Child 1] and [Child 2] and Ms Conisbey as having 50% care.
Therefore, I decided to affirm the decision to make an interim determination of the percentages of care for the period 13 April 2021 to 13 February 2022.

Did special circumstances prevent Mr Whetten from making his objection to care percentage decision made on 25 May 2021 within 28 days?

There is no time limit within which a person must lodge an objection against a care percentage decision. However, if the person makes their objection more than 28 days after the date the notice of the decision is served upon them, and they are successful in their objection, the objection decision has effect from the date they made their objection pursuant to subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).
This is the case unless there are special circumstances that prevented the person from lodging the objection within 28 days, in which case the Registrar (or myself standing in the Registrar’s shoes) has the discretion to treat the reference to 28 days in subsection 87AA(1) of the Act as a reference to a longer period as determined to be appropriate (subsection 87AA(2) of the Registration and Collection Act refers).
The decision against which Mr Whetten objected was made on 25 May 2021, and Mr Whetten made his objection on 15 July 2022. Mr Whetten did not dispute that he made his objection more than 28 days after the notice of the decision made on 25 May 2021 was served upon him. Therefore, the objections officer’s decision applies from 15 July 2022, unless special circumstances prevented Mr Whetten from objecting within 28 days, rendering the objections officer’s decision nugatory in terms of the application of the decision to the child support assessment.
The legislation does not define special circumstances. For assistance, I had regard to the Guide at 4.1.8, which describes special circumstances thus:
Special circumstances
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 the date of the original decision. Some examples of special circumstances may include:
·the parent was seriously ill or had an accident that stopped them from lodging an objection
·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.
If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (CSRC Act section 87AA(2)). The Registrar will consider if:
·the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension create a significant overpayment or significant arrears of child support?
·the applicant rested on their rights, as they did not take any action prior to lodging the objection. For example, did the applicant make any efforts to lodge the objection earlier, communicate to Services Australia that the decision was being contested or raised their concerns in other ways - for example, a complaint to Services Australia or the Ombudsman?
If the Registrar makes a determination under CSRC Act section 87AA(2) to extend the period in which to lodge the objection, then the objection is considered to have been received within the prescribed timeframe. The objection decision will then replace the original care percentage decision from the first day that original decision had effect.
As previously noted, I am not bound by such policy. However, in this instance, I accepted the policy is unobjectionable and, in the interests of consistency of decision making under the Act, considered that this policy should be applied.
Mr Whetten’s evidence was that when Child Support contacted him about the change in care, he indicated that there were court orders in place, but confirmed that the care actually taking place was 100% to Ms Conisbey. Mr Whetten said he asked three times, in different ways, if he could appeal against any decision to apply a percentage of care of 0% to him due to having court orders and he was advised that unless the care was other than 0%–100% he could not object.
Mr Whetten told me he accepted that advice as correct, despite the letter sent on 25 May 2021 detailing his right to make an objection. He accepted that an objection was not likely to be successful until he spoke to a different Child Support employee in July 2022, who told him about interim care decision was an option. As a consequence of this advice, Mr Whetten made his objection straight away.
I found Mr Whetten to be an honest and credible witness and I accepted that he relied on misleading information that there was little utility in making an objection unless care occurring was not 0%–100%. Mr Whetten opined that the care percentages applying in the child support assessment rewarded Ms Conisbey for not complying with the court orders, and I concluded that if Mr Whetten had been aware that he could object, and seek a care percentage decision that reflected the court orders, he would have done so earlier.
I accepted that Mr Whetten may have been misled by information provided to him by a Child Support employee about the utility of making an objection, such that he was persuaded not to do so. This can be seen as a special circumstance weighing in favour of exercising the discretion provided for in subsection 87AA(2) of the Registration and Collection Act.
I noted that Mr Whetten made his objection as soon as he was aware that there was potential for an interim care percentage determination to be made, and I concluded that he did not rest on his rights by delaying in contacting Child Support and making his objection. I noted that a decision to exercise the discretion provided for in subsection 87AA(2) of the Registration and Collection Act may result in Ms Conisbey incurring child support arrears or having a child support overpayment. Ms Conisbey decided not to avail herself of the option of participating in the hearing, so I have received no submissions that I should give any potential arrears that might arise any weight in my decision making.

I therefore decided to make a determination under subsection 87AA(2) of the Registration and Collection Act. This means that the date from which the objection decision has effect is 13 April 2021.
I therefore decided to set aside the decision that the objection decision had effect from 15 July 2022. I substituted my own decision that Mr Whetten be allowed until 15 July 2022 to make his objection.

Did special circumstances prevent Mr Whetten from applying to this tribunal within 28 days of receiving notification of the objections officer’s decision?

Even though I have decided that a determination pursuant to subsection 87AA(2) of the Registration and Collection Act should be made in this case, that decision will have no effect unless I exercise the discretion available under subsection 95N(2) of the Registration and Collection Act.
This is because while there is no time limit on a person lodging an application for review, with this tribunal, of a decision on objection relating to the determination of a percentage of care. However, if an application to this tribunal is made more than 28 days after the notice of the objection decision was served upon the person, and the tribunal’s decision is to vary or substitute a decision on that objection, the tribunal’s decision only takes effect from the day the application for review was made unless there are special circumstances that prevented the application from being made within that 28-day period, such that a determination is made pursuant to subsection 95N(2) of the Registration and Collection Act.
In this case, the objection decision was made on 26 September 2022 and Mr Whetten applied to this tribunal on 15 November 2022. Mr Whetten did not dispute that he applied to this tribunal more than 28 days after he received notification of the objection decision. Mr Whetten did not dispute that the letter sent to him on 26 September 2022 with the objection decision detailed his right to have the decision reviewed by this tribunal and the 28-day limit on such applications and he stated that he must have misread that letter.
Mr Whetten advised me that his failure to make his application to this tribunal within 28 days was his own fault. He was preparing to make another objection against the objection decision, and it was only when he was told by Child Support that such an objection was not valid, and he could apply to the tribunal, that he ultimately did so.
I was not persuaded that Mr Whetten’s failure to properly read the letter sent with the objection decision constitutes special circumstances that prevented Mr Whetten from making his application to this tribunal within 28 days.
I therefore decided that the discretion provided for in subsection 95N(2) of the Registration and Collection Act is not to be exercised in Mr Whetten’s favour. This means the date from which my decision applies is prescribed by subsection 95N(1) of the Registration and Collection Act and is 15 November 2022. This means that my decision to set aside the decision about the date from which the objection decision has effect, will have no impact on the child support assessment.

DECISION

However, pursuant to subsection 95N(1) of the Child Support (Registration and Collection) Act 1988, the tribunal’s decision has effect from 15 November 2022.

[2023] AATA 2166

7 June 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction

Judicial Review