Burney and Burney (Child support)

[2021] AATA 2902

Burney and Burney (Child support) [2021] AATA 2902 (1 July 2021)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021176

APPLICANT:  Ms Burney

OTHER PARTIES:  Child Support Registrar

Mr Burney

TRIBUNAL:  Member A Ducrou

DECISION DATE:  01 July 2021

DECISION:

The tribunal sets aside the decision under review made by the objections officer on 17 March 2021 to apply care percentages of 65% for Ms Burney and 35% for Mr Burney in the administrative assessment of child support for the child from 19 February 2021 and, in substitution, determined that the percentages of care apply in the administrative assessment of child support for the child with effect from 14 August 2020.

CATCHWORDS

CHILD SUPPORT – date of effect of care percentage decision – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist – 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 omitted 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 Burney and Mr Burney are the separated parents of a daughter, aged 15 (the child) in respect of whom there is a child support assessment. This review is about when new care percentage determinations for Ms Burney and Mr Burney have effect and apply in relation to the administrative assessment of child support for the child.

2. On 27 October 2020 a Services Australia  (the Agency) officer made a decision to refuse to change the percentages of care that were recorded and applied for Ms Burney and Mr Burney and in the administrative assessment of child support for the child from 13 July 2018. On 19 February 2021 Ms Burney lodged an objection to that decision.

3. On 17 March 2021 an objections officer of the Agency decided to allow the objection. The objections officer determined that percentages of care of 65% for Ms Burney and 35% for Mr Burney are to be recorded as particulars of the administrative assessment of child support for the child. The objections officer made a further determination on 17 March 2021 that the care percentages of 65% for Ms Burney and 35% for Mr Burney apply in the administrative assessment of child support for the child from 19 February 2021, being the date when Ms Burney’s objection was lodged.

4. Ms Burney subsequently applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for independent review of the decisions made by the objections officer. Her application for review of the objections officer’s determination of the date of effect of the application of the care percentages in the administrative assessment of child support for the child was lodged by telephone on 7 April 2021 (being this present review AAT review number 2021/MC021176). The tribunal reviewed the related care percentage determination separately (AAT review number 2021/SC021116).

5. On 21 May 2021 a tribunal officer spoke to Mr Burney who told the tribunal officer that he did not wish to take part in any proceedings.

6. The tribunal conducted a hearing for this review (AAT review number 2021/MC021176) on 4 June 2021. Ms Burney participated at the hearing by telephone via Microsoft Teams audio. She gave oral evidence on affirmation and made oral submissions. The Child Support Registrar (the Registrar) did not participate at the hearing. The tribunal called Mr Burney on the hearing date at the scheduled time for the hearing on the telephone number provided to the tribunal. Mr Burney answered the tribunal’s call but elected not to participate in the hearing and then terminated the call. The tribunal proceeded to hear and decide the application for review in Mr Burney’s absence.

7. The tribunal had before it documents provided by the Registrar (numbered 1 to 171). The Registrar’s documents were copied to Ms Burney and Mr Burney. At the hearing the tribunal invited Ms Burney to provide further relevant information after the hearing and the tribunal deferred making its decision on the review to allow time for her to provide the information. The tribunal received documents from Ms Burney on 15 June 2021. The tribunal sent copies of the documents (numbered A1 to A4) to Mr Burney and invited him to provide a written response by the close of business on 25 June 2021. The tribunal’s letter to Mr Burney explained that he was not obliged to provide a response but that if the tribunal did not receive a response by the specified date, then the tribunal would proceed to make its decision based on the information available to it. The tribunal received further documents from Ms Burney on 18 June 2021. The tribunal sent copies of the documents (numbered A5 to A10) to the parties including to Mr Burney. The tribunal invited Mr Burney to provide a written response by the close of business on 28 June 2021. The tribunal’s letter to Mr Burney explained that he was not obliged to provide a response but that if the tribunal did not receive a response by the specified date, then the tribunal would proceed to make its decision based on the information available to it.

8. The tribunal did not receive a response from Mr Burney by the specified dates or otherwise. The tribunal is satisfied that the tribunal’s letters and the documents A1 to A10 were properly sent to him in accordance with applicable legislative provisions. The tribunal considered whether to defer the review further to allow additional time for Mr Burney to respond and to provide information in support of his case. The tribunal notes that the documents were properly sent to Mr Burney, he did not contact the tribunal to request an extension of time to respond or to provide further information, that he previously indicated that he did not wish to participate in proceedings and that he was contacted at the scheduled hearing but elected not to participate. The tribunal is of the view that Mr Burney was given a fair opportunity to present evidence and to respond. Having regard to these matters and taking into account the objective of the tribunal of providing amongst, other things, a mechanism of review that is fair, just, economical and quick and that there is no indication of when, or if, a response or further information is likely to be forthcoming from Mr Burney the tribunal declined to delay making its decision further. The tribunal made its decision on 1 July 2021.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). For the reasons set out by the tribunal in the related review (AAT review number 2021/SC021116) the tribunal determined to affirm the decision made by the objections officer on 17 March 2021 that Ms Burney had a care percentage of 65% and Mr Burney had a care percentage of 35% for the child for the care period that commenced on 29 June 2020.

2. The issue that arises in this case is:

• What is the date of effect of the new care percentage determinations?

CONSIDERATION

Issue–What is the date of effect of the new care percentage determinations?

1. The legislation contains provisions that determine the date of effect of a decision varying or substituting a care percentage decision on review following the lodgement of an objection.

2. If an objection to a care percentage decision is lodged more than 28 days from notice of the decision being served, and the objection is allowed in part or in full in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination, the effective date of the review decision on objection is the date on which the objection was lodged (subsection 87AA(1) of the Registration and Collection Act). However, the Registrar may, if satisfied that there are special circumstances that prevented the person from lodging their objection within 28 days, make a determination under subsection 87AA(2) of the Registration and Collection Act, that subsection 87AA(1) applies as if the reference to 28 days were a reference to a longer period that the Registrar determines to be appropriate. A decision made under subsection 87AA of the Registration and Collection Act is a separate decision to the care percentage decision in respect of which the objection is lodged and is separately reviewable by this tribunal.

3. Based on the Agency’s records the tribunal finds that notice was sent to Ms Burney on 27 October 2020 of a decision made on that date to refuse to change the percentages of care that recorded as particulars of the administrative assessment for the child and applied in the administrative assessment for the child from 13 July 2018. The tribunal is satisfied that the notice of the decision was properly served on Ms Burney in accordance with the applicable legislative provisions. It is common ground that Ms Burney lodged an objection to that decision on 19 February 2021. The tribunal is satisfied that Ms Burney’s objection was lodged more than 28 days after notice of the care percentage decision made on 27 October 2020 was served.

4. The objections officer determined to allow Ms Burney’s objection and on review substituted a new care percentage determination. However, the objections officer was not satisfied that there are special circumstances that prevented Ms Burney for lodging the objection within the period of 28 days after notice of the care percentage decision was served and determined that the date of effect of the new care percentage decisions was 19 February 2021, being the day on which Ms Burney lodged the objection.

5. Ms Burney told the tribunal that she found dealing with the Agency very challenging. Any time when she contacted the Agency Mr Burney would react by sending her abusive SMS messages a few days later. She is in a position where she has to maintain contact with him because they have another child who spends time with him. She has anxiety as a long-standing condition and dealing with the Agency and Mr Burney was too much for her. She found it even more difficult as the Agency required her to provide proof of the care arrangements for the child. However, Mr Burney did not have to provide proof because if the Agency called him, he either didn’t answer the call or hung up. The Agency didn’t accept the SMS message communications between the child and Mr Burney that she had provided as substantiation of the change in care. She believed that taking things further was pointless as she had nothing else to provide. She didn’t realise that she could object to the decision and she didn’t understand that she had the option to provide different types of documents as evidence. Further, she wasn’t aware that the percentages of care for the child had not changed. It was only later on when she contacted the Agency to notify of a subsequent care change that she realised that things were fully explained to her.

6. ‘Special circumstances’ is not defined in the legislation. The applicable case law is consistent with ‘special circumstances’ being facts peculiar to the case that are special or out of the ordinary which set the case apart from other cases (Gyselman and Gyselman (1992) FLC 92-279 and Philippe and Philippe (1978) FLC 90-433). Relevantly, section 4.1.8 of the Child Support Guide (the Guide) sets out the policy for determining whether there are special circumstances (for the purposes of applying section 87AA of the Registration and Collection Act). It has examples of when special circumstances may exist but makes it clear that they are not exhaustive and that the decision-maker must have regard to the particular circumstances of the applicant in considering whether there are special circumstances preventing them from lodging the objection within the required timeframe. The tribunal is not bound by policy. However, in ReDrake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 the Full Court of the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case the tribunal accepts that the policy in the Guide is consistent with the objects of the legislation and that it assists the tribunal in making determinations under the legislation.

7. The documents that Ms Burney provided after the hearing are consistent with the evidence she gave at the hearing. The fact that the notice of the decision made on 27 October 2020 was properly served on Ms Burney who then failed to take steps to lodge an objection or to contact the Agency to query why the recorded care percentages had not changed, weighs against there being special circumstances preventing her from lodging her objection within the 28-day period. However, the documents that Ms Burney provided after the hearing confirm that she has received regular treatment for mental health conditions, including for anxiety, for several years including in 2020. The tribunal is satisfied having regard to the documents received from Ms Burney and to her clear and consistent oral evidence given on affirmation that in Ms Burney’s case, the combined impact of her mental health conditions of long-standing together with the difficult nature of her relationship with Mr Burney impacted on her capacity to understand and exercise her rights of review such that there are special circumstances that prevented her from lodging her objection within 28 days after notice of the care percentage decision was served.

8. While Ms Burney did not make an effort to lodge the objection earlier or to communicate that the decision was being contested or raise her concerns in other ways, the tribunal considers that she did not rest on her rights having regard to the evidence that she did not become aware until February 2021 of her option to object. The tribunal notes that any extension of the period for the lodgement of the objection would be likely to increase the child support payable by Mr Burney to Ms Burney under the administrative assessment which would result in some prejudice to Mr Burney. However, based on the available evidence the tribunal is not satisfied that it would result in substantial prejudice to Mr Burney by reason of him being liable for payment of significant arrears of child support.

9. Based on the oral and documentary evidence the tribunal is satisfied that it is appropriate to extend the period for lodgement of Ms Burney’s objection under subsection 87AA(2) of the Registration and Collection At to the period that commenced on 14 August 2020, being the date when Ms Burney notified the Agency of the change in care for the child. This means that the care percentage determinations of 65% for Ms Burney and of 35% for Mr Burney for the child for the care period that commenced on 29 June 2020 have effect and apply to the administrative assessment of child support for the child from 14 August 2020. In accordance with section 43 of the Administrative Appeals Tribunal Act 1975 this is the date of effect of the tribunal’s decision to affirm the care percentage determinations made by the objections officer.

DECISION

The tribunal sets aside the decision under review made by the objections officer on 17 March 2021 to apply care percentages of 65% for Ms Burney and 35% for Mr Burney in the administrative assessment of child support for the child from 19 February 2021 and, in substitution, determined that the percentages of care apply in the administrative assessment of child support for the child with effect from 14 August 2020.