Damon and Child Support Registrar (Child support)

[2019] AATA 5947

Damon and Child Support Registrar (Child support) [2019] AATA 5947 (18 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/SC017205, 2019/BC017237, 2019/BC017238

APPLICANT:  Mr Damon

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  18 November 2019

DECISION:

The Tribunal decides to:

(a)set aside decision 1 and determine that [Child 1], [Child 2], [Child 3] and [Child 4] be recorded as being in Mr Damon’s 100% care from 14 June 2013; the date of effect of the decision will be 29 May 2019 (the date Mr Damon objected) as the Tribunal decides not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989;

(b)set aside decision 2 and determine that [Child 5] be recorded as being in Mr Damon’s 100% care from 14 June 2013; the date of effect of the decision will be 29 May 2019 (the date Mr Damon objected) as the Tribunal decides not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989;

(c)set aside decision 3 and determine that [Child 6] be recorded as being in Mr Damon’s 100% care from 14 June 2013; the date of effect of the decision will be 29 May 2019 (the date Mr Damon objected) as the Tribunal decides not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – 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

1. This matter concerns how care should be recorded for the youngest six of Mr Damon’s eight children.[1] There are three objection decisions made by the Child Support Agency (“CSA”):

   (a)  a decision dated 24 July 2019 in which it was determined that [Child 1], [Child 2], [Child 3] and [Child 4] be recorded as being in Mr Damon’s 100% care and [Ms A]’s 0% care from 8 November 2013 (“decision 1”);

   (b)  a decision dated 24 July 2019 in which it was decided to record care of [Child 5] as 100% to Mr Damon, with effect in the assessment from 8 November 2013 (“decision 2”);

   (c)   a decision dated 24 July 2019 in which it was decided to record of [Child 6] as 100% to Mr Damon from 10 January 2014 (“decision 3”).

   [1] There is no objection decision before the Tribunal which deals with recorded care for Mr Damon’s two oldest [children]; they are not part of this review.

2. Mr Damon applied for review by the Tribunal on 20 August 2019. The Tribunal conducted a hearing on 1 November 2019; Mr Damon participated by conference telephone. The Tribunal had been unable to make any contact with [Ms A], who did not apply to be a party to the application. Following the hearing, Mr Damon supplied additional materials in support of his application.

CONSIDERATION

1. Mr Damon advised the Tribunal that [Ms A] was involved with drugs and other matters; child safety authorities were involved. He took 100% care of his six youngest children from 14 June 2013; the two older children came back to him shortly after. He said the CSA and Centrelink “had the kids all over the place with dates”; he said there had been a problem as [Ms A] had not registered the children’s births, causing Mr Damon to follow a “long process” to have them recognised. Mr Damon he probably did not pay much attention to the CSA correspondence; he said he was “overwhelmed” at the time focusing on full-time care of all of his children. He said he was very unfamiliar with Centrelink and the CSA.

2. Mr Damon said he thought it very unfair that CSA was not giving effect to the care change from 14 June 2013 when he had 100% care. He said there was “so much going on that little things were not on his mind”. He said he was “just trying to keep the kids alive” and was “changing nappies”. He said it took many months for Centrelink to finally recognise he had the children; he said it was a “real struggle to survive”.  Mr Damon said [Ms A] should be held accountable; he said even to this day, she continues to misrepresent her care to Centrelink. He said he only wants [Ms A] to contribute fairly to the children.

3. The Tribunal had no hesitation accepting Mr Damon’s evidence as credible and consistent, and is satisfied that he had his youngest six children from 14 June 2013. He has supplied corroborating evidence in support.

4. The law relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination ought to be revoked. The date of effect is when the previously determined pattern of care ceased: subsection 54G(2).

5. If section 54G does not apply, section 54F provides that if the CSA was notified, or otherwise became aware, of the change within 28 days after that day, then revocation takes effect the day before the change of care day (subparagraph 54F(2)(c)(ii)). However, if the CSA is notified or becomes aware more than 28 days after the change of care day that the care of the child no longer corresponds with the existing care determination, the revocation takes effect on the day that the CSA was so notified.

Decision 1

1. The CSA did not accept that Mr Damon had 100% care of [Child 1], [Child 2], [Child 3] and [Child 4] from 14 June 2013. The Tribunal disagrees; the Tribunal finds as fact that Mr Damon had 100% care from that date.

2. The CSA materials (folio 20) reveals Mr Damon lodged a “change of care” form with Centrelink on 12 July 2013. This should be deemed the date the CSA was notified or became aware of the change in care; as this occurred within 28 days, in the ordinary course, the change would take effect from 14 June 2013.

3. However, Mr Damon did not object to the original decision until 29 May 2019 (more than five years after the original decision). The significance of Mr Damon objecting outside the 28 day period would be that any new determination made as a result of the objection process would take effect, under section 87AA of the Child Support (Registration and Collection) Act 1989, from the date of the objection unless special circumstances existed.[2] Further, this Tribunal may exercise only the powers and discretions conferred on the Child Support Registrar on objection (under subsection 43(1) of the Administrative Appeals Tribunal Act1975). In that case, the Tribunal’s decision could take effect only from the date of the objection unless special circumstances existed which prevented Mr Damon from objecting within 28 days.

   [2] A decision of the Registrar to make a determination under subsection 87AA(2) or not to make such a determination is not an objection decision but a primary decision even though it is made by an objections officer. A person affected by it may apply to the Tribunal for AAT first review.

4. The sorts of factors contemplated by this provision are matters involving ill health, or other factors beyond a person’s control, which prevented an objection being made. Given the very lengthy delay here, the Tribunal considers there would need to be some very compelling circumstances.

5. Undoubtedly, Mr Damon was very occupied with his large family. Without wanting to trivialise in any way the difficult position he found himself, he was given proper notice of objection rights and did not exercise those rights; it will often be the case that parties to child support assessments will have heavy caring commitments, and be battling acrimonious litigation. Understandably, Mr Damon did not prioritise CSA matters at the time; if he had brought an objection within a shorter, more reasonable period (such as a matter of months), his case would have been stronger. However, in light of the extended delay, the Tribunal is not satisfied that it can be said there were special circumstances which prevented an objection being made; Mr Damon effectively rested on his rights. There is no proper basis for a favourable exercise of section 87AA.

6. The result will be that the Tribunal’s decision will take effect from 29 May 2019, meaning it will have no practical effect.

Decision 2

1. Again, the Tribunal disagrees with the CSA and finds that [Child 5] was in Mr Damon’s 100% care from 14 June 2013. A care change was notified to Centrelink on 12 July 2013. In the ordinary course, 100% care of [Child 5] would take effect from 14 June 2013 as Mr Damon notified a change on 12 July 2013.

2. However, as identified above, Mr Damon objected well outside the 28 day period to the original decision. The Tribunal has found no proper basis for a favourable exercise of section 87AA; the result is that the decision will take effect from 29 May 2019, meaning it too will have no practical effect to the child support assessment. 

Decision 3

1. The Tribunal has found [Child 6] was in Mr Damon’s 100% care from 14 June 2013. Again, the CSA papers reveal Mr Damon notified a change of care to Centrelink on 12 July 2013, within 28 days. In the ordinary course, 100% care of [Child 6] would take effect from 14 June 2013.

2. Again, as above, the date of effect of the decision will be 29 May 2019, the day Mr Damon objected, given there is no proper basis for a favourable application of section 87AA.

3. As the Tribunal has reached different conclusions to the objections officer, the decisions under review will be set aside (noting that there will be no practical effect for child support purposes given Mr Damon’s late objections).

DECISION

The Tribunal decides to:

(a)set aside decision 1 and determine that [Child 1], [Child 2], [Child 3] and [Child 4] be recorded as being in Mr Damon’s 100% care from 14 June 2013; the date of effect of the decision will be 29 May 2019 (the date Mr Damon objected) as the Tribunal decides not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989;

(b)set aside decision 2 and determine that [Child 5] be recorded as being in Mr Damon’s 100% care from 14 June 2013; the date of effect of the decision will be 29 May 2019 (the date Mr Damon objected) as the Tribunal decides not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989;

(c)set aside decision 3 and determine that [Child 6] be recorded as being in Mr Damon’s 100% care from 14 June 2013; the date of effect of the decision will be 29 May 2019 (the date Mr Damon objected) as the Tribunal decides not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989.