Whyte and Child Support Registrar (Child support)

[2019] AATA 689

Whyte and Child Support Registrar (Child support) [2019] AATA 689 (7 March 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2018/SC015544

APPLICANT:  Mr Whyte

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member F Hewson

DECISION DATE:  7 March 2019

DECISION:

The tribunal decided to set aside the decision under review and substitute its decision that from 31 January 2018 Mr Whyte’s percentage of care of the child was 89% and Ms [A]’s percentage of care was 11%.

The tribunal decided not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the tribunal’s decision is 3 December 2018.

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 the tribunal’s decision – whether there were special circumstances that prevented the application for review being lodged in time - special circumstances do not exist - tribunal decided not 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 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. Mr Whyte and Ms [A] are the parents of children, including a daughter aged 14 (the child), in respect of whom there is a child support assessment. This application is about the percentages of care for the child used in the child support assessment.

2. From 17 March 2016 the Department of Human Services – Child Support (the Department) recorded that Mr Whyte had a percentage of care of the child of 0% and Ms [A] had a percentage of care of 100% (the existing care).

3. On 1 February 2018, Mr Whyte advised the Department of a change in the care of the child, so that from 31 January 2018 he had a percentage of care of the child of 100% and Ms [A] had a percentage of care of 0%. Ms [A] did not dispute that the care had changed, but stated that she expected to have care of the child for most of the school holidays.

4. On 6 March 2018, the Department made a decision to make new percentage of care determinations for the child, to reflect that from 31 January 2018 Mr Whyte had a percentage of care of the child of 74% and Ms [A] had a percentage of care of 26%.

5. On 1 June 2018, Mr Whyte lodged an objection to the care decision of 6 March 2018. The objection was considered by an objections officer who, on 30 July 2018, disallowed the objection.

6. On 3 December 2018, Mr Whyte lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was heard on 7 March 2019. Mr Whyte spoke to the tribunal by conference telephone. Ms [A] did not apply to be a party to the application. The Child Support Registrar did not attend the hearing. As well as the evidence of Mr Whyte, the tribunal also had regard to the documents provided by the Department, a copy of which was also sent to the parties.

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child.

8.Subsection 54A(1) of the Act sets out how to work out the actual care, and extent of care, a person has of a child. It states:

(1)   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 the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

1. The issues for the tribunal to determine in this case are:

   ·Whether there should be a change to the percentages of care in respect of the child used in the child support assessment for the relevant period; and if so

   ·What percentages of care should be used; and

   ·What is the date of effect of the change?  

CONSIDERATION

1. A new determination of a percentage of care for a child must be made where an existing determination has been revoked and the Registrar, or the tribunal standing in the shoes of the Registrar, is satisfied that each person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care (sections 49 and 50 of the Act).

2. As set out above, the Department was notified on 1 February 2018 of a change in the care of the child from 31 January 2018. Mr Whyte advised that he expected to have 100% of the care of the child, and that Ms [A] would have 0% of the care. Ms [A] agreed that the care had changed, but advised the Department that she expected to have care of the child for most of the school holidays, and that she had worked out she would have 96 nights care. On 6 March 2018 the Department recorded that Mr Whyte stated that he was happy to accept the assessment of the care, but he would monitor the care to ensure that it occurs. On 6 March 2018 the Department made its decision to make new care determinations to reflect that Mr Whyte had 74% of the care and Ms [A] had 26% of the care, with effect from 31 January 2018.

3. At the hearing Mr Whyte said there was no discussion in relation to Ms [A] having school holiday care until after the child entered his care. He did not speak to Ms [A] directly, but discussed it with the child, who had spoken to Ms [A]. He said the expectation was that the child would spend half of the school holidays with Ms [A]. He said he has never stopped the child spending time with Ms [A], and in fact has gone to considerable trouble and expense in relation to her travel interstate so the care can occur. He disagreed that he ever agreed that it was likely that Ms [A] would have all of the school holiday care. Mr Whyte said Ms [A] had about half of the school holiday care in 2018, including from 19 December 2018 to 31 December 2018. He referred to flight itineraries for the child, which indicate she travelled from [City 1] to [City 2] [in] April 2018 and returned [in] April 2018, and she travelled from [City 3] to [City 2] [in] October 2018 and returned [in] October 2018. He said the child also stayed with Ms [A] for additional nights when she had to have [treatment]. Mr Whyte said he calculated that in 2018 the child was in Ms [A]’s care for 41 nights.

4. The tribunal did not have the opportunity to speak to Ms [A]. She was invited to be a party to the application, but did not respond to the invitation. There is no information in the documents to support that Ms [A] was likely to have 96 nights of care of the child, apart from her own statement to that effect. It was recorded that Ms [A] stated that she would “have most of the school holiday care and a couple of additional nights”. As all of the school holidays amount to about 84 nights, it is not clear how Ms [A] calculated 96% of care, based on her own statement. As the child was primarily in Mr Whyte’s care, was living interstate, and there was no discussion or agreement between the parents about the holiday care, and the child was apparently travelling at Mr Whyte’s expense, there seems little reason to accept that it was likely that Ms [A] would accept the extent of the care assessed in circumstances where Mr Whyte did not accept that it was likely to occur. It was Mr Whyte’s evidence that when the child came into his care he expected that she would spend some time with Ms [A], and based on his discussions with the child, who had spoken to Ms [A] about the matter, he expected that time to be about half of the school holiday care, which is about what has occurred.   Having regard to the available evidence, the tribunal concluded that the pattern of care for the child that was likely in the care period from 31 January 2018 to 30 January 2019 was for Mr Whyte to have a percentage of care of 89% and Ms [A] to have a percentage of care of 11%.

5. The provisions applying in relation to the revocation of a determination of a person’s percentage of care are in Subdivision C of Division 4 – Percentage of Care, of Part 5 of the Act. Section 54F is relevant in this case. It provides that the registrar must revoke the existing care determinations if the care of a child that is actually taking place does not correspond with a person’s existing percentage of care for the child; if an exception to the use of actual care in sections 51 or 52 applied, the interim period has ended; and if care was determined on the basis of the actual care, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Act) would apply; and section 54G doesn’t apply.

6. In this case, the tribunal found that there were existing percentage of care determinations made under sections 49 and 50 in relation to the child, and that the Registrar was notified that the actual care of the child did not correspond with the percentage of care in the existing care determinations from 31 January 2018. The tribunal was satisfied that an interim period under sections 51 or 52 does not apply in this case and section 54G does not apply.

7. The tribunal accepted that, at the date of notification of the change in the care, 1 February 2018, it was likely that Mr Whyte’s percentage of care of the child in the care period was likely to be a percentage of care of 89% and Ms [A]’s percentage  of care was likely to be 11%.

8. The tribunal decided that it is appropriate in the circumstances of this case to revoke the existing determinations of the percentages of care for the child under section 54F of the Act. Subsection 54F(3) of the Act sets out when the revocation of the determination takes effect. The date of effect depends on whether the Department was notified of the change within 28 days after it occurred. The tribunal found that notification of the change in care was made within 28 days of 31 January 2018 and, therefore, revocation of the existing determinations takes effect in accordance with subsection 54F(3), on 30 January 2018, being the day before the change in care.

9. As the existing determinations have been revoked, new determinations of Mr Whyte’s and Ms [A]’s care, under section 50 of the Act, must be made. To make new determinations, the actual care of the children that was likely to occur during the care period (in this case from 31 January 2018 to 30 January 2019) must be considered. The tribunal determined that Mr Whyte’s percentage of care of the child was likely to be 89% and Ms [A]’s percentage of care was likely to be 11%, with effect from 31 January 2018.

10. The tribunal considered the date of effect of its decision. There are a number of provisions which are relevant in this case, taking into account that Mr Whyte lodged his objection to the original decision on 1 June 2018, which was more than 28 days after he received notice of the decision dated 6 March 2018, and he lodged his application to the Administrative Appeals Tribunal on 3 December 2018, which was more than 28 days after he was given notice of the objection officer’s decision of 30 July 2018.

11. Mr Whyte said he could not object to the original decision until after a school holiday period had occurred. He lodged his objection in June 2018 and advised that there was no way that Ms [A]’s care could get to 96 nights. In relation to the delay in lodging his application with the tribunal, Mr Whyte said he didn’t understand his options. He thought the care would be reassessed at the end of the year. He said he couldn’t really recall exactly what was happening at the time.

12. The tribunal was satisfied that Mr Whyte’s delay in lodging his objection and in lodging his application to the tribunal were not due to special circumstances for the purpose of sections 87AA or 95N of the Act. In the circumstances, section 95N is operative in this case and the date of effect of the tribunal’s decision is 3 December 2018, being the date on which Mr Whyte lodged his application. This means that although the tribunal’s decision is favourable to Mr Whyte, it will only apply to the assessment of his child support from 3 December 2018.

DECISION

The tribunal decided to set aside the decision under review and substitute its decision that from 31 January 2018 Mr Whyte’s percentage of care of the child was 89% and Ms [A]’s percentage of care was 11%.

The tribunal decided not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the tribunal’s decision is 3 December 2018.