Burridge and Claydon (Child support) - [2024] AATA 4118

Burridge and Claydon (Child support) [2024] AATA 4118 (19 August 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2024/SC027808 and 2024/SC027960
APPLICANT:  Mr Burridge
OTHER PARTIES:  Child Support Registrar
Ms Claydon

TRIBUNAL:Member I Sheck
DECISION DATE: 19 August 2024
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – mother objected to the decision to apply an interim care determination – objection was made more than 28 days – special circumstances – interim care determination does not apply takes effect from the date that the original decision took effect – decision under review is affirmed

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 theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

Ms Claydon and Mr Burridge are the parents of [Child 1], [Child 2] and [Child 3]. A case was registered with Services Australia – Child Support (Child Support) for the assessment of child support on 10 July 2018 and Child Support has been responsible for the collection of the liability since 13 October 2022. As at the beginning of 2023, the assessment of child support was based on care percentages of 100% for Ms Claydon and 0% for Mr Burridge.
On 21 February 2023 Mr Burridge notified Child Support that the care arrangements were to change pursuant to an order made by the Federal Circuit and Family Court (FCCA) on 17 February 2023. Mr Burridge provided a copy of that order, under which it was calculated by Child Support that Mr Burridge would have care of [Child 1], [Child 2] and [Child 3] for 72 nights per year or 19% of the time. Child Support contacted Ms Claydon regarding the care arrangements and she advised that Mr Burridge did not have care of the children as set out in the Court Order. Mr Burridge provided Child Support with evidence on 11 April 2023 relating to his efforts to have the court ordered care arrangements complied with.
On 3 May 2023 an officer of Child Support determined that Ms Claydon continued to have 100% care of [Child 1] and [Child 2] and Mr Burridge 0% care with effect from 17 February 2023. In terms of the child support assessment, the care percentages for all 3 children were to be altered to 81% for Ms Claydon and 19% for Mr Burridge from 17 February 2023 to 15 February 2024 because Mr Burridge was taking reasonable action to make sure that the care arrangements as set out in the Court Order were complied with, therefore an interim care determination was to be applied for 52 weeks.
On 16 August 2023 Ms Claydon formally objected to the decision to apply an interim care determination. On 27 February 2024 an objections officer of Child Support allowed Ms Claydon’s objection. This…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 4118
Decision Date: 19 August 2024

CaseChat Overview and Summary

This matter concerned an objection by Ms Claydon to an interim care determination made by Child Support, which was lodged more than 28 days after the original decision was served. Mr Burridge subsequently applied to the Tribunal regarding the date of effect of the objections officer's decision, which had varied the care percentage determination and sought to apply it from 17 February 2023. The core dispute revolved around whether the objections officer's decision, allowing Ms Claydon's late objection, should take effect from the date of the original decision or the date the objection was lodged.

The legal issues before the Tribunal were whether the objections officer correctly applied section 87AA of the Child Support (Registration and Collection) Act 1988, particularly concerning the date of effect of an objection lodged outside the prescribed 28-day period. This required the Tribunal to determine if "special circumstances" existed that would permit the Registrar to extend the period for lodging the objection, thereby allowing the review decision to take effect from an earlier date. The Tribunal also had to consider the impact of Child Support's internal handling of Ms Claydon's communications.

The Tribunal reasoned that section 87AA(1) of the Collection Act outlines the general rule for the date of effect of late objections, while subsection 87AA(2) provides for discretion to apply an earlier date if special circumstances are found. The Tribunal was satisfied that Ms Claydon had made consistent efforts to express her disagreement with the original decision of 3 May 2023, including a contact made within 28 days of receiving the notice. The Tribunal found that the failure of Child Support officers to record these communications as a formal objection constituted special circumstances, justifying the application of subsection 87AA(2).

Consequently, the Tribunal affirmed the objections officer's decision that the interim care determination should take effect from 17 February 2023, the date the original decision took effect.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This means that the substantive decision that an interim care determination could not be made is correct and must be affirmed. That decision is the subject of Mr Burridge’s application to the Tribunal 2024/SC027808. Mr Burridge has, however, made a second application, this being application 2024/SC027960 and this relates to the date of effect of the objections officer’s decision. The objections officer determined that the interim care provisions had been incorrectly applied. They also concluded that their determination was to be applied to the child support assessment from 17 February 2023. The latter decision was in accordance with section 87AA of the Collection Act, which provides:Date of effect of objections relating to care percentage decisions that are allowed87AA(1) If:(a) a person lodges, under section 80A, an objection to a care percentage decision; and(b) the objection is lodged more than 28 days ... after notice of the care percentage decision was served; and(c) the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;the date of effect of the review decision is the day on which the person lodged the objection.(2) If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:.....the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate. On this point, Mr Burridge told the Tribunal that he felt like he had been penalised due to errors of Child Support. He had received the original decision and was aware that either party had 28 days to object to it. As there was no objection lodged within 28 days he was satisfied that the rate of child support that he was now assessed to pay was in fact correct and made financial decisions based on this stated liability. The decision of the objections officer, made some 9 months after the original decision, had the effect of increasing his liability by more than $1,300 and this has caused him financial hardship. The Tribunal asked Ms Claydon whether she had received the original decision notice in a timely manner and she responded she had; she had accessed it through the Child Support portal. The Tribunal asked whether she had noticed that she had a period of 28 days in which to object and Ms Claydon said she could not recall, as it was some time ago. Her central point, however, was that she had continued to repeatedly contact Child Support and express her dissatisfaction with the decision that had been made. She had no concrete proof, but she was sure that she would have contacted within the 28-day period set out in the notice of 3 May 2023. The Tribunal notes that from February 2023 on there are a number of contacts that were made by Ms Claydon to Child Support. The point she makes in these contacts is that Mr Burridge does not have care of the children as set out in the Court Order. It appears that on a number of occasions these contacts are treated as notification of a new care change, as also appears to be the case in the recorded contact of 28 July 2023. It was not until 16 August 2023 that Ms Claydon was informed by a Child Support officer that as there had not been “a new care event” she needed to lodge an objection to the existing decision. The Tribunal was satisfied that Ms Claydon had made all efforts to express that she disagreed with the original decision of 3 May 2023 in a timely manner and this included a contact made within 28 days of receiving the notice of 3 May 2023. The failure of Child Support officers to record Ms Claydon’s contacts as a formal objection to the original decision constitutes special circumstances that warrants application of the discretion set out in subsection 87AA(2). This means that the decision made by the objections officer that an interim care determination does not apply takes effect from the date that the original decision took effect: 17 February 2023.

Ratio Decidendi

Legal Principle Established

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