Baldwin and Garner (Child support)

[2018] AATA 3996

Baldwin and Garner (Child support) [2018] AATA 3996 (30 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014576

APPLICANT:  Mr Baldwin

OTHER PARTIES:  Ms Garner

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  30 August 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Date of effect of an objection decision in relation to a care percentage decision under section 87AA - Late objection - The applicant was not prevented from lodging his objection on time - 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

1. Mr Baldwin and Ms Garner have a number of children including [Child 1] who was born in 2011. On 17 October 2015 the Department of Human Services – Child Support (“the CSA”) decided not to change the parents’ recorded care of [Child 1]. At the time, Mr Baldwin was recorded as providing 0% care and Ms Garner was recorded as providing 100% care.

2. On 8 May 2018, [Child 1] ceased to be a child of the child support case.

3. On 16 May 2018, Mr Baldwin objected to the decision that the CSA had made on 17 October 2015. An objections officer decided to record Mr Baldwin as providing 22% care to [Child 1], with effect from 16 May 2018, which was obviously after [Child 1] had ceased to be a child of the child support case. The objections officer’s decision had no practical effect for child support purposes. Mr Baldwin promptly sought review of the objections officer’s decision. Both parents were advised by letter and text message of the details of the Tribunal hearing. Mr Baldwin participated in the hearing. Ms Garner did not participate in the hearing. I phoned her twice and on both occasions it sounded as if someone had answered the phone and immediately terminated the call. I decided to proceed with the hearing in Ms Garner’s absence. As at the date of despatch of these Reasons, Ms Garner had not contacted the Tribunal to explain why she did not make herself available to participate in the hearing.

4. On 16 May 2018, Mr Baldwin contacted the CSA. It appears from a brief CSA file note that Mr Baldwin claimed that he had been providing care for two nights per fortnight as well as half the school holidays since at least 7 September 2015. On 21 May 2018 the CSA contacted Ms Garner. It appears from another brief CSA file note that she agreed with the information that Mr Baldwin had provided. There are 40 weeks / 20 fortnights of school and 12 weeks of school holidays per year. ((20 x 2) + (12 x 7 / 2)) / 365 = 22.4%. It was for those reasons that the objections officer concluded that Mr Baldwin had been providing 22% care.

5. At the hearing, Mr Baldwin stated that he had provided care for four nights per fortnight plus half the school holidays from when school commenced in January 2015. Later during the hearing he stated that he had mistakenly referred to his days of care, rather than his nights of care, and he had provided care for three nights per fortnight plus half the school holidays.

6. On 16 May 2018, Mr Baldwin contacted the CSA and it relevantly noted:

   Mr Baldwin advised that the previous care was incorrect as he has been having the same fortnightly and school holiday care of [Child 1] since she was born.

7. Three years earlier, on 22 May 2015, Mr Baldwin contacted the CSA and informed it that he was providing care every Monday from 9:00am to 4:00pm and every second Sunday from 9:00am to 4:30pm. The CSA calculated his provision of care on the basis of his hours of care, since he was not providing any overnight care, and it calculated that he was providing 7% care. If a parent provides less than 14% care, the actual percentage of care does not affect the administratively assessed rate of child support payable.

8. Mr Baldwin has provided a number of inconsistent accounts of his provision of care. At one point in time, both parents agreed that he had been providing 22% care from 7 September 2015. I consider that evidence to be the best evidence on point.

9. Section 87AA of the Child Support (Registration and Collection) Act 1988 specifically deals with the situation where an objections officer varies a care decision. As a general rule, if a parent objects to a care decision more than 28 days after they were notified of the decision and an objections officer varies the decision, then the variation takes effect from when the parent objected. Mr Baldwin was notified of the original care decision by letter dated 17 October 2015. He objected on 16 May 2018, which was more than 28 days after he would have received the CSA letter in the ordinary course of the post. According to the general rule, the decision to record Mr Baldwin as providing 22% care would therefore take effect from 16 May 2018.

10. However, if there were special circumstances that prevented the parent from objecting within 28 days, the decision-maker can extend the 28-day period to a longer period that is considered to be appropriate in the circumstances.

11. When the CSA first spoke to Mr Baldwin on 16 May 2018 about why he did not object sooner, he stated that the CSA’s letters do not tell him that if something in their letters is incorrect he should contact the CSA. During the hearing I referred Mr Baldwin to that file note. He did not deny giving that explanation. Obviously one does not need to be told to contact the CSA if it becomes apparent that the CSA is calculating one’s rate of child support payable on the basis of incorrect information. In any event, the letters that the CSA sent to Mr Baldwin, including the one dated 17 October 2015, did tell him to contact it if the information contained in the letters was incorrect.

12. Mr Baldwin also stated, in effect, that he had been unable to contact the CSA in relation to his care of [Child 1] because he had been grieving for the loss of another daughter who had passed away while in Ms Garner’s care in 2013. In response to further questions, Mr Baldwin stated that he had been “involved in non-stop court cases since 2013”, including [several] proceedings involving Apprehended Violence Orders, proceedings involving allegations that he had assaulted another of his children, proceedings involving the parents’ care of the children, and a coronial inquest.

13. I accept that the matters that Mr Baldwin referred to would have made it more difficult for him to promptly object to the original care decision. However, his ability to be activity involved in so many court proceedings suggests that he also retained the ability to phone the CSA and lodge an objection to the original care decision. I am not persuaded that Mr Baldwin’s circumstances prevented him from objecting within time. For those reasons, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.