Knoller and Child Support Registrar (Child support) [2019] AATA 5510 (11 November 2019)

Last Updated: 20 December 2019

Knoller and Child Support Registrar (Child support) [2019] AATA 5510 (11 November 2019)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2019/PC017202

APPLICANT: Mr Knoller

OTHER PARTIES: Child Support Registrar

TRIBUNAL: Member M Martellotta

DECISION DATE: 11 November 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that following the change in care which occurred on 9 October 2018 Mr Knoller has 29% care and Ms Hendricks has 71% care. The date of effect of the tribunal’s decision is 20 August 2019.

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 refuses to make a determination – the date of effect of the tribunal’s decision is the date the application for review was lodged

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 Knoller and Ms Hendricks are the parents of a child (aged 11 years) who is the subject of a child support assessment. This review is about a decision made by the Department of Human Services – Child Support (the Department) to change the level of care in relation to the child.
2. On 10 December 2018 the Department decided to change the level of care recorded for the child to reflect that Ms Hendricks had 100% care and Mr Knoller had 0% care from 19 October 2018 effective in the assessment from 4 December 2018.
3. Mr Knoller lodged an objection within 28 days of that decision. On 10 June 2019 a Department objections officer partly allowed the decision by instead deciding that Ms Hendricks had 100% care and Mr Knoller had 0% care from 9 October 2018 effective in the assessment from 4 December 2018.
4. On 20 August 2019 Mr Knoller lodged his application with the tribunal seeking independent review of the decision. The tribunal held a hearing on 31 October 2019. Mr Knoller attended by telephone conference and gave evidence under affirmation. Ms Hendricks did not seek to be a party to the application and did not attend. The Department provided documents relevant to their decision (162 pages). The tribunal deferred making a decision in order to seek further information from the applicant.

ISSUES

5. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
6. Child support legislation is interpreted by the Department with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but, provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.^[1]
7. The issues which arise in this case are:
   • Should the existing determination of percentage of care be revoked and replaced?
   • Should a new determination of a percentage of care be made? If so, what is the percentage of care under the new determination? From when should it apply?

CONSIDERATION

8. Section 50 of the Act requires the Department to determine a person’s percentage of care where a person has had, or is likely to have a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.
9. Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out on the number of nights. A new percentage of care can be determined by the Child Support Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.
10. Mr Knoller provided the following evidence:
    1. He and Ms Hendricks did not have any formal parenting arrangements in place.
    2. In 2018 prior to these changes the child was mainly living with him in [City 1]. He would take the child to visit her mother in [Town 1] for two weeks over the school holidays and every other weekend he would arrange for the child to stay with her mother for two nights. As Ms Hendricks does not drive he was the person who would drive the child to and from her mother’s to facilitate the visits.
    100. On this basis the Department had recorded him as having 77% care and the mother 23% care.
    4. At the end of school term three in 2018 he took the child to visit her mother (around 9 October 2018) and he expected to pick her up in time for school starting in term four. However Ms Hendricks advised that the child had asked to now stay with her mother and on this basis would not be returning to live with him.
    5. The child stayed with her mother until 26 December 2018 when he picked her up and she stayed with him until February 2019 when she went back to her mother.
    6. In effect the care arrangement have reversed and he now has the child for two weeks every school holidays and every second weekend he has care generally for two nights. At a minimum the percentage of care should reflect that he has some level of care.
    7. He decided to start Family Court proceedings to obtain a court order that the child reside with him however his paperwork was not accepted as he had not gone through mediation.
    8. Since then he and the mother have been in mediation to try and come to some agreement around care going forward.
    9. He noted that if the child wants to mainly live with her mother he was not going to force her to do otherwise – however it was incorrect that he has had no care of the child since these changes and he thinks he would have about 30% care of the child.
11. As noted, Ms Hendricks did not participate in the hearing. The tribunal noted that Mr Knoller’s evidence was overall consistent with the Department’s records. Mr Knoller was also able to provide details about care he had of the child in the most recent school holidays in October 2019.
12. The tribunal, taking into account the evidence provided at hearing and on the basis of evidence contained in the Department records and documents, finds that:
    1. There has been a child support assessment in place since 12 September 2008. Since 16 January 2018 the care of the child has been recorded as 77% to Mr Knoller and 23% to Ms Hendricks.
    2. On 9 October 2018 the child went to stay with her mother. On 4 December 2018 Ms Hendricks advised the Department there had been a change in care.
    100. The child spent time with her father from 26 December 2018 and returned to her mother on 3 February 2019.
    4. The child lives with her mother in [Town 1] and spends time with her father for two weeks each school holidays and for two nights every second weekend.
13. In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to the Department of a change in the care arrangement. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same.
14. The tribunal is first required to consider whether the existing determination must be revoked and if so decide what the new determination is. As noted, the legislation requires a percentage of care for a parent to be determined on the pattern of care that a parent has had or is likely to have for a child in a care period. This pattern of care can be established either according to a care arrangement or the actual care that is taking place. In this matter there was no relevant court order or parenting plan.^[2]
15. The tribunal is satisfied that there was an existing determination in place pursuant to section 50 of the Act whereby Mr Knoller had 77% care and Ms Hendricks had 23% care of the child. The tribunal is also satisfied that from 9 October 2018 there was a change in care and that since that date the child now lives with her mother and spends time with her father. On the basis of the available evidence the tribunal accepts Mr Knoller’s evidence regarding the new pattern of care which results in Mr Knoller having care of the child 108 nights or 29.6%. Section 54D of the Act provides that where a percentage of care is less than 50% it is to be rounded down to the nearest whole percentage which means a care percentage of 29% to Mr Knoller and 71% to Ms Hendricks.
16. The tribunal then considered whether the care determination in relation to the child is to be revoked. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care of a child that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made (section 54F of the Act).
17. Section 55C of the Act specifies how the percentage of care will affect the cost percentage. In this case Mr Knoller’s care percentage has decreased from 77% to 29% – his cost percentage changes as a result. The tribunal concluded that the existing determination is to be revoked pursuant to section 54F of the Act. In this matter the revocation of the existing care percentage takes effect the day before the change of care day namely 8 October 2018.
18. Having revoked the existing determination, the tribunal must make a new determination of percentage of care. The tribunal concluded that in this matter there is a likely pattern of care for the child and that as such section 50 of the Act applies. Section 54B of the Act sets out the date of effect of the new determination of percentages of care. In this matter Ms Hendricks did not advise of a change in care within 28 days, namely that her care has increased, the date of effect is the date of notification which in this case is 4 December 2018.^[3]
19. The final matter the tribunal is required to consider is the date of effect of the tribunal’s decision. Section 95N of the Child Support (Registration and Collection Act) 1988 provides for the date of effect of a decision made by the tribunal upon first review of a care percentage decision. Subsection 95N(1) of that Act provides that where an application for tribunal first review is made more than 28 days after notice of the Department’s decision is served, then if the original decision is varied or substituted (as in this case) the tribunal’s decision has effect on and from the day the application to the tribunal was made. Subsection 95N(2) provides that if the tribunal is satisfied that there are special circumstances which prevented the application for review being made within the specified time period it may determine a longer period as the tribunal determines to be appropriate.
20. Special circumstances are not defined in the legislation. The Family Court has considered the phrase “in the special circumstances of the case” in relation to provisions in the Act which relate to consideration of grounds for departure.^[4] The Family Court in Gyselman & Gyselman [1991] FamCA 93; [1992] FLC 92-279 has held:

As a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the court will not interfere with the formula in the ordinary run of cases.

21. In this matter, according to the record, Mr Knoller was given notice of the objections officer’s decision by correspondence dated 10 June 2019. His application to the tribunal was not made until 20 August 2019, a period greater than 28 days.
22. There was no evidence that special circumstances prevented Mr Knoller from making application within the required time period and, as such, the tribunal concluded that the date of effect of the tribunal’s decision is the date of application, namely 20 August 2019.^[5]

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that following the change in care which occurred on 9 October 2018 Mr Knoller has 29% care and Ms Hendricks has 71% care. The date of effect of the tribunal’s decision is 20 August 2019.

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^[1] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
^[2] In certain circumstances a determination can be made on the basis of care that they should have been providing pursuant to a formal care arrangement (such as a court order or parenting plan) rather than the actual care being provided. This is referred to as an interim care determination: section 51 of the Act. The tribunal was satisfied that there was no basis to make an interim care determination.
^[3] Paragraph 54F(3)(b)
^[4] See, generally, subsection 117(2) of the Act.
^[5] The tribunal provided Mr Knoller the opportunity to make submissions on this aspect post hearing but no evidence was submitted.