Zieske and McNary (Child support)

Zieske and McNary (Child support) [2021] AATA 1971 (27 April 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/MC020721
APPLICANT:  Mr Zieske
OTHER PARTIES:  Child Support Registrar
Ms McNary

TRIBUNAL:Member Y Webb
DECISION DATE: 27 April 2021
DECISIONS:

Care decision

The Tribunal sets aside the decision under review and, in substitution, decides that from 6 January 2020 care percentages in relation to the child were 67% to Ms McNary and 33% to Mr Zieske with a date of effect of 6 January 2020 for Ms McNary and a date of effect of 13 March 2020 for Mr Zieske.

Section 87AA decision

The decision under review is affirmed.

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 – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances – decision under review affirmed

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 DECISIONS

BACKGROUND

This review is about the percentages of care of Mr Zieske and Ms McNary in relation to their nine-year-old son (“the child”). It is also about whether the decision not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) was correct.
A child support assessment has been in place since 4 March 2016 and has been collectable by Services Australia (“the Child Support Agency”) since that date.
Since 29 January 2016 the pre-existing percentages of care for the child were determined by the Child Support Agency to be 79% care to Ms McNary and 21% care to Mr Zieske.
[In] November 2016 the Federal Circuit Court of Australia made parenting orders in relation to the care of the child. These orders, which were supplied by Mr Zieske and included in the Child Support Agency papers, provided that Mr Zieske would have care four nights a fortnight during school terms and half of the school holidays. There were also some special occasion days which alternated between the parents (such as Easter) and other individual special days such as Father’s Day.
On 13 March 2020 Ms McNary contacted the Child Support Agency and notified that there had been a change in the care of the child from 6 January 2020. She stated that the child was now in her 100% care.
The Child Support Agency attempted to discuss the asserted change of care with Mr Zieske but this was not successful.
On 18 March 2020 an officer of the Child Support Agency decided that the care of the child was 100% to Ms McNary from 6 January 2020 with a date of effect of 6 January 2020 for Mr Zieske and a date of effect of 13 March 2020 for Ms McNary.
On 13 November 2020 Mr Zieske objected to that decision. He stated that there were court orders in place since November 2016 and that he has care of the child “every second Friday, Saturday and Sunday nights and the alternate Monday night and half of the school holidays”. He stated that his care is 122 nights per year. He stated that he had the care of the child for the first half of the 2019/2020 Christmas holidays and they went away on holidays before the child went back to his mother’s in January 2020. Mr Zieske stated that when school restarted he missed care on the first Monday night but then he had care again as per the court orders since the following weekend.
On 15 January 2021 an objections officer allowed Mr Zieske’s objection. The objections officer decided that they could not be satisfied that there was a change of care in January 2020 and determined that the percentages of care reverted to 79% to Ms McNary and 21% to Mr Zieske.
However, the objections officer also determined that, as Mr Zieske had lodged his objection more than 28 days from the date of the original decision and there were no special circumstances why he did not lodge his objection earlier, the existing care percentage was to be re-applied from 13 November 2020 due to the effect of section 87AA of the Registration and Collection Act.
On 4 February 2021 Mr Zieske requested review by the Tribunal of the care percentage decision and also of the section 87AA decision.
Mr Zieske and Ms McNary attended the hearing by way of a telephone conference on 27 April 2021. Mr Zieske gave sworn evidence and Ms McNary gave evidence on affirmation.
The Child Support Agency provided a bundle of papers relevant to this matter and these were marked (as a bundle) as Exhibit C1.

ISSUES

The issues for the Tribunal to determine are:
a)    What were the care arrangements in relation to the child in the relevant care period?
b)    Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care?
(c) Were there any special circumstances which prevented Mr Zieske from lodging his objection within 28 days of the original decision made on 18 March 2020?
(d)   From when should the decision apply?

CONSIDERATION

The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Registration and Collection Act.
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(ren). 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(ren) during the relevant care period, the Registrar must determine that person’s percentage of care for the child(ren) during the care period.
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 the care of the child changed and reflect the pattern of care that a person has had, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will apply only unless or until a further care determination is made).
The pattern of care can be established either according to a “care arrangement” or the actual care that is taking place.
Section 5 of the Assessment Act refers to the Family Assistance Act for its definition of a “care arrangement” and section 3 of the A New Tax System (Family Assistance) Act 1999 provides that a “care arrangement” includes “a parenting order within the meaning of section 64B of the Family Law Act 1975”. The Tribunal is satisfied that the court orders of [November] 2016 satisfy the definition of a “care arrangement”.
There is no dispute that the relevant aspects of the court orders provide that Mr Zieske would have care four nights a fortnight during school terms and half of the school holidays. (There were also some special occasion days which alternated between the parents (such as Easter) and other individual special days such as Father’s Day.)
Section 54A of the Assessment Act 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, Mr Zieske and Ms McNary did not contend that nights were an unsuitable measure of the care of the child and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.
There is also no dispute and both parents agreed that until January 2020 care of the child was occurring in accordance with the court orders.
Ms McNary contacted the Child Support Agency on 13 March 2020 and asserted that the child had been in her 100% care since 6 January 2020 and initially the Child Support Agency made a decision that that was the case.
However during the objections process Mr Zieske denied that the child had been in Ms McNary’s 100% care since 6 January 2020. He stated that in the Christmas school holidays over 2019/2020 he normally would have had care in the second half of the holidays but it was arranged that because of the planned holiday with the child Mr Zieske had his holiday care instead for the first half of the school holidays. Mr Zieske stated that when they returned home from the trip he needed to go back to work and he discussed with the child whether he wanted to go to work with him or return to his mother’s care. Mr Zieske stated that the child’s preference was to return to his mother on 6 January 2020. He stated that they telephoned Ms McNary and she agreed to the child returning to her care.
Mr Zieske stated that when school restarted he missed care on the first Monday but then he had care again as per the court orders since the following weekend. He stated that Ms McNary had never had 100% care of the child and he had only ever missed a few weekends here or there over the course of 2020 when the child did not want to come and Mr Zieske did not want to force him.
Mr Zieske provided a third party statement from his partner, [named] dated 20 November 2020. However, this did not specifically refer to the period from January 2020 when Ms McNary asserted there had been a change in the pattern of care.
Ms McNary stated that in January 2020 the child was not due to return to her care until 10 January 2020 but he returned on 6 January 2020. She stated that after that the child was sometimes dropped back into her care on a Sunday afternoon and there were occasions when she could not persuade the child to go to his dad’s. However, Ms McNary stated that was especially the case between August and November 2020. Ms McNary stated that there was also a period around March 2020 when the care was not occurring in accordance with the court order but the care resumed to the normal regular pattern around April 2020.
In response to Mr Zieske’ s objection Ms McNary stated that there were three months when Mr Zieske had no care and this would have been around August, September and October 2020. At that time Ms McNary stated that “prior to August (Mr Zieske) was having care as per the court orders. She stated that earlier in the year, maybe around March there was a time when he came back from holidays and missed some care but she didn’t have any records of what the missed care was”.
The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the child and whether the care that was occurring did not correspond with the pre-existing care determination of 79% to Ms McNary and 21% care to Mr Zieske.
The phrase “pattern of care” which is referred to in subsections 49(1) and 50(1) of the Assessment Act is not given any special meaning by the Assessment Act. In Parent A and Child Support Registrar and Anor[1] the AAT stated that:
…a pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations on which the prediction of successive or future events may be based…..The pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.
[1] [2013] AATA 562; 137 ALD 426
For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[2] the Tribunal takes into account evidence of the pattern of care the person has had, from the date of the asserted change in care – 6 January 2020 – and evidence of the pattern of care the person is, or was, likely to have going forward from that point in time.
[2] Paragraph 50(1)(a) of the Assessment Act
The Tribunal accepts that on 6 January 2020 the child returned to Ms McNary’s care a few days earlier than planned and that Mr Zieske missed having care of the child on the first Monday night of the school term. However, the Tribunal referred to the Child Support Guide at 2.2.2 whereby it provides guidance about what constitutes a change to the pattern of care. It refers to a parent missing three care events in a row or five events out of eight or missing 20% of the care over 12 months. It emphasises that an isolated event is not a change in the pattern. While the Tribunal accepts that there may have been a care change later in 2020 the Tribunal is only able to consider whether there was a change in the pattern of care as at 6 January 2020.
Ms McNary did not have any specific records of the asserted missed care and did not advise of any specific information about care in the period as at 6 January 2020. The Tribunal considered the dates in the period from 6 January 2020 until March when the original decision was made about the care. During this period Mr Zieske admitted he missed a couple of days of care. However, the Tribunal is not persuaded that these couple of missed care events resulted in a new pattern of care from 6 January 2020.
However, while the Tribunal finds that the care of the child was occurring in accordance with the court orders of November 2016, the care on record by the Child Support Agency was that Ms McNary had 79% care and Mr Zieske had 21% care. The Tribunal finds that these percentages do not reflect the court-ordered care and the care which was actually occurring. Rather, the care which was occurring was four nights a fortnight during school terms and half of the school holidays. (There were also some special occasion days which alternated between the parents (such as Easter) and other individual special days such as Father’s Day.)
This calculates to 4 nights X 20 fortnights in school terms = 80 nights plus half of the school holidays = 6 weeks = 42 nights = a total of 122 nights/365 = 33% care to Mr Zieske and 67% to Ms McNary and the Tribunal so finds. While the Tribunal accepts that whether Mr Zieske’s care is 33% or 21% both of these percentages are within the “regular care” bracket (52 to 127 nights) and the effect on the child support assessment is the same –nevertheless there is merit in keeping the care records accurate.
A revocation under Subsection 54H(1) of the Assessment Act can only be made if the existing percentage of care cannot be revoked under the mandatory provisions (section 54G and section 54F of the Assessment Act). Because in this case the change in care does not result in a change to the cost percentage and nor has the parent’s care reduced to less than 14%, sections 54F, 54FA and 54G of the Assessment Act are not applicable. Section 54H provides that the decision-maker has the discretion to revoke an existing care determination in circumstances where the change would assist the Child Support Agency to maintain accurate records of changes in care and assist in keeping accurate records for FTB and child support.
In relation to discretionary revocation the Child Support Guide at 2.2.2 states:
Whether the Registrar revokes an existing care percentage determination under section 54H will depend on the circumstances of the case. If there is clear evidence of a change in care and the Registrar is able to determine new care percentages for the parties to an assessment, the Registrar should revoke the existing care percentage determination, even though the cost percentage is not affected. This helps to ensure there is an accurate record of the care history on a case. However, if the evidence indicates that a change in care has occurred that would not affect the cost percentage, but the evidence is not conclusive as to the precise care percentages the Registrar may decide not to revoke the existing determination. This discretion enables the Registrar to decide not to proceed with unnecessary investigations to determine precise care percentages that would not make a material difference to the assessment.
In this case, the Tribunal was satisfied that if a new determination of the percentages of care for the child were made under section 50 of the Assessment Act the new percentages of care attributable to Mr Zieske and to Ms McNary of 33% and of 67% respectively would be different to the percentages of care that were attributed to them under the existing care determination of 21% to Mr Zieske and 79% to Ms McNary. While revoking the existing care determination will not make a difference to the cost percentage or to eligibility for FTB, in the interests of keeping the child support and family assistance records accurate, the Tribunal considers it is appropriate to revoke the existing percentages of care under section 54H of the Assessment Act.
Subsection 54H(3) of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 6 January 2020. The Tribunal also finds that Ms McNary notified the Child Support Agency of the change on 13 March 2020. As the Child Support Agency was notified more than 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54H(3)(b) of the Assessment Act.
Mr Zieske’s care of the child has increased and according to subparagraph 54H(3)(b)(i) his existing care percentage of 21% will be revoked from 12 March 2020 being the day before the Child Support Agency was notified of the care change.
Ms McNary’s care has decreased and according to subparagraph 54H(3)(b)(ii) her existing care percentage of 79% will be revoked from 5 January 2020 being the day before the change of care day.
An interim period does not apply in this case. Hence section 51 of the Assessment Act is not applicable. Having revoked the existing determinations, the Tribunal must now make new determinations of Mr Zieske’s and Ms McNary’s percentages of care under section 50 of the Assessment Act.
Section 54B of the Assessment Act sets out the date of effect of the new determinations of percentages of care. The percentage of care applies to each day in a child support period on and from the “application day”. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations.
The Tribunal has revoked Mr Zieske’s existing determination with effect from 12 March 2020; therefore the change of care applies from 13 March 2020 for Mr Zieske.
The Tribunal has revoked Ms McNary’s existing determination with effect from 5 January 2020; therefore the change of care applies from 6 January 2020 for Ms McNary.

Date of effect considerations – section 87AA of the Registration and Collection Act

The Tribunal then considered the objections officer’s decision which allowed Mr Zieske’s objection but then decided not to make a determination under subsection 87AA(2) of the Registration and Collection Act. Section 87AA of the Registration and Collection Act deals with the date of effect in circumstances where Mr Zieske lodged his objection more than 28 days after the date of the original decision. This section provides:
87AADate of effect of objections relating to care percentage decisions that are allowed
(1)      If:
(a)      a person lodges, under section 80A, an objection to a care percentage decision; and
(b)      the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and
(c)      the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;
the date of effect of the review decision is the day on which the person lodged the objection.
(2)      If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:
(a)      in a case where the person is a resident of a reciprocating jurisdiction—the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or
(b)      otherwise—the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.
…

Mr Zieske lodged his objection to the original decision on 13 November 2020, which is more than 28 days after notice of the original decision was made.
His objection to the decision of 18 March 2020 was allowed; the objections officer reverted the care to the existing care but did so from 13 November 2020 rather than from 18 March 2020 as was decided at first instance.
The objections officer of the Child Support Agency decided that there were no special circumstances which prevented Mr Zieske from lodging his objection earlier and the date of effect of the objection decision would be the day on which Mr Zieske lodged the objection: that being 13 November 2020.
It is not disputed that Mr Zieske lodged his objection outside the prescribed 28 days. The Tribunal must consider whether there were “special circumstances” which prevented him from lodging within 28 days.
The term “special circumstances” is not defined in the legislation. The Tribunal had regard to the Child Support Guide. While the Tribunal is not bound by policy, the Full Federal Court decided in Drake v 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. Some examples of special circumstances may include:
othe parent was seriously ill or had an accident that stopped them from lodging an objection
othe parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property
othe parent had communication difficulties, including isolation, illiteracy or poor English-language skills
othe parent reasonably relied upon inaccurate or misleading information.
Mr Zieske told the Tribunal that he lodged his objection in November 2020 because he was not aware that the care had been changed. He stated that he changed his address in 2018 but he presumed that his new address would be provided to the Child Support Agency by the Australian Taxation Office. He stated to the Child Support Agency that he recalled the Child Support Agency telephoning him in March 2020 but he didn’t want to talk to them. He stated that he doesn’t receive Child Support Agency letters on MyGov. It was only when the Child Support Agency contacted him about a child support debt that he became aware that a care decision had been made.
The Tribunal accepts that Mr Zieske was not aware until November 2020 that a decision had been made regarding care of the child. However, the main reason that Mr Zieske was unaware was that he hadn’t updated his address and he did not return or cooperate with the telephone calls from the Child Support Agency. The Tribunal accepts that Mr Zieske was under the misapprehension that the Australian Taxation Office would keep his address updated with the Child Support Agency.
While the Tribunal accepts that Mr Zieske’s reasons for not lodging an objection within 28 days were genuinely held, it did not find that the circumstances were special to the extent that they prevented him from lodging an objection within the prescribed period of 28 days. Hence, the Tribunal agrees with the objections officer that the date of effect for the decision is the date that he lodged his objection; that is, 13 November 2020.
The decision not to make a determination under subsection 87AA(2) of the Registration and Collection Act is therefore affirmed.

DECISIONS

Care decision

Section 87AA decision

The decision under review is affirmed.

[2021] AATA 1971

27 April 2021

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Appeal