Arnott and Beale (Child support)

[2018] AATA 1705

Arnott and Beale (Child support) [2018] AATA 1705 (17 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013511

APPLICANT:  Ms Arnott

OTHER PARTIES:  Child Support Registrar

Mr Beale

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  17 April 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support – Percentage of care – Date of effect of objection decision – Whether special circumstances prevented lodgement of the objection within time – Refusal to make a determination under subsection 87AA(2) – Decision under review affirmed

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. Ms Arnott and Mr Beale are the parents of [Child 1] (born September 2009).

2. From 19 May 2011 the care percentages for [Child 1] were reflected as 62 per cent care to Ms Arnott and 38 per cent care to Mr Beale with Ms Arnott being the liable parent under the assessment.

3. On 27 February 2017 Ms Arnott advised the Department of Human Services, Child Support (the Child Support Agency) that from 27 February 2017 there had been a change of care for [Child 1] with Ms Arnott providing 86 per cent care and Mr Beale providing 14 per cent care.

4. On 27 March 2017 the Child Support Agency made the decision to not accept the change of care as advised by Ms Arnott (the original decision).

5. On 11 October 2017 Ms Arnott objected to this decision and on 12 February 2018 the Child Support Agency allowed the objection and made the decision to reflect the care of [Child 1] as 86 per cent to Ms Arnott and 14 per cent to Mr Beale from 27 February 2017 (the objection decision).

6. As special circumstances were not met the objection decision was applied to the assessment from 11 October 2017 being the date Ms Arnott lodged her objection.

7. On 14 February 2018 Ms Arnott applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the date of application of the objection decision.

8. The Tribunal conducted a hearing into the application on 17 April 2018 and Ms Arnott gave evidence on affirmation by conference telephone.  The Tribunal attempted to contact Mr Beale by telephone on the number recorded but was unsuccessful on three occasions.  Mr Beale did not participate in the hearing.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (102 pages).

ISSUES

1. The statutory provisions relevant to this review are found within the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue which arises in this case is whether or not there were special circumstances that prevented Ms Arnott from making her objection to the original decision within 28 days of the date the notice of that decision was served upon her.

CONSIDERATION

1. There is no time limit within which a person must lodge an objection against a care percentage decision.  If, however, the objection is made more than 28 days after the date the notice of the decision is served upon them, and the objection is either allowed in full or in part, the objection decision has effect from the date upon which the objection was lodged pursuant to subsection 87AA(1) of the Act.

2. This is the case unless there are special circumstances that prevented the person from lodging the objection within the prescribed 28 days.  If the Child Support Agency (or the Tribunal standing in the shoes of the Child Support Agency) is satisfied there are special circumstances that prevented the person from lodging the objection within 28 days, then a determination can be made under subsection 87AA(2) of the Act that subsection 87AA(1) applies as if the reference to 28 days were a reference to a longer period as determined by the decision maker to be appropriate.

3. The Act does not define the term special circumstances, but the Family Court in Gyselman & Gyselman [1991] FamCA 93 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”.

4. Although not bound by the Child Support Guide (the Guide) issued by the Child Support Agency, the Tribunal is able to take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.  Relevantly, the Guide states at 4.1.8 that:

   Special circumstances

   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:

   ·the parent was seriously ill or had an accident that stopped them from lodging an objection

   ·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

   ·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

   ·the parent reasonably relied upon inaccurate or misleading information.

5. Ms Arnott was advised about the outcome of the original decision in a letter from the Child Support Agency dated 27 March 2017 and under provisions of the Evidence Act 1995 she was therefore taken to be served with written notice of this decision by 7 April 2017.  Given Ms Arnott lodged her objection more than 28 days after she was served with notice, the Tribunal is satisfied it must consider any special circumstances which prevented her from lodging within the prescribed timeframe.

6. Ms Arnott told the Tribunal at hearing that the letter she received from the Child Support Agency dated 27 March 2017, which supposedly advised her of the care decision, was poorly worded and unclear.  She refuted this was evidence of any decision.  Ms Arnott said the letter was titled in bold and capitals “A change in your care arrangements” when in fact there was no change at all.  She said the opening sentence of the letter states, “We are writing to advise you that the Child Support Agency (CSA) recently received new information about in the care arrangements for [CHILD 1]”, when there was no new information.  Ms Arnott said there was no mention in the letter at all that the change in care she had submitted had not been accepted.

7. Ms Arnott said she only became fully aware that her change of care application had not been accepted after submitting her tax return which then triggered further correspondence from the Child Support Agency relating to the care arrangements for [Child 1].  This was around October 2017 and prompted her to submit her objection on 11 October 2017.

8. Ms Arnott acknowledged having a short conversation with the Child Support Agency about the change in care for [Child 1] in July 2017 and it was this conversation that led her to ask Mr Beale to contact the Child Support Agency and clarify the care arrangements.  What happened instead was that Mr Beale ended up seeking to end the child support case.

9. The Tribunal notes in the documents provided by the Child Support Agency that on 24 July 2017 Ms Arnott had a conversation with an agency service officer.  The officer notes, “advised care rejected” as there was no evidence provided by Ms Arnott or confirmation of the change from Mr Beale.  The Tribunal also notes a similar conversation between Ms Arnott and the Child Support Agency on 10 August 2017 when Ms Arnott sought confirmation of the outcome of Mr Beale’s attempts to clarify the care arrangements.  At the time the agency officer advised, “there was a decision in late March to refuse the care.”

10. The Tribunal has some sympathy with the views of Ms Arnott in relation to the poor wording of the letter she received from the Child Support Agency on 27 March 2017 and accepts this may have caused confusion.  This does not alter the fact that in two later conversations with the Child Support Agency Ms Arnott did discuss the outcome of the original decision.

11. It is the view of Tribunal that Ms Arnott’s initial confusion does not constitute a ‘special circumstance’ which prevented her from making her objection within 28 days of the date she received the correspondence from the Child Support Agency.  The Tribunal explained this to Ms Arnott at hearing and, although unhappy, she accepted this reasoning.

12. The Tribunal therefore declines to exercise the discretion provided for in subsection 87AA(2) of the Act and allow Ms Arnott a longer period to make her objection to the decision of the Child Support Agency of 27 March 2017.

DECISION

The decision under review is affirmed.