Wiltshire and Child Support Registrar (Child support)

Wiltshire and Child Support Registrar (Child support) [2019] AATA 6621 (20 December 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/PC017327
APPLICANT:  Ms Wiltshire
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Senior Member R Ellis
DECISION DATE:  20 December 2019
DECISION:

(a) The Tribunal sets aside the decision under review and, in substitution, decides that Ms Wiltshire has 14 per cent care and Mr [A] has 86 per cent care of [Child 1] and [Child 2] from 14 August 2018.

(b) The Tribunal declines to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988 with the consequence being the date of effect of the decision in (a) above is 4 September 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of notification of the care change - existing percentage of care determinations revoked and new determinations made - decision under review set aside and substituted - whether there were special circumstances that prevented the objection being lodged in time – no special circumstances

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

This review is about a change to the percentage of care determinations for Ms Wiltshire and Mr [A] in respect of the children [Child 1] and [Child 2].
Ms Wiltshire and Mr [A] are the parents of [Child 1] (born April 2007) and [Child 2] (born November 2010). The child support assessment commenced on 25 September 2013 and Ms Wiltshire is the liable parent under the assessment.
From 30 May 2015 the child support assessment reflected Ms Wiltshire as having 0 per cent care of [Child 1] and [Child 2] and Mr [A] as having 100 per cent care.
[In] August 2018 Ms Wiltshire notified the Department of Human Services, Child Support (the Child Support Agency) there had been a change of care stating that she had 14 per cent care and Mr [A] had 86 per cent care of the children from 1 October 2015. [Later in] August 2018 Ms Wiltshire confirmed that care actually changed from 1 October 2016.
[In] October 2018 the Child Support Agency made the decision to refuse to accept the change of care as advised by Ms Wiltshire.
[In] January 2019 Ms Wiltshire objected to this decision and [in] March 2019 the Child Support Agency disallowed the objection (the objection decision).
On 4 September 2019 Ms Wiltshire applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.
The Tribunal conducted a hearing into the application on 5 December 2019. Ms Wiltshire attended the hearing in person and gave sworn evidence. The Tribunal wrote to Mr [A] on 12 September 2019 inviting him to be added as a party to the application for review but he did not respond. Mr [A] did not participate in the hearing. The Child Support Agency provided the Tribunal and Ms Wiltshire with papers relevant to the matter (452 pages). Additional documents were received from Ms Wiltshire prior to the hearing (A1 to A5).
At hearing the Tribunal agreed to allow Ms Wiltshire to provide further evidence in relation to her care of the children. This was received on 9 December 2019 (A6-A11).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).[1]
[1] As it applied prior to 23 May 2018 and 1 July 2018.
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.
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 the likely care is thereafter. The task of the Tribunal on review is the same.
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.
The issues which arise in this case are:
· has there been a change in the pattern of care for [Child 1] and [Child 2] 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

Ms Wiltshire told the Tribunal that her care of the children was decided in discussion with Mr [A] in accordance with a court order. Ms Wiltshire said she commenced having consistent overnight care one night per week from 1 October 2016 after Mr [A] agreed she was able to provide a stable home environment for [Child 1] and [Child 2].
Ms Wiltshire explained that she was in rehabilitation for approximately six months from October 2015 and had no care of the children. Ms Wiltshire said she then moved in with her mother from approximately March 2016 and started seeing the children regularly during the week. Ms Wiltshire said she would pick up [Child 1] and [Child 2] from school on a Wednesday and spend time with them but did not have overnight care at that stage. Ms Wiltshire said it was only after moving in with her sponsor, Ms [B] that she was able to demonstrate to Mr [A] she had her own accommodation and her behaviour had changed. She said Mr [A] then agreed she could have overnight care.
Ms Wiltshire said Ms [B] had been recommended as her sponsor as part of her rehabilitation program. She said Ms [B] had her own children and the accommodation they shared together was very family friendly. Ms Wiltshire added this was a long-term arrangement that continued until approximately August 2017.
The Tribunal notes in evidence a copy of a court order dated [November] 2014 in relation to care of [Child 1] and [Child 2]. The court order states the children spend time with Ms Wiltshire “as agreed between the parties from time to time.”
Ms Wiltshire told the Tribunal that once Mr [A] had permitted her overnight care she had regular care of [Child 1] and [Child 2] every Friday night. She said this was in addition to her after-school care on a Wednesday. Ms Wiltshire said the practical arrangements for her care of the children were made with Ms [A], Mr [A]’s wife, either verbally or by text message. Ms Wiltshire said when she dropped the children home to their father on a Wednesday she would usually discuss with Ms [A] the care arrangements for the coming Friday night. Ms Wiltshire said sometimes the care would change to a Saturday night if the children had a family event on the Friday night or had other plans.
Ms Wiltshire said when the children came to stay with her she would pick them up from school or from Mr [A]’s home. She said she was responsible for the children and would cook for them and take them to sport on a Saturday morning if required. Ms Wiltshire said she would drop the children back to their father’s on a Saturday around 3:00 pm.
Ms Wiltshire told the Tribunal she had provided statements from third parties and copies of text messages to the Child Support Agency to show that she did have overnight care of the children from 1 October 2016 but felt these had not been fully considered. Ms Wiltshire said the text messages were mostly with Ms [A] and confirmed she had overnight care but she acknowledged they were from 2017, 2018 and 2019 and did not show care in 2016.
The Tribunal notes in evidence from the Child Support Agency third party statements in relation to the care of [Child 1] and [Child 2] from Ms [B] dated [August] 2018, Ms [C] dated [August] 2018 and Mr [C] dated [January] 2019. There are additional third party statements, however, these are not directly relevant to care of the children from 1 October 2016.
The statement from Ms [B] confirms that while living with her Ms Wiltshire had care of the children “on a consistent and routine basis between October 2016 through August 2017” and the frequency of care was “on a weekly basis for sleepover stays”. The statement also says Ms Wiltshire was responsible for supplying and preparing all the food during these periods of care as well as bedding and a majority of the clothing for the children.
The statement from Ms [C], Ms Wiltshire’s mother, deals primarily with care of the children from August 2017, however, it includes the comment that prior to 2017 Ms Wiltshire was caring for the children “on a consistent and routine basis at [Ms B]’s house since the previous year.” The statement from Mr [C], Ms Wiltshire’s stepfather, also states that Ms Wiltshire picked up the children from Mr [A] and from school for sleepovers and outings “from approximately October 2016”.
Ms Wiltshire told the Tribunal that it was difficult for her to find text messages relating to care from 2016 as she had since changed phones and lost most of her data. The additional evidence provided by Ms Wiltshire on 9 December 2019 included several text message exchanges with either Mr [A] or Ms [A] relating to her care of the children. Ms Wiltshire told the Tribunal in an accompanying email that while the earliest of the text messages was from November 2016 she thought they nonetheless illustrated that a pattern of overnight care had already been established.
In one text message exchange dated [November] 2016 Ms [A] says, “Have just found kids didn’t pack pjs if you want to swing past and grab them” to which Ms Wiltshire responds, “It’s OK I will find something for them to wear. I have heaps of jocks n tops n tights here”. In another exchange dated [December] 2016 Ms [A] states, “we have a full-day class next Saturday (last one) so may be good for you to have them overnight Fri”. In a third exchange dated [later in] December 2016 Mr [A] asks, “Where are girls staying Christmas night and who else is staying there?” to which Ms Wiltshire responds “Just me at mine if that is OK?”
Although Mr [A] did not participate in the hearing the Tribunal notes that during a conversation with the Child Support Agency [in] September 2018 Ms [A], as his child support representative, confirmed the children did stay overnight with Ms Wiltshire on occasion when Ms Wiltshire was living with Ms [B]. Both Mr [A] and Ms [A] provided statements to the Child Support Agency [in] September 2018 although neither of these statements relate directly to the period of care from 1 October 2016. Mr [A] does state, however, that Ms Wiltshire started to have “some overnight time” with the children approximately a year after she left rehabilitation.
Ms Wiltshire has told the Tribunal her care of [Child 1] and [Child 2] changed on 1 October 2016 when she commenced having regular overnight care one day per week. The third-party statements provided by Ms Wiltshire tend to support her contention. The Tribunal places particular weight on the third-party statement from Ms [B] who shared accommodation with Ms Wiltshire from October 2016 to August 2017. Ms [B] confirms that Ms Wiltshire had weekly overnight care from October 2016. Ms Wiltshire has also provided text message exchanges with Mr [A] and Ms [A] from November and December 2016 which, while not confirming the level of care or the date that care changed, do show she was having some overnight care at that time. Mr [A] did not participate in the hearing. Evidence provided to the Child Support Agency by his child support representative, Ms [A], confirms that Ms Wiltshire did have overnight care during her time with Ms [B] but only on occasion.
On balance the Tribunal is satisfied care of [Child 1] and [Child 2] changed on 1 October 2016. The Tribunal finds, based on the evidence provided, that Ms Wiltshire has 14 per cent care (52 nights per year) and Mr [A] has 86 per cent care of [Child 1] and [Child 2] from 1 October 2016.
The existing percentage of care reflected in the assessment for [Child 1] and [Child 2] was 0 per cent to Ms Wiltshire and 100 per cent to Mr [A] from 30 May 2015. 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.
The Tribunal finds that the date of notification of the change of care was 14 August 2018 which is more than 28 days after the change occurred on 1 October 2016. As section 54F of the Act is met, the Tribunal finds the previous determination must be revoked on 13 August 2018 in accordance with paragraph 54F(2)(c) of the Act.

New care percentage decision

Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Ms Wiltshire and Mr [A] under section 50 of the Act.
For the reasons outlined above the Tribunal finds that Ms Wiltshire provides 14 per cent care and Mr [A] provides 86 per cent care of [Child 1] and [Child 2] from 14 August 2018.

Date of effect of new care percentage decision

Section 95N of the Child Support (Registration and Collection) Act 1988 determines the date of effect of a Tribunal decision to set aside a care percentage decision. Ms Wiltshire applied to the Tribunal on 4 September 2019 for a review of the [March] 2019 objection decision by the Child Support Agency. As her application was not within 28 days of receiving notice of this decision, the date of effect of any new decision by the Tribunal is the date she applied for review.
The Tribunal may extend the 28 days if there are special circumstances that prevented Ms Wiltshire from applying for review within this period. While the Child Support (Registration and Collection) Act 1988 does not define ‘special circumstances’, in relation to a similar provision in subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, chapter 4.1.8 of the Child Support Guide provides some guidance 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.” Examples include the parent being seriously ill, suffering a personal trauma, a natural disaster causing damage to the parent’s property or communication difficulties.
In discussing this matter at hearing, Ms Wiltshire told the Tribunal she found the whole process very complicated and stressful. Ms Wiltshire said she was waiting for Mr [A] to send in his evidence before finalising her appeal. Ms Wiltshire also said she had called the Child Support Agency many times to discuss the matter and as soon as she was told to come to the Tribunal she did.
The Tribunal is not satisfied the events as described by Ms Wiltshire would have prevented her from making an earlier application for review. The notification of the objection decision provided by the Child Support Agency dated [March] 2019 outlines what to do if Ms Wiltshire disagreed with the decision. This includes asking the Tribunal to undertake a review within 28 days of the date she received that correspondence. The Tribunal also notes Ms Wiltshire was advised of her appeal rights during a conversation with a child support officer on [April] 2019 and again on [July] 2019. Her application to the Tribunal was not made until 4 September 2019.
The Tribunal finds there were no special circumstances preventing Ms Wiltshire from applying for review within the time frame prescribed. Accordingly the Tribunal will not extend the 28 day period and its decision is effective from the date of Ms Wiltshire’s application, being 4 September 2019.

DECISION

[2019] AATA 6621

20 December 2019

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Appeal

Statutory Construction

Remedies