Zanetti and Antonelli (Child support)

[2020] AATA 2679

Zanetti and Antonelli (Child support) [2020] AATA 2679 (2 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018675

APPLICANT:  Mr Zanetti

OTHER PARTIES:  Child Support Registrar

Ms Antonelli

TRIBUNAL:Member M Douglas

DECISION DATE:  2 June 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

1. The existing care percentages for [Child 1] are revoked pursuant to subsection 54F(1) of the Child Support (Assessment) Act 1989, with effect on 22 May 2019 in accordance with paragraph 54F(3)(a).

2. Pursuant to subsection 50(2) of the Child Support (Assessment) Act 1989, Mr Zanetti’s percentage of care for [Child 1] is 36% and Ms Antonelli’ percentage of care is 64%.

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 – 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 exist - the date of effect of the tribunal’s decision is the date the change of care occurred.

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

1. This is a review of an objection decision a delegate of the Child Support Registrar made on 28 February 2020 regarding the care percentages of Mr Zanetti and Ms Antonelli’s daughter, [Child 1].

2. The Child Support Registrar acts through the Department of Human Services – Child Support, which is now known as Services Australia.  It is convenient to refer to the Child
   Support Registrar and the Registrar’s delegates who have made the decisions relevant to this matter, as the Department. 

3. It is necessary to narrate the circumstances relevant to both the objection decision the Tribunal is presently reviewing and also an earlier objection decision the Department made on 20 June 2019 so as to provide context for, and thereby comprehend properly, the objection decision the Tribunal is presently reviewing. 

4. On 5 November 2018, orders were made by the Federal Circuit Court of Australia with the consent of Mr Zanetti and Ms Antonelli, that stipulated when [Child 1] would reside with Ms Antonelli and when she would spend time with Mr Zanetti.  Those orders allowed for an increase in the time [Child 1] would spend with Mr Zanetti from 9 May 2019, subject to Mr Zanetti providing Ms Antonelli with a copy of his then lease and a photograph of the bedroom in which [Child 1] would sleep. 

5. On 11 December 2018, Mr Zanetti contacted the Department and informed the Department of the change in [Child 1]’s care that had occurred on 8 November 2018 with orders that were made on that day.  On 2 January 2019 the Department made the following decisions, in response to Mr Zanetti’s notification of 11 December 2018:

   a.    Revoked Ms Antonelli’s existing care percentage for [Child 1], which was 72%, with effect on 7 November 2018;

   b.    Determined Ms Antonelli’s care percentage for [Child 1] as 60% from 8 November 2018;

   c.     Revoked Mr Zanetti’s existing care percentage for [Child 1], which was 28%, with effect on 10 December 2018;

   d.    Determined a new care percentage for Mr Zanetti of 40% from 11 December 2018;

6. Ms Antonelli lodged an objection to those decisions on 7 February 2019.

7. The Department spoke with both Mr Zanetti and Ms Antonelli regarding Ms Antonelli’s objection to its decision of 2 January 2019. 

8. With respect to Mr Zanetti, the Department spoke with him on 8 May 2019 and again on 20 June 2019, with that latter conversation seemingly occurring immediately before the Department made its decision on that date with respect to Ms Antonelli’s objection.  In the conversation between the Department and Mr Zanetti on 8 May 2019, Mr Zanetti told the Department that as from 9 May 2019, that is the day following this conversation, [Child 1] would be spending an additional night with him each fortnight during school terms.  In his conversation with the Department on 20 June 2019, Mr Zanetti advised the Department that “care did not commence on 9 May 2019 as Ms Antonelli had refused to allow him access as per the orders”.  The Department records him as also saying that he would “commence having the additional Thursday night care from Thursday 23 May 2019”.

9. The Department’s objection decision on 20 June 2019 was to allow Ms Antonelli’s objection.  The Department restored the care percentages that were extant immediately before its decision of 2 January 2019. 

10. For the sake of clarity, the Tribunal observes that within the reasons the Department published to the parties for this decision, the Department recorded finding “that the care of [Child 1] had remained as 28% to Mr Zanetti and 72% to Ms Antonelli from November 2018” which is what was reflected in the letters that the Department issued to Ms Antonelli and Mr Zanetti with the amended assessments.  Confusingly however, the Department also said on the front page of its objection decision that “we have made the decision to reflect the care of [Child 1] as 76% to Ms Antonelli and 24% to Mr Zanetti from 8 November 2018”.  Those percentages were clearly typographical errors.

11. Be that as it may in this objection decision the Department also said:

    A subsequent care change occurred for [Child 1] as stated by Mr Zanetti on 20 June 2019 as part of the objection process.  Mr Zanetti advised his level of care for [Child 1] has increased to four nights per fortnight and half the school holidays from 23 May 2019.  Ms Antonelli confirmed this additional new level of care.  A separate decision will be made outside of this objection process to reflect the care of [Child 1] as four nights per fortnight to Mr Zanetti and half the school holidays from 23 May 2019.

12. The Department indeed posted letters on 20 June 2019 advising Mr Zanetti and Ms Antonelli to the effect that it had:

    a.revoked Ms Antonelli’s existing percentage of care of 72% with effect on 22 May 2019 and determined a new care percentage for her of 67% from 23 May 2019;

    b.revoked Mr Zanetti’s existing percentage of care of 28% with effect on 22 May 2019 and determined a new percentage of care for him of 33% from 23 May 2019.

13. Mr Zanetti then applied to the Tribunal for a review of the Department’s objection decision of 20 June 2019.  His purpose however was not to have the Tribunal review the objection decision by which the Department restored the percentages of 72% for Ms Antonelli and 28% for him, but rather to have the primary decision the Department also made on 20 June 2019 to revoke those care percentages with effect on 22 May 2019 and to determine new care percentages for him and Ms Antonelli that took effect on 23 May 2019.  The Tribunal on 17 September 2019 affirmed the Department’s objection decision of 20 June 2019 and in the document the Tribunal published to the parties recording its decision the Tribunal made the following note:

    For the sake of completeness the Tribunal notes that Mr Zanetti’s purpose in applying to the Tribunal was to challenge another decision of the Registrar that was also made on 20 June 2019 being that the care percentages for [Child 1] from 22 [sic:23] May 2019 as 67% for Ms Antonelli and 33% for him.  As explained to him at the hearing no objection has been made with respect to that decision, and accordingly, the Tribunal has no jurisdiction to review it.

14. On 20 September 2019 Mr Zanetti finally lodged an objection to the primary decision the Department made on 20 June 2019, as set out at [12].

15. On 28 February 2020 the Department disallowed his objection.

16. He then, on 19 March 2020, applied to the Tribunal for review of the Department’s objection decision of 28 February 2020. 

17. The Tribunal heard his application on 2 June 2020. He and Ms Antonelli attended by telephone. They each gave sworn oral evidence. The Department did not participate but did provide all documents relevant to its decision, in accordance with its obligation under subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

ISSUES

1. Both Mr Zanetti and Ms Antonelli agreed that there was a change in the care of [Child 1] in May 2019, but there is controversy between them regarding when that change took place and exactly what the change was.  Consequently the issues the Tribunal must consider are what the change in [Child 1]’s care was and whether it was different from that reflected in the existing care percentages and, if so, the date from which that change occurred. 

CONSIDERATION

1. Broadly speaking, the orders that the Federal Circuit Court of Australia made on 8 November 2018 allowed for [Child 1] to spend an additional night a fortnight with Mr Zanetti from 9 May 2019, during school terms.  Regarding the period before 9 May 2019, the orders provided for [Child 1] to spend three nights a fortnight with Mr Zanetti during school terms, half of each school holiday period and also on other special dates and public holidays if [Child 1] would not otherwise on those days be in Mr Zanetti’s care.  The increase in Mr Zanetti’s care from 9 May 2019 was however, stipulated to be conditional upon Mr Zanetti providing Ms Antonelli with a copy of his lease of his then residence and a photo of the bedroom in which [Child 1] would be sleeping.  It would seem that the obvious purpose of that proviso was to provide assurance to Ms Antonelli that there would be appropriate accommodation for [Child 1] when she was with Mr Zanetti.

2. Mr Zanetti’s evidence to the Tribunal was that the increase in his care of [Child 1] did occur from 9 May 2019 and that he did provide to his solicitor, with instructions to send onto Ms Antonelli’s solicitor, the required documentation to enable that increase in his level of care of [Child 1].

3. Ms Antonelli’s evidence was that she did not receive that documentation until just before 23 May 2019, and it was only when she received that documentation that the level of Mr Zanetti’s care of [Child 1] increased, that increase in his level of care of [Child 1] being the additional night a fortnight during school terms.

4. The Tribunal accepts Ms Antonelli’s evidence on this point.  Her evidence reflects what Mr Zanetti informed the Department on 20 June 2019, which was far closer to the time when the change occurred than his evidence to the Tribunal.  It therefore provides more accurate evidence of what occurred than his evidence to the Tribunal.  Further, Mr Zanetti was unable to specify the date upon which he provided his solicitors with the documentation that would enable the change nor could he say when his solicitors in fact did forward the documentation to Ms Antonelli’s solicitor.

5. Mr Zanetti presented both to the Department, in support of his objection to the Department’s decision of 20 June 2019, and to the Tribunal a calendar for 2019 and 2020 in which he had circled the days on which he understood he would have had care of [Child 1] between 9 May 2019 and 8 May 2020 in accordance with the court orders made on 8 November 2018.

6. The evidence of both Mr Zanetti and Ms Antonelli to the Tribunal revealed that that calendar was inaccurate in two respects.  Firstly, Mr Zanetti had not circled the three nights from 9 April to 11 April 2020, which coincided with the Easter weekend, on which the orders stipulated [Child 1] was to reside with him, and secondly, included the nights of 3 to 5 and 8 February 2020, on which nights the orders provided for [Child 1] to reside with Ms Antonelli.  In other words based on what the Court had ordered [Child 1] would, in all, be spending one additional night with Ms Antonelli over the year 9 May 2019 to 8 May 2020 than what was reflected in the calendar that Mr Zanetti submitted. 

7. Further, Mr Zanetti had not circled any nights beyond 9 May 2020 in the calendar.  Based on the court orders, he would have had care of [Child 1] on 10, 14 and 22 May. 

8. The consideration of a parent’s pattern of care for a child is done by reference to a care period.  A care period is a period of time appropriate to discern a pattern of care for a child.  Generally speaking, this is a period of twelve months.  Further, the point in time of which the Tribunal must consider the matter is the time at which the Department made its primary decision with respect to the care percentages, which in this case is 20 June 2019. 

9. Adopting a care period of twelve months commencing 23 May 2019, which is when the change in [Child 1]’s care occurred, and concluding 22 May 2020, and based on what was known at 20 June 2019 with respect to the likely pattern of care for [Child 1] in that care period, which derives from what the court orders stipulated, [Child 1] would be in Mr Zanetti’s care for a period of 129 nights and Ms Antonelli’s care for 237 nights of a 366 night care period.  In other words, [Child 1] would be in Ms Antonelli’ care for 64% of the time and Mr Zanetti’s care 36% of the time.

10. Given that the change in the care of [Child 1] occurred on 23 May 2019, and Mr Zanetti brought that to the attention of the Department on 20 June 2019, which is within 28 days of the date of the change in [Child 1]’s care, then in accordance with subsection 54F(3) of the ChildSupport (Assessment) Act 1989, the existing percentages of care must be revoked with effect on 22 May 2019.  Further, new percentages of care of 36% for Mr Zanetti and 64% for Ms Antonelli must be determined in accordance with subsections 50(2) and (3) of the Act.

11. Accordingly, the Tribunal must set aside the Department’s decision and make the correct decision to substitute for the Department’s decision. The Tribunal notes that under subsection 43(6) of the AAT Act it has, in effect, a discretion regarding the date on which its decision can take effect.  The Tribunal also observes that Mr Zanetti lodged his objection to the Department’s decision well after 28 days from when he would have received notice of the Department’s primary decision of 20 June 2019.  Had the Department made the correct decision on his objection, and absent the Department being satisfied that there were special circumstances preventing Mr Zanetti lodging his objection more than 28 days after receiving notification of the Department’s primary decision, the Department’s correct decision would only have taken effect from the date Mr Zanetti lodged his objection.

12. The reason why Mr Zanetti lodged his objection to the Department’s primary decision of 20 June 2019 so late is that he believed that he was, by his previous application to the Tribunal for review of the Department’s objection decision of 20 June 2019, seeking a review of the Department’s primary decision of 20 June 2019.  The Tribunal considers that, given that, there was a special circumstance that prevented Mr Zanetti from lodging an objection within 28 days of being notified of the Department’s primary decision of 20 June 2019.  That special circumstance was that he was confused by the Department having made two separate decisions on 20 June 2019.  Given that, this is not a matter where, in the Tribunal’s view, it ought otherwise order under subsection 43(6) that the effect of its decision substituting the objection decision of 28 February 2020 have effect from a date later than 23 May 2019. 

13. Simply put, the decision of the Tribunal substituting the objection decision of 28 February 2020 shall take effect from the day on which the care of [Child 1] occurred.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

1. The existing care percentages for [Child 1] are revoked pursuant to subsection 54F(1) of the Child Support (Assessment) Act 1989, with effect on 22 May 2019 in accordance with paragraph 54F(3)(a).

2. Pursuant to subsection 50(2) of the Child Support (Assessment) Act 1989, Mr Zanetti’s percentage of care for [Child 1] is 36% and Ms Antonelli’s percentage of care is 64%.