Dearth and Child Support Registrar (Child support)

Dearth and Child Support Registrar (Child support) [2020] AATA 1760 (24 March 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/BC018148
APPLICANT:  Ms Dearth
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Member M Douglas
DECISION DATE:  24 March 2020
DECISION:

The Tribunal sets aside the decision of the Child Support Registrar made on 19 December 2019 “to accept the change in care for care [Child 1] as 0% to Ms Dearth and 0% to [Mr A] from the 11 February 2019” and, in substitution, decides that there is no change to the care percentages for [Child 1].
The Tribunal sets aside the decision of the Child Support Registrar also made on 19 December 2019 not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 and, in substitution, determines that the 28 days referred to in paragraph 87AA(1)(b) is to be 100 days

For the sake of clarity, the Tribunal notes that its decisions above do not affect the care percentage decision the Child Support Registrar made regarding the change in [Child 1]’s care on 22 April 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – date of effect provisions - decision under review set aside and substituted

CHILD SUPPORT – date of effect of objection 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 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

Ms Dearth has applied for review of two decisions that a delegate of the Child Support Registrar made on 19 December 2019 relating to the care percentages used in the assessment of child support for her son, [Child 1].
The Child Support Registrar operates through the Department of Human Services and it is convenient to refer to the Registrar as the Department in these reasons.
The decisions of the Department that Ms Dearth seeks the Tribunal to review are:
a. To accept the change in care for [Child 1] as 0% to Ms Dearth and 0% to [Mr A] from the 11 February 2019;
b. Not to make a determination under subsection 87AA(2) of the Child Support (Registration Collection) Act 1988 (the R&C Act) to extend the time stipulated in subparagraph 87AA(1)(b) with respect to lodging an objection to a care percentage decision.
The reference to [Mr A] in the Department’s decision extracted at 3a above is a reference to [Mr A], who is [Child 1]’s natural father.
In accordance with subsection 30(1) of the Administrative Appeals Tribunal Act1975 (the AAT Act), the parties to proceedings before the Tribunal include the party who is entitled to apply for review of a decision and has duly applied for review, which in this case is Ms Dearth, and the person who made the decision, which in this case is the Department. Subsection 30(1) also allows a person to be a party to proceedings if that person's interests would be affected by the decision of the Tribunal; that person has applied under subsection 30(1A) to be a party; and the Tribunal has acceded to that application.
In this case, the Tribunal posted a letter to [Mr A] on 6 January 2020 inviting him to apply by 20 January 2020 to be a party to the proceedings. The Tribunal did not receive a response from him. Accordingly, he is not a party to these proceedings.
The relevant chronology with respect to the decisions of the Department that the Tribunal is reviewing is as follows.
As at 10 February 2019 the care percentages used in the assessment for [Child 1] were 100% for Ms Dearth and 0% for [Mr A]. On 23 April 2019, someone on [Mr A]’s behalf contacted the Department to advise the Department that [Child 1] had not been in the care of Ms Dearth since 2 February 2019. Following contact between the Department and Ms Dearth on that same day, the Department decided, on 1 May 2019, to revoke Ms Dearth’s existing care percentage for [Child 1] with effect on 1 February 2019 and to make a determination that her care percentage was 0% from 2 February 2019. The Tribunal observes that those decisions were made, respectively, under subsections 54F(1) and 49(2) of the Child Support (Assessment) Act1989 (the Act).
The Department posted a letter to Ms Dearth on 1 May 2019, titled “your child support care arrangements have changed”, informing her that she would no longer receive child support for [Child 1] from [Mr A] “because the care arrangement for your child has changed”. The Department also said in that letter, under a heading “what this means for you”, that “[Mr A] no longer needs to pay child support from 2 February 2019 for [Child 1] because the amount of time you care for him is not enough to receive child support”. The Tribunal observes that the Department in that letter did not advise Ms Dearth what the new care percentage was for her for [Child 1] from 2 February 2019.
An officer of the Department recorded within the Department’s system that Ms Dearth telephoned the Department on 9 August 2019 and told the Department that “the care decisions” were not correct. It would seem Ms Dearth was transferred to another officer who recorded that Ms Dearth advised that [Child 1] had remained in her full-time care and that she had been supporting him until April 2019. It is apparent that the officer with whom Ms Dearth secondly spoke treated this as an objection by Ms Dearth to the Department’s decision of 1 May 2019. That officer also recorded that she had explained to Ms Dearth that Ms Dearth’s objection was due to be lodged by 14 June 2019 and that unless there was a special circumstance that prevented her from lodging her objection by that date the objection decision would only apply from 9 August 2019.
On 19 December 2019 the Department “partly allowed” Ms Dearth’s objection and made the decisions set out at [3] above. The consequence of the decision not to make a determination under subsection 87AA(2) meant that the Department’s decision with respect to the care percentages for [Child 1] only took effect from 9 August 2019.
For completeness the Tribunal observes that the Department also made a separate decision on 1 May 2019 that as from 22 April 2019 [Mr A]’s care percentage for [Child 1] was 100%. As far as the Tribunal is aware, there has been no objection to that decision and consequently it cannot be subject to any review by the Tribunal and the outcome of this review will not affect that decision.
The Tribunal heard Ms Dearth’s application for review on 24 March 2020. She participated by telephone and gave sworn oral evidence. The Department did not appear. The Tribunal has had regard to Ms Dearth’s oral evidence and also documents that the Department provided the Tribunal in compliance with subsection 37(1) of the AAT Act, which are paginated 1-272.

ISSUES

The issues the Tribunal must consider are:
·Whether there was a change in the care of [Child 1] on 11 February 2019; and
·Whether there were special circumstances that prevented Ms Dearth from lodging her objection within 28 days after being served with notice of the Department’s care percentage decision of 1 May 2019.

CONSIDERATION

Ms Dearth’s evidence was to the effect that she and her husband, being [Child 1]’s stepfather, reside in [City 1]. She said that [Child 1]’s stepfather had arranged employment for [Child 1] with [Company 1] in [City 2], which commenced mid February 2019. At that stage [Child 1] was 16, nearing 17 years of age. She said that the arrangement at the time that [Child 1]’s stepfather organised this employment for [Child 1] was that [Child 1] would work two weeks in [City 2] and one week off, when he would return to [City 1]. That however did not eventuate, and [Child 1] only returned home for two weekends, one at the end of February and the other during March.
Ms Dearth said that [Child 1] has special needs with respect to both his physical and mental health. She said that after [Child 1] departed for [City 2] she remained in daily contact with him to assist him with his decision making and to monitor his well-being. That evidence of Ms Dearth is supported by a letter [Child 1] signed that appears at page 74 of the hearing papers.
Ms Dearth also told the Tribunal that following [Child 1]’s move to [City 2] she regularly sent him money. A copy of a statement detailing the transactions for the period 1 August 2017 to 26 April 2019 for an account [Child 1] held with [Bank 1] is in evidence at pages 167-182 of the hearing papers. That reveals a deposit of $1,000 on 4 March 2019 under the description “[Child 1] sav”, and deposits of $200 and $50 on 18 and 23 March 2019 under the description “[Child 1] food sav”. Ms Dearth’s evidence was that this was money she transferred to [Child 1].
The Tribunal notes that there is a letter from [Mr A] dated 17 September 2019 at pages 156-159 of the hearing papers in which he says that when [Child 1] moved to [City 2] for employment his employer provided [Child 1] with accommodation, food and also paid him a wage. He also said that [Mr B], who is the principal of [Child 1]’s employer, kept Ms Dearth “updated on [Child 1]” and that it was Ms Dearth who instigated most of the conversations with [Mr B] to enable that.
[Mr A] also provided the Department with an undated letter from [Mr B] (page 164 of the hearing papers) in which [Mr B] advised that [Child 1] had worked for [Company 1] between 4 March and 26 June 2019 and that he was provided with food and accommodation based in [City 2] during that period and was paid a wage of $800 a week. [Mr B] said that [Child 1] had told him that Ms Dearth was taking money from [Child 1]’s bank account during that period. That however is not verified by the copy of [Child 1]’s bank statement that is in evidence nor by [Child 1] in his letter that is in evidence. The Tribunal does not accept that Ms Dearth took money from [Child 1]’s account.
[Mr B] also said in his letter that [Child 1] had told him that he did not want to go home because of “constant abusive phone calls from Ms Dearth”. Again, that is not verified by [Child 1] in his letter. The Tribunal also does not accept that Ms Dearth abused [Child 1] during their phone calls.
The Tribunal accepts the evidence of Ms Dearth with respect to the care that she says she provided [Child 1] following [Child 1] moving to [City 2] for employment. She continued to provide [Child 1] with financial support, although clearly not as much as what she had previously provided, and that is consistent with [Child 1] receiving an income and not needing as much financial support. She continued to monitor [Child 1]’s well-being and assisted him with that and other decisions a 16 to 17 year old child living away from home needed to make. She continued to provide him with emotional support in that period. She also provided him with accommodation and no doubt victuals on the two weekends he returned home following his move to [City 2].
Although the manner in which Ms Dearth provided care for [Child 1] may have changed, as a consequence of [Child 1] obtaining employment in [City 2], the Tribunal considers that the
Department was wrong to conclude Ms Dearth did not continue to provide care for [Child 1]. As a child grows older the nature of the care that a child needs from a parent will obviously change.
In the circumstances therefore the Tribunal sets aside the decision of the Department made under subsection 54F(1) of the Act to revoke Ms Dearth’s care percentage for [Child 1]. This is simply because the decision was wrong and Ms Dearth was continuing to provide 100% of the care for [Child 1] notwithstanding that he took on employment in [City 2].
As mentioned above, on 1 May 2019 the Department posted Ms Dearth a letter notifying her of its decision. It explained that “the care arrangement for your child has changed”. It informed Ms Dearth that she would not be receiving any further child support from [Mr A] from 2 February 2019 “because the amount of time you care for [[Child 1]] is not enough to receive child support”. As mentioned, the Department provided Ms Dearth with no other information regarding the care percentage decision it made. Specifically, it did not notify Ms Dearth what it had determined her care percentage for [Child 1] was from 2 February 2019. The Department did advise Ms Dearth in that letter that Ms Dearth could ask the Department “to review the decision...within 28 days from the date you receive this letter”. Read in context, it seems to the Tribunal that anyone not conversant with the legislation relating to child support, such as Ms Dearth, who read that letter would consider that the decision to which the Department referred when advising the deadline for review of the decision, was a decision of the Department that [Mr A] no longer had to pay child support. The Tribunal considers that Ms Dearth would not comprehend by what the Department stated in its letter that the Department had made a care percentage decision, and this simply is because the Department did not in any coherent way say that it had revoked Ms Dearth’s care percentage of 100% on 1 February 2019 and determined her care percentage was 0% from 2 February 2019.
Subsections 87AA(1) and (2) of the R&C Act together have the effect that if a person objects to a care percentage decision more than 28 days after receiving notice of it, any decision of the Department allowing the objection, so as to vary of substitute the child support percentage decision, shall only apply from the date of the objection, unless there were special circumstances that prevented the person from lodging the objection within 28 days. If there were special circumstances, then the Department, or the Tribunal in the Department’s place, can extend by an appropriate time the period within which the parent can lodge the objection.
The Department considered in this matter that there were no special circumstances preventing Ms Dearth from lodging her objection within 28 days from receiving notification of its decision.
Ms Dearth told the Tribunal that she did not know she could object to the Department’s decision to change her care percentage for [Child 1]. She also said that she had called the Department after receiving the letter but found the officer from the Department with whom she spoke to be very rude and felt bullied by him. Within the hearing papers there is a note of a conversation that she had with an officer of the Department on 21 June 2019, but that in any event is after the date on which she ought to have lodged the objection in accordance with subsection 87AA(1).
The Tribunal considers that there is a special circumstance in this case that effectively prevented Ms Dearth lodging an objection to the Department’s care percentage decision within 28 days from receiving the Department’s letter of 1 May 2019. That special circumstance is that the care percentage decision that the Department made was not communicated to Ms Dearth comprehensibly in the letter. Indeed, it is arguable that the Department, by its letter, did not notify Ms Dearth of its care percentage decision. All the Department said was “the care arrangement for your child has changed” and that “the amount of time you care for your child is not enough to receive child support”. The term “care percentage decision” is defined in section 4 of the R&C Act to mean:
…a decision as to the particulars of an administrative assessment, or as to the particulars of a notional assessment, to the extent that the decision involves (wholly or partly):
(a) a determination of a person's percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act; or

(b) a determination relating to a person that has effect, under section 54K of that Act, as if it were a determination made under such a provision.

As already indicated, in the Tribunal’s view the Department did not in any clear or cogent way notify Ms Dearth in its letter of 1 May 2019 of its determination with respect to Ms Dearth’s percentage of care for [Child 1]. The Department did not explicitly tell Ms Dearth that it had revoked her existing percentage of care and it did not explicitly tell her what it had determined to be her new percentage of care, which was 0%. The fact that the Department did not notify Ms Dearth of those things would have resulted, in all likelihood, in Ms Dearth failing to comprehend what she had to do if she disagreed with the Department’s determination that her care percentage was 0% from 2 February 2019, and that is simply because she would not have known that was the Department’s decision from what the Department said in its letter of 1 May 2019.
Accordingly, in the Tribunal’s view the Department’s decision not to make a determination under subsection 87AA(2) was also wrong and the Tribunal sets aside that decision and determines that the reference in paragraph 87AA(1)(b) is 100 days, which mean the period by which Ms Dearth could have made her objection is beyond 9 August 2019.

DECISION

The Tribunal sets aside the decision of the Child Support Registrar made on 19 December 2019 “to accept the change in care for care [Child 1] as 0% to Ms Dearth and 0% to [Mr A] from the 11 February 2019” and, in substitution, decides that there is no change to the care percentages for [Child 1].
The Tribunal sets aside the decision of the Child Support Registrar also made on 19 December 2019 not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 and, in substitution, determines that the 28 days referred to in paragraph 87AA(1)(b) is to be 100 days

[2020] AATA 1760

24 March 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction