Delacrux and Delacrux (Child support)

Delacrux and Delacrux (Child support) [2020] AATA 1480 (14 February 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/BC017826
APPLICANT:  Mr Delacrux
OTHER PARTIES:  Ms Delacrux
Child Support Registrar

TRIBUNAL:Member P Jensen
DECISION DATE: 14 February 2020
DECISION:

The decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside, and the matter is remitted to the Child Support Registrar for reconsideration in accordance with a direction that Mr Delacrux objected to the original care decision within 28 days of being served with a notice of that decision, and therefore section 87AA of the Child Support (Registration and Collection) Act 1988 does not apply.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there were special circumstances that prevented the objection being lodged in time – objection lodged on time - decision under review set aside and remitted to Child Support Registrar for reconsideration

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

Mr Delacrux and Ms Delacrux are the parents of [Child 1] and [Child 2]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) in 2016.
In April 2018, the CSA decided to record Mr Delacrux as providing 72% care and Ms Delacrux as providing 28% care to both children, with effect from 2 March 2018.
In May 2018, Court Orders were made concerning the parents’ care of the children from 6 July 2018.
On 19 July 2018, the child support case was terminated.
On 16 January 2019, Ms Delacrux applied to register a second child support case. As the CSA has now acknowledged, it made a number of mistakes in the course of registering that second child support case, including the making of incorrect care decisions. On 3 April 2019 the CSA made two further care decisions which superseded the earlier incorrect care decisions. On 3 April 2019 the CSA decided that:
· in respect of [Child 1], Mr Delacrux is recorded as providing 100% care, with effect from 16 January 2019, and Ms Delacrux is recorded as providing 0% care, with effect from 6 July 2018; and
· in respect of [Child 2], Mr Delacrux is recorded as providing 0% care, with effect from 6 July 2018, and Ms Delacrux is recorded as providing 100% care, with effect from 16 January 2019.
Mr Delacrux objected to the care decision in respect of [Child 2]. So far as is relevant for present purposes, section 87AA of the Child Support (Registration and Collection) Act 1988 (“the Act”) provides, in effect, that if a person objects to an original care decision more than 28 days after they were served with a notice of the decision, and there were not special circumstances preventing them from objecting within 28 days, and their objection is allowed, then the objections officer’s care decision only has effect from the date on which the person belatedly objected.
On 17 October 2019 an objections officer allowed Mr Delacrux’s objection. However, the objections officer also concluded that Mr Delacrux first objected to the care decision on 20 August 2019, which was more than 28 days after he had been served with a notice of the care decision, and there had not been special circumstances preventing him from objecting within 28 days. The objections officer made the following two decisions:
· a care decision to record Mr Delacrux as providing 20% care to [Child 2], with effect from 16 January 2019, and to record Ms Delacrux as providing 80% care to [Child 2], with effect from 8 [sic] July 2018; and
· a decision to not make a determination pursuant to subsection 87AA(2) of the Registration Act (which meant that the objections officer’s care decision took effect from 20 August 2019).
Mr Delacrux applied to the Tribunal for further review. I conducted a hearing on 14 February 2020. Mr Delacrux and Ms Delacrux attended the hearing in person. At the hearing, Mr Delacrux confirmed that he was only seeking review of the objections officer’s second decision.
Section 87AA, so far as is relevant for present purposes, commences as following:
Date of effect of objections relating to care percentage decisions that are allowed
(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 …

Section 80 of the Act provides generally for objections to various types of decisions. Such objections must be in writing: subsection 80(1) of the Act. Section 80A of the Act provides specifically for objections to care decisions. Such objections do not need to be in writing. Section 84 of the Act states: “The objection must state or give fully and in detail the grounds relied on.”
On 3 April 2019 the CSA wrote to both parents and informed them of the care decisions that it had made. 28 days later, on 1 May 2019, Mr Delacrux contacted the CSA. Its file note of the conversation includes the following:
During the lengthy discussion we discussed the current care levels for the children. [Mr Delacrux] advised that he does have overnight care of [Child 2] but he and [Ms Delacrux] are not following the court orders. [Mr Delacrux] explained that he had both children in his care for 4wks over the Xmas holidays and all of the Easter holidays. [Mr Delacrux] also confirmed that for Jan, Feb and March he would have had [Child 2] for approx 6 nights.
I explained to [Mr Delacrux] that our original care decision for each parent to have a child in their care 100%. I advised [Mr Delacrux] if there has been a new care event we could record the new details and contact [Ms Delacrux] to confirm. I discussed whether there is an ongoing pattern of care for [Child 2] during school term. [Mr Delacrux] advised that he has [Child 2] when [Ms Delacrux] asks and it is sporadic, however [Mr Delacrux] advises that with school holidays and additional nights during school term he feels that 52 nights of care would correctly reflect the care he has had and will have moving forward. [Mr Delacrux] based this figured [sic] on the Xmas and Easter holidays, additional nights during school term for Jan, Feb and March and remaining school holidays.
I advised [Mr Delacrux] that I will need to review [Ms Delacrux’s] registration to see if a different level of care was recorded, advised [Mr Delacrux] that he could object to the original decision (advised 60 day process) or lodge a new care change. Advised [Mr Delacrux] that I will document the discussion but I will not record the care change until I determine the more appropriate option for the care to be recorded.
…
[Officer 1 name]
One can object to a care decision without using the word “object”. It is clear from the first two paragraphs reproduced above that Mr Delacrux was disputing the CSA’s decision concerning the parents’ recorded care of [Child 2]. In the context of a child support case having been registered from 16 January 2019, he referred to the care “he has had and will have”, and provided details of the care he had provided from the 2018-19 Christmas holidays onwards. On balance, I find that the conversation that is recorded in those two paragraphs constitutes a valid objection to the care decision made on 3 April 2019 concerning the parents’ recorded care of [Child 2].
For the sake of completeness, it is worth noting some further matters. In the third paragraph reproduced above, the CSA informed Mr Delacrux that he could object to the care decision, but in my opinion he had already done so. The CSA also informed Mr Delacrux that it would “determine the more appropriate option for the care to be recorded.”
On 11 May 2019 the CSA had another lengthy conversation with Mr Delacrux. The CSA’s file note of the conversation includes the following:
Discussed Mr Delacrux’s claim that he currently has at least 52 nights per year for [Child 2], however Mr Delacrux advised that he is finding it difficult to establish the pattern of the care to prove the nights. Advised Mr Delacrux that I will still need to review Ms Delacrux’s application to check the nights claimed. I explained to Mr Delacrux he may need to object to the decision we made if the care was reported as 100% because we did confirm this with him as well.
I advised Mr Delacrux that we can record a new care event if the care has since changed, confirmed that to establish a pattern we would consider 3 events (weekly/fortnightly care etc). Advised Mr Delacrux to check his records for [Child 2’s] care and we can discuss again next Friday.
[Officer 1 name]
On 15 May 2019 the CSA relevantly noted:
Care of child [Child 2] discussed with [Mr Delacrux] (regular care) - [Mr Delacrux] advised he had discussed the issue with [Officer 1 name] and is awaiting her recommendation.
On 4 June 2019 the CSA relevantly noted:
*Care - [Mr Delacrux] advised that he has regular care of child [Child 2] even though there is a CO reflecting that [Ms Delacrux] has 100% care of [Child 2] and he has 100% care of [Child 1]. …. Mr Delacrux advised he had been through all thr [sic] above information with [Officer 1 name] and she seems to understand the situation without having to repeat himself. He asked for a callback from [this Case Manager].
Advised 48 hour call back …
[Officer 2]
On 5 August 2019 the CSA relevantly noted:
Mr Delacrux called to follow up on outstanding issues
…
I apologized that he had not received an update on his outstanding issues. I acknowledged that it is frustrating and that he just wants to be able to get things sorted. Mr Delacrux advised that he had previously told his CM about the additional care of [Child 2], and was advised that she would look into it as the level of care would have an impact on the current arrears. … Mr Delacrux advised us when we spoke to him in May 2019, days that he had [Child 2], CM noted that she would determine what the best option would be for him regarding the care for [Child 2] and get back to him. I advised I would follow up with CM and request a call back. …
[Officer 3]
On 20 August 2019 the CSA relevantly noted:
Mr Delacrux stated he has been waiting for months for CM to tell him what needs to occur with the care of [Child 2]. … Advised Mr Delacrux that I can see we spoke with him 18/03/19 regarding care for [Child 2] being incorrect, however officer didn’t explain he would need to object. …
Informed Mr Delacrux I could see conversation 25/03/19 in which the officer discussed objection, however would have CM review and determine if correspondence 22/03/19 would constitute an objection and they would call him back.
Advised Mr Delacrux he needs to lodge an objection to the care decision made for [Child 2], explained that I can transfer him through to objections now and explain that we have contributed to the delay in the objection being lodged and also ask if they could consider correspondence 22/03/19 as the objection lodgement date.
…
[Officer 4 name]
If Mr Delacrux had not objected on 1 May 2019, it would have been necessary to consider whether the CSA’s statements that it would consider his matter and advise him on the best course of action, and its delay in providing that advice, constituted special circumstances that prevented Mr Delacrux from promptly objecting. However, for the reasons stated above, it is not necessary to do so.
Finally, I note that the objections officer’s decisions were made on 17 October 2019, and the parents were notified of those decisions in letters dated 17 October 2019. The letters also stated that any application for review by the Tribunal needed to be lodged within 28 days. 28 days later, on 14 November 2019, Mr Delacrux lodged his application for review by the Tribunal.

DECISION

[2020] AATA 1480

14 February 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction