Brimson and Vernon (Child support)

[2023] AATA 834

Brimson and Vernon (Child support) [2023] AATA 834 (28 February 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC025027

APPLICANT:  Mr Brimson

OTHER PARTIES:  Child Support Registrar

Ms Vernon

TRIBUNAL:Member P Jensen

DECISION DATE:  28 February 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

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 exist – 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 Brimson and Ms Vernon are the separated parents of [Child 1]. By way of background, the Child Support Agency (“the CSA”) recorded Ms Vernon as providing 5% care for [Child 1] with effect from 15 May 2020 and Mr Brimson as providing 95% care for [Child 1] with effect from 17 June 2020. (The different dates of effect are the result of the parents’ delay in notifying the CSA of the change in care.) The CSA also recorded Ms Vernon as providing 80% care and Mr Brimson as providing 20% care for [Child 1] with effect from 20 June 2020.

2. On 9 February 2022, Ms Vernon informed the CSA that each parent started providing 50% care from 1 January 2022. The CSA unsuccessfully attempted to contact Mr Brimson. The CSA decided to record Ms Vernon as providing 50% care with effect from 1 January 2022 and Mr Brimson as providing 50% care with effect from 9 February 2022 (“the original care decision”). Given the disparity in the parents’ incomes, Mr Brimson continued to be assessed to pay child support.

3. The CSA sent a letter dated 25 February 2022 to Mr Brimson’s last known address notifying him of the original care decision. Unbeknown to the CSA, Mr Brimson had moved home in March 2019.

4. Mr Brimson said he became aware of the original care decision (and other CSA matters) in September 2022 when he was prevented from travelling overseas because he owed a significant debt to the CSA.

5. On 12 October 2022, Mr Brimson objected to the original care decision. The CSA contacted Ms Vernon who confirmed that Mr Brimson had provided 100% care from 1 January 2022. The objections officer allowed Mr Brimson’s objection and made two decisions:

   ·      first, Ms Vernon was recorded as providing 0% care from 1 January 2022 and Mr Brimson was recorded as providing 100% care from 9 February 2022; and

   · second, a determination was not made pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (“the Act”), and therefore the objections officer’s first decision had effect from the date on which Mr Brimson belatedly objected, which was 12 October 2022.[1]

   [1]The child support case ended on 30 May 2022.

6. Mr Brimson applied to the Tribunal for review of the objections officer’s second decision. I heard the matter on 28 February 2023. Mr Brimson and Ms Vernon gave sworn evidence via MS Teams.

7. So far as is relevant, section 87AA of the Act provides that, with one possible exception, if a person objects to a care decision more than 28 days after they were served with a notice of the care decision, any change to the care decision has effect from when the person belatedly objected. Subsection 87AA(2) of the Act provides the possible exception: if there were special circumstances that prevented the person from objecting within the 28-day period, the 28-day period may be extended.

8. Mr Brimson stated, and I accept, that he did not physically receive the CSA’s letter dated 25 February 2022. However, the Child Support (Registration and Collection) Regulations 2018 relevantly provide:

   31Service of notices, etc

   (1)Any notice or other communication given by or on behalf of the Registrar under the Act may be served on a person:

   (a)if the person is a natural person:

   …

   (iv)by sending it by prepaid post to the person’s address for service: …

   …

   (2)If service has been attempted by use of prepaid post, then, unless the contrary is proved, service will be taken to have been effected at the time when the notice or other communication would, in the ordinary course of the post, have arrived at the place to which it was addressed.

   …

   34Address for service

   (1)The address last notified by a person to the Registrar as the address for service of the person is, for all purposes under the Act and this instrument, that person’s address for service.

   …

9. The CSA’s letter dated 25 February 2022 was sent by prepaid post to the address last notified by Mr Brimson as his address for service. The sent letter constituted service of the notice of the original care decision. Mr Brimson is taken to have been served when the letter would have arrived at the address for service in the ordinary course of the mail. At the hearing he confirmed that he did not object within 28 days of that date because he had been unaware of the original care decision because he had not informed the CSA of his new address. Simply omitting to inform the CSA of a new address does not constitute special circumstances. It follows that those circumstances do not constitute special circumstances that prevented Mr Brimson from objecting within the 28-day period. The decision under review is correct according to law.

10. Mr Brimson stated that it was obviously unfair to require him to pay child support while he was providing full-time care. He effectively submitted that if there was a discretion to vary the decision under review, that discretion should be exercised in his favour. The child support legislation goes not grant decision-makers such a discretion.

DECISION

The decision under review is affirmed.