Denzil and Endicott (Child support)

[2019] AATA 5942

Denzil and Endicott (Child support) [2019] AATA 5942 (27 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/MC017538 & 2019/MC017474

APPLICANT:  Mr Denzil

OTHER PARTIES:  Child Support Registrar

Ms Endicott

TRIBUNAL:Member M Baulch

DECISION DATE:  27 November 2019

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of notification of the care change – existing percentage of care determinations revoked and new determinations made – decision under review affirmed – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances

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 application for review is about the child support assessment applying to Mr Denzil and Ms Endicott.  They are separated parents with two children, born in 2005 and 2010 respectively.

2. On 3 November 2018, the Department of Human Services – Child Support (the Department) accepted an application for a child support assessment in respect of those children and determined that Mr Denzil was liable to pay child support to Ms Endicott from 22 October 2018 at an amount determined on the basis that Mr Denzil had 0% care of the children and Ms Endicott 100% care.

3. On 2 April 2019, Mr Denzil objected to that decision and, on 2 September 2019, that objection was allowed.  The objections officer decided that the child support assessment applying from 22 October 2018 should be based upon Mr Denzil having 14% care of the children and Ms Endicott having 84% care.  However, the officer determined that the date of effect of their decision would be 2 April 2019 because Mr Denzil had not demonstrated that there were special circumstances that prevented him from lodging his objection within 28 days of being notified of the decision made on 3 November 2018 (the decisions under review).  Mr Denzil has now applied to this tribunal for an independent review of the Department’s decisions.

4. A hearing into the application for review was held on 27 November 2019. Mr Denzil and Ms Endicott both discussed the application for review with the tribunal by conference telephone and both gave sworn evidence during the hearing. The tribunal had before it relevant documents provided to it by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 78, copies of which Mr Denzil and Ms Endicott both confirmed they had received prior to the hearing.

ISSUES

1. The statutory provisions relevant to this review application are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issues for me to determine in this application for review are:

   ·      What should be the care percentages applying to the child support assessment from 22 October 2018; and

   ·      From what date should the objections officer’s decision, to allow Mr Denzil’s objection, apply.

CONSIDERATION

1. The Act provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula that is set out in Part 5 of the Act, which contains variables such as the parents’ adjusted taxable incomes, the number of children, their ages and their percentages of care.

What should be the care percentages applying to the child support assessment from 22 October 2018?

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their children during a care period.  Section 54A of the Act provides that the extent of care that a person is to have may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.

2. Care is generally calculated over a care period, which is a period that the Registrar or the tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act).  The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide (the Guide),[1] is that a care period is generally a 12 month period from the day on which the care arrangements change.  I am not bound by the Department’s policy, such as that set out in the Guide, but in the interests of consistency in decision-making a tribunal would generally apply such policy if not inconsistent with the purposes and objects of the Act.[2]  I considered the policy to be unobjectionable in this case and that it should be applied.

   [1] Guides to Social Policy Law, Child Support Guide, Department of Social Services, version 4.44 (at Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

3. I therefore determined that the care period to be considered in this case is 22 October 2018 (the date the application for a child support assessment was made) until 21 October 2019.

4. Mr Denzil’s evidence was that he has care of the children each second weekend for two nights.  Ms Endicott disputed that Mr Denzil’s care of the children was so regular or was usually for two nights.  However, her evidence was that Mr Denzil would have extra care during the week in school holidays.  For the purposes of determining a pattern of care, Ms Endicott did not dispute that there were be an average of 52 nights per year when Mr Denzil had care of the children.

5. I concluded that an appropriate pattern of care in this case was one under which Mr Denzil has care of the children for 52 nights per year.  Applying the rounding rules in section 54D of the Act (percentages greater than 50 are rounded up and percentages less than 50 are rounded down), this equates to Mr Denzil having a percentage of care of 14% and Ms Endicott having a percentage of care of 86% from 22 October 2018.

6. Therefore, I would have allowed Mr Denzil’s objection to the percentage of care decision made on 3 November 2018.

From what date should the objections officer’s decision to allow Mr Denzil’s objection apply?

1. There is no time limit on a person lodging an objection to a decision made by the Department about a percentage of care determination. However, if an objection is made more than 28 days after the notice of the care percentage decision was served upon the person, the objection decision only takes effect from the day the objection was made unless there are “special circumstances that prevented the person from lodging the objection within the period”, pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. In this case, notices of the care percentage decision were sent to the parents on either 3 November 2018 or 5 November 2018.  Mr Denzil made his objection on 2 April 2019. 

3. Mr Denzil could not be sure when he received the details of the child support assessments specifying the care percentages used in that assessment.  However he did not dispute that he received the notices and I was satisfied that he has made his objection more than 28 days after notification of the decision made on 3 November 2018 was served upon him.

4. The meaning of “special circumstances” is not defined in the Registration and Collection Act. For guidance, I had regard to the Department’s policy, set out in the Guide at 4.1.8, which states:

   Special circumstances

   In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:

   ·the parent was seriously ill or had an accident that stopped them from lodging an objection

   ·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

   ·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

   ·the parent reasonably relied upon inaccurate or misleading information.

   If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (section 87AA(2)). The Registrar will consider if:

   ·the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?

   ·the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to DHS that the decision was being contested or raised their concerns in other ways - for example, a complaint to DHS or the Ombudsman?

   If the Registrar makes a determination under section 87AA(2) to extend the period in which to lodge the objection, then the objection is considered to have been received within the prescribed timeframe. The objection decision will then replace the original care percentage decision from the first day that original decision had effect.

   Again, I considered the policy to be unobjectionable in this case and, in the interests of consistency in decision making, considered that it should be applied.

5. Mr Denzil’s evidence was that perhaps he missed reading the letter or did not really understand it.  He stated that English is not his first language and he sometimes has trouble understanding letters and needs to have his wife read them to him.

6. Communication difficulties, such as poor English language skills, may constitute a basis for finding that special circumstances exist according to the policy set out in the Guide, above.

7. However, in this case I noted that Mr Denzil contacted the Department by telephone on 16 February 2019, during which the care percentages were discussed [see folio 51].  Mr Denzil was advised of his right to make an objection and that he could do so by calling the Department.  Despite this advice, it took Mr Denzil until 2 April 2019 to actually make his objection.

8. Mr Denzil did not make his objection until nearly two months after he was given clear advice of his right to objection and how to make an objection. I was not satisfied that Mr Denzil’s English language difficulties completely explain the delay in him making his objection. As a consequence, I was not persuaded that there were special circumstances that prevented Mr Denzil making his objection within 28 days of being notified of the particulars of the child support assessment decision made on 3 November 2018. Therefore, the discretion provided for in subsection 87AA(2) of the Registration and Collection Act should not be exercised in Mr Denzil’s case.

9. This means that the date from which the revised care percentages (14% for Mr Denzil and 86% for Ms Endicott) effect the child support assessment is prescribed by subsection 87AA(1) of the Registration and Collection Act, and that date is the date Mr Denzil made his objection; 2 April 2019.

10. Having arrived at decisions that are identical to those made by the objections officer, I therefore affirmed the decisions under review.

DECISION

The decisions under review are affirmed.