Boulton and Maloney (Child support)

Boulton and Maloney (Child support) [2018] AATA 958 (6 March 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2017/AC013017
APPLICANT:  Ms Boulton
OTHER PARTIES:  Child Support Registrar
Mr Maloney

TRIBUNAL:Member Y Webb
DECISION DATE: 06 March 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the objection to the decision of 22 October 2016 was lodged within 28 days of Ms Boulton being served with notice of that decision and therefore the decision of 17 November 2017 determining that Ms Boulton had 94% care and Mr Maloney 6% care of the children from 30 August 2015 has a date of effect of 30 August 2016 being when Ms Boulton contacted in relation to the care change.

CATCHWORDS
Child support – Care percentage – Date of effect of objection decision under subsection 87AA(2) – Whether the objection was lodged late – Objection lodged within time - Decision under review set aside and substituted

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

This review relates to a decision made by the Registrar, Department of Human Services (“Child Support Agency”) on 17 November 2017 to determine that there were no special circumstances which prevented Ms Boulton from lodging her objection to a care decision made on 22 October 2016 within 28 days of that decision.
Ms Boulton and Mr Maloney are the parents of three children who are now aged 22, 15 and 13. This review relates only to the two younger children (“the children”).
According to the Child Support Agency records, the case commenced in December 1995 and has been registered for collection since 28 November 2011.
On 30 August 2016 Ms Boulton contacted the Child Support Agency and advised that from 30 August 2015 the care of the children had been 94% to her and 6% to Mr Maloney.
On 22 October 2016 the Child Support Agency decided that there was insufficient evidence to change the existing care percentages of 85% to Ms Boulton and 15% to Mr Maloney.
According to the Child Support Agency Ms Boulton objected to the decision of 22 October 2016 on 15 August 2017.
On 17 November 2017 the Child Support Agency’s objections officer decided that the care of the children was in accordance with Ms Boulton’s claim: that is, 94% care to Ms Boulton and 6% care to Mr Maloney from 30 August 2015.
However, in considering the reasons Ms Boulton gave in relation to the delay in lodging her objection - that is, the delay between the decision of 22 October 2016 and the lodgement of her objection on 15 August 2017 - the Child Support Agency asserted that Ms Boulton had stated that the delay was because “something was going on with Centrelink about a care decision review and she was unsure if it was related to child support”.
The Child Support Agency decided on 17 November 2017 that special circumstances did not prevent Ms Boulton from objecting earlier.
The Child Support Agency therefore decided that the new care percentage of 94% care to Ms Boulton and 6% care to Mr Maloney would apply from the date that Ms Boulton formally lodged her objection with the Child Support Agency; that is, from 15 August 2017.
On 30 November 2017 Ms Boulton applied for review by the Administrative Appeals Tribunal (“the Tribunal”) of the date of effect of the care decision. Ms Boulton did not apply for the care decision to be reviewed but only the date of effect of the objection decision.
Ms Boulton attended the hearing on 6 March 2018 by way of telephone conference. She gave evidence on affirmation.
Prior to the hearing Ms Boulton provided to the Tribunal a written submission including a chronology of her contacts with the Child Support Agency and the Family Assistance Office.
Mr Maloney also attended the hearing by way of telephone conference. He gave sworn evidence.

ISSUES

The issues which arise in this case are:
· Did Ms Boulton lodge her objection within 28 days of being informed of the care percentage decision of 22 October 2016; and if not
· were there special circumstances which prevented Ms Boulton from lodging her objection within 28 days of the decision of 22 October 2016?

CONSIDERATION

The legislation relevant to this review is contained in the Child Support (Registration and Collection) Act1988 (Registration and Collection Act).
Subsection 87AA (1) of the Registration and Collection Act states, that where an objection is allowed and this has the effect of varying the determination to which the care percentage decision relates, or substituting a new decision, and in circumstances where the objection was lodged more than 28 days after notice of the care percentage decision was served, then the date of effect of the review decision is the day on which the person lodged the objection.
However, subsection 87AA (2) provides a discretion to extend this 28-day period if the Registrar (and the Tribunal) is satisfied that special circumstances prevented the person from lodging the objection within this 28 day period.
In Ms Boulton’s case, her objection to the decision of 22 October 2016 was allowed and a new percentage of care was substituted granting her 94% care of the children and Mr Maloney 6%. However, the objections officer of the Child Support Agency decided that there were no special circumstances which prevented Ms Boulton from lodging her objection within 28 days of the decision of 22 October 2016 and in accordance with paragraph 87AA(1)(c) the objections officer decided that the date of effect of the objection decision would be the day on which the objection officer determined Ms Boulton lodged the objection: that being 15 August 2017.
Ms Boulton’s contentions are that she requested a review of the decision of 22 October 2016 within 28 days. She asserted that after the decision of 22 October 2016:
·     On 3 November 2016 she telephoned the Child Support Agency and advised that the decision was not correct and she would be providing supporting documentation. She stated that she was transferred to the Family Assistance Office.
·     On 14 November 2016 she took supporting documentation in hard copy to her local Family Assistance Office including a personal statement (letter) dated 10 November 2016 requesting a review of the decision of the Child Support Agency. The letter included the Child Support reference number. The Family Assistance Office stamped the documentation with date received.
·     A short time after lodging the supporting documentation she telephoned the Child Support Agency. She was informed that the Child Support Agency had not received notification of the Family Assistance Office receiving the supporting documentation. Ms Boulton stated that she then rang the Family Assistance Office which confirmed that it had her supporting documentation in their electronic system and that a decision could take up to three months or more.
·     On 3 January 2017 she telephoned the Child Support Agency. When she stated that she had provided evidence to the Gawler Family Assistance Office regarding a review of a care decision she was transferred to the Family Assistance Office.
·     On 15 March 2017 the Family Assistance Office called her and requested signatures on the supporting letters within 24 hours. Ms Boulton provided this through the Centrelink Express application.
·     On 28 March 2017 she was advised that the documentation had gone to the Integrated Care Team.
·     On 18 May 2017 she telephoned the Child Support Agency and was transferred to the Family Assistance Office which informed her that the documentation was still in appeals.
·     On 19 May 2017 the Family Assistance Office called her. It was discussed that the documentation was not forwarded to the correct destination and the correct button had not been pressed.
·     On 19 May 2017 she received a letter from the Family Assistance Office stating that a decision made on 22 October 2016 was now being reviewed by an authorised review officer.
·     On 6 July 2017 Ms Boulton telephoned the Family Assistance Office regarding the progress of her review.
·     On 11 July 2017 Ms Boulton phoned the Family Assistance Office. She was advised to ring the complaints number and was provided with the complaints line number.
·     On 18 July 2017 Ms Boulton phoned the complaints line. She believes the officer lodged a complaint with the authorised review officer and he advised her to call back if she had not heard anything within two weeks.
·     On 2 August 2017 she called the complaints line. The officer told her that the change in care was a Child Support Agency issue and transferred her to the Child Support Agency. The officer at the Child Support Agency advised her to complete an “Objecting to a Child Support Decision” form.
·     On 15 August 2017 Ms Boulton telephoned the Child Support Agency which confirmed that the objection form dated 6 August 2017 had been received.
At the hearing Ms Boulton explained that when she received the letter of 22 October 2016 informing her that her claim for a change to the percentages of care for the children had been rejected, she carefully read the letter and in particular how she could ask for a review of it. She referred to the following paragraph in that letter:
The Child Support Agency (CSA) and the Family Assistance Office (FAO) use the same rules to work out your percentage of care for child support payments and family assistance payments. While you are a customer of both CSA and FAO, you only need to contact one agency with details of a change in care and the other agency will update your details automatically. The CSA and FAO may give effect to your change in care from different dates.
Ms Boulton explained that she understood from the above paragraph in the letter of 22 October 2016 that she could lodge her request for review with either the Child Support Agency or with the Family Assistance Office.
She told the Tribunal that she lodged her request for review with the Family Assistance Office because she had quite a bundle of documentation and there is no Child Support Agency office at which she could lodge hard copies of documents. She stated that she lodged her request for review with the Family Assistance Office after speaking with the Child Support Agency. She stated that the Child Support Agency was aware that she was objecting to the decision of 22 October 2016 and at no time did the Agency inform her that it was incorrect to lodge her documentation with the Family Assistance Office.
Ms Boulton told the Tribunal that she repeatedly told the Child Support Agency and the Family Assistance Office that she was seeking review of the decision of 22 October 2016. She actually thought that the Family Assistance Office was in the process of reviewing the decision. She was unaware that the Child Support Agency has a particular form for objecting to a decision. The first she heard of the “Objecting to a Child Support Decision” form was on 2 August 2017 when she was transferred to the Child Support Agency from the Family Assistance Office’s complaints line.
Mr Maloney stated that he does not agree with the decisions made by the Child Support Agency regarding care of the children. He does not agree with the matter again being heard as he has now twice been told that the matter is “done and dusted”.
The Tribunal has considered the letter sent to Ms Boulton dated 22 October 2016 from the Child Support Agency informing her of the outcome of her claim for a change of care percentages in relation to the children. The Tribunal is satisfied that the wording of the letter is ambiguous in that it implies that Ms Boulton could object to the decision by contacting either the Child Support Agency or the Family Assistance Office. This is how Ms Boulton interpreted the letter and in the Tribunal’s view quite reasonably so. Also, quite reasonably Ms Boulton opted to lodge her objection with the Family Assistance Office because she was able to drop off hard copies of supporting documents at that office.
The Tribunal accepts Ms Boulton’s statements that she lodged a letter and supporting documentation with the Family Assistance Office on 14 November 2016. This letter clearly states in the opening sentence: “ I, Ms Boulton would like to take this opportunity to make a statement about my children’s care arrangements and ask that you review the decision made due to lack of information provided”. The letter then goes on to explain the care arrangements, refers to supporting letters and documents from third parties which are attached and asks that the information be considered in support of her claim for 94% care. The Tribunal is satisfied that Ms Boulton’s letter is a request for a review of the decision of 22 October 2016. This letter and other supporting documents including a copy of the Family Assistance Office’s letter of 19 September 2016 regarding a request for more information about the care of the children were lodged with a date stamp of 14 November 2016.
Within the Child Support Agency papers is a note that the Child Support Agency spoke on the telephone with Ms Boulton on 3 November 2016. The notes only record that Ms Boulton was advised of the care decision and objection rights and that she was advised of the timeframe for objecting of 28 days. However, the Tribunal is satisfied that Ms Boulton told the Child Support Agency that she did not think the decision was correct and that she would be providing supporting documentation to be reviewed.
The Tribunal accepts that it appears there was some confusion and misunderstandings involving the Family Assistance Office and the Child Support Agency. It appears that it took some months for the Family Assistance Office to realise that Ms Boulton was asking for a review of the decision of the Child Support Agency and for the Child Support Agency to realise that the Ms Boulton had lodged a request for review of its decision with the Family Assistance Office. It was also clear to the Tribunal that Ms Boulton’s understanding and expectation was that the relationship between the Family Assistance Office and the Child Support Office is seamless and that decisions made by one agency can be resolved by either of the agencies. The letter of 22 October 2016 implies this is the case but this would not be entirely accurate. However, the Tribunal is satisfied that Ms Boulton had a reasonable expectation that she was able to request a review of the decision by contacting and lodging her request for review with either the Child Support Agency or the Family Assistance Office.
The Tribunal therefore finds that the request for review was made within 28 days of the decision dated 22 October 2016 in that the request for review was made on 14 November 2016.
There is no requirement for the request for review or the objection to be in writing but in Ms Boulton’s case the Tribunal finds that the request for review on 14 November 2016 was in writing as evidenced by Ms Boulton’s letter dated 10 November 2016.
Because the Tribunal has found that Ms Boulton lodged her objection on 14 November 2016 which is within 28 days of receiving the decision of 22 October 2016, the provisions of section 87AA of the Registration and Collection Act are not relevant in this case, the Tribunal does not need to consider whether there were any special circumstances which prevented Ms Boulton from lodging her objection.
This means that the date of effect for the decision that the care percentages were 94% to Ms Boulton and 6% to Mr Maloney from 30 August 2015 takes effect from 30 August 2016 when Ms Boulton contacted the Child Support Agency about the care change.

DECISION

[2018] AATA 958

6 March 2018

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Procedural Fairness