Carrow and Child Support Registrar (Child support)

[2020] AATA 1401

Carrow and Child Support Registrar (Child support) [2020] AATA 1401 (8 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC018424

APPLICANT:  Ms Carrow

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Martellotta

DECISION DATE:  08 April 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances – decision under review 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 the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Ms Carrow and [Mr A] are the parents of [the Child]. Prior to these matters arising the Department of Human Services – Child Support had recorded the relevant care percentages for the child as Ms Carrow having 84% and [Mr A] having 16% care.

2. [Mr A] advised the Department that there had been a change in care and that as from 7 November 2018 the child was now in his care apart from school holidays. The Department decided on 14 November 2018 to record relevant care as 89% to [Mr A] and 11% to Ms Carrow.

3. Ms Carrow subsequently objected to that decision on 14 November 2019.  The Department based on the agreed evidence of both parents decided to change the assessment to reflect that [Mr A] had 85% and Ms Carrow had 15% care.  The Department decided further that as there were no special circumstances which prevented Ms Carrow from seeking review of their original decision within 28 days then the change in care would be applied from the date of Ms Carrow’s request for review namely 14 November 2019.[1]

   [1] There have been subsequent changes in care which were not relevant to the tribunal’s consideration in this matter.

4. Ms Carrow having been advised of the Department’s objection decision on 9 January 2020 lodged an application with the tribunal seeking review of that decision on 17 February 2020.

5. The tribunal convened a hearing on 8 April 2020.  [Mr A] did not respond to an invitation to be added as a party.  Ms Carrow attended by conference telephone and gave her evidence under affirmation.  Relevant documents received included the Department documents (185 pages) and written submissions from Ms Carrow (A1–A2).[2]

ISSUES

[2] These mainly detailed complaints about how subsequent care decisions were dealt with by the Department.

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the RC Act).

2. The only issue that Ms Carrow sought review of at hearing was the Department’s decision that no special circumstances applied. The relevant issue for the tribunal therefore is whether a determination is to be made under subsection 87A(2) of the RC Act.

3. The tribunal having reviewed the Department documents did not revisit the question of whether the existing determination of care percentage should be revoked.  As noted this was not raised as a ground of review by Ms Carrow. The Department decided to change the percentage of care upon objection having been satisfied that the parties agreed that the change in care that occurred from 7 November 2018 was that [the Child] was to live with his father but otherwise in his mother’s care for 56 nights or 15%.

4. Section 87AA of the RC Act provides that if a person objects to a care percentage decision more than 28 days after the person was served with a notice of the decision, the decision has effect from the date the person lodged the objection. Subsection 87AA(2) provides an exception to that general rule if the objections officer is satisfied that there are special circumstances that prevented the person from lodging the objection with 28 days then they may determine that the section applies as if they had objected within time.

5. The legislation does not define special circumstances, but the Family Court in Gyselman & Gyselman [1992] FLC 92-279 has held: ‘as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary’.

6. At hearing Ms Carrow said that there were special reasons in her case and she provided the following evidence:

   a)    She moved from [City] and relocated to [Town] to get away from family violence. She decided to leave [the Child] with his father so as not to interrupt his schooling.

   b)    She received a copy of the Department’s decision but did not seek review of that decision until she got a letter from Centrelink in October 2019 about her family tax benefit payments.

   c)    When she moved she had to start work straight away.  She then fell over and [injured a body part] in early December 2018 and was unable to work for a period of time.  However in early 2019 she got another job and has been working in that position ever since.

   d)    She was having problems with a neighbour who started stalking her and this made her feel very anxious.  She had a mental health diagnosis many years ago and her mental wellbeing suffered.

7. A review of the Department documents show and the tribunal finds that:

   a)    Ms Carrow received the notice of decision in correspondence dated 14 November 2018. A notice of assessment issued on the same date confirms that the assessment was based on [Mr A] having 89% care and Ms Carrow 11% care.

   b)    Ms Carrow contacted the Department on 23 October 2019 to discuss a change in care.

   c)    On 8 November 2019 she had a discussion in which issues relating to the latest change in care are discussed.

   d)    On 14 November 2019 Ms Carrow lodged an objection to the change in care decision made on 14 November 2018.

8. Ms Carrow had also provided a statement to the Department stating that she injured herself on 2 December 2018 and continued to have pain. She flew to Perth and was seen at [a] Hospital where she was diagnosed as having [injured body parts]. A medical report dated 6 December 2018 confirmed that she attended and was seen on that date.

9. The tribunal asked Ms Carrow how these events prevented her from making an objection. Ms Carrow stated that it was a combination of factors and that basically she had a lot going on and it was only when she got a letter in October 2019 that she was prompted to make contact with the Department.

10. In this matter whilst there is evidence that Ms Carrow had an accident there was in the tribunal’s view no evidence that the nature of her injury was such that it prevented her from communicating with the Department to lodge an objection to the decision of 14 November 2018 within the time specified.

11. Whilst Ms Carrow said she was also affected by issues she was experiencing with a neighbour and the impact this had on her well being, there is also evidence that she was still managing her day to day affairs which included flying to Perth in early December 2018; making arrangements for her son to visit and stay with her in late December 2018.  In the new year she was also able to find new employment and engage with that work.

1. The tribunal was not satisfied on the evidence that special circumstances prevented Ms Carrow from lodging an objection to the decision of 14 November 2018 within 28 days. As such the date of effect of the allowed care percentage decision is the date the objection was made, namely 14 November 2019.

DECISION

The decision under review is affirmed.