Eads and Boyd (Child support)

Eads and Boyd (Child support) [2020] AATA 5822 (16 November 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS: 2020/AC019642
2020/SC020006

APPLICANT: Mr Eads
OTHER PARTIES: Child Support Registrar
Ms Boyd

TRIBUNAL:Member P Noonan
DECISION DATE: 16 November 2020
DECISIONS:

2020/AC019642

The decision that Ms Boyd has 100% care of the child [Child 1] from 26 October 2019 is affirmed.

2020/SC020006

The decision that the date of effect of this care decision is 26 October 2019 is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 should be refused and therefore the date of effect of the decision that Ms Boyd has 100% care of the child [Child 1] is the date she lodged her objection, being 7 May 2020.

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 – decision under review affirmed

CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – special circumstances exist – decision under review set aside and sent back with direction about date of effect

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

This decision is concerned with the correct percentage of care attributable for the child [Child 1] and the date of effect of any decision related to that care. Mr Eads and Ms Boyd are the parents of [Child 1].
On 24 October 2019 Mr Eads notified the Child Support Registrar (the Registrar) of a change in care with respect to [Child 1]. He notified that since 1 October 2019 the care of [Child 1] had changed from 100% to Ms Boyd to 0%.
On 21 February 2020 the Registrar decided that, from 26 October 2019 the care of [Child 1] was 0% with respect to both Mr Eads and Ms Boyd. On 7 May 2020 Ms Boyd objected to this decision.
On 21 July 2020 the Registrar decided to allow Ms Boyd’s objection and determined that she had 100% care of [Child 1] from 20 February 2019 with effect from 26 October 2019.
Mr Eads has appealed both the care decision and the date of effect decision to the Tribunal.
A hearing into the matter was held on 16 November 2020 at which Mr Eads gave evidence by conference telephone. The Tribunal attempted to contact Ms Boyd on several occasions at the appointed time for the hearing without success. The Tribunal was satisfied that Ms Boyd had been appropriately notified of the time and date and manner of the hearing. The Tribunal determined to continue with the hearing solely with Mr Eads. Ms Boyd therefore did not participate in the hearing but remains a party to the matter.

ISSUES

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

What is the care of [Child 1]?

Mr Eads gave evidence that [Child 1] had moved out of Ms Boyd’s at some time during October or November 2019. He had variously lived with his ex-stepfather and friends. The Registrar records that on 17 February 2020 Mr Eads stated that [Child 1] had returned to Ms Boyd’s 100% care from after Christmas or possibly from 1 January 2020. Mr Eads noted that his recollection of events at that time was hazy but he thought he was living away from Ms Boyd for some time and had not actually returned to Ms Boyd. He submitted that in fact [Child 1] has since then largely been living at his girlfriend’s place and is working for cash in hand for her father. He is however unable to get evidence of this from the third parties involved.
I also raised that the records indicate that there has been no alternative application for family tax benefit in respect to the care of [Child 1] which may indicate no permanent change in care had occurred. Mr Eads stated it was only the fact that he received a bill for child support arrears that he decided to take action.
Section 50 of the Act requires a new determination of a percentage of care to be made where the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. After considering the evidence in this matter I am not satisfied that there has been a change in the pattern of care for [Child 1] from that already reflected in the care arrangement of 100% to Ms Boyd. This is because, on the evidence before me, I am satisfied that [Child 1] only moved away on a trial basis in October or November 2019 and moved back in with Ms Boyd around 1 January 2020. While he likely does spend time with his girlfriend I am satisfied that he is still also spending time in Ms Boyd’s care and she has sole responsibility for his maintenance. As such there has not been a demonstrated permanent change in the care of [Child 1]. Accordingly, there is no basis for revoking the previous determination of care.
Date of effect considerations
Subsection 87AA(1) of the Registration 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 a discretion to the Registrar to extend the 28 day time limit to a period determined to be appropriate if there are special circumstances that prevented the person from lodging the objection within 28 days.
I find that Ms Boyd lodged her objection more than 28 days after she was served with notice of the decision to revoke the previous care determination.
The Child Support Guide (the Guide) discusses this consideration at point 4.1.8. While the Tribunal is not obliged to consider the Guide it will generally do so if it considers it is in accordance with the objects of the relevant legislation. Point 4.1.8 sets out the following:

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 Services Australia that the decision was being contested or raised their concerns in other ways - for example, a complaint to Services Australia 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.
Example: Harry and Mia are assessed for the costs of the child Kiara, who is in the shared care of Mia and Harry. Harry notified the Registrar on 13 August that the care of Kiara had changed on 1 August. The Registrar made a care percentage decision on 26 August that Harry now has 40% care and Mia has 60% care with effect from 1 August. Mia objected to that decision on 11 December, explaining that they were not able to lodge the objection earlier. The Registrar considered the objection and decided on 6 February to allow the objection, as Harry's care percentage is 36% and Mia's care percentage is 64%.
The Registrar considered if special circumstances prevented Mia from lodging the objection within 28 days. The Registrar is satisfied that special circumstances did exist. The Registrar then considered if the discretion to extend the period should be exercised. The Registrar is satisfied that Mia did not rest on their rights and that Harry would not be prejudiced by a decision to extend the period in which to lodge the objection. The Registrar makes a determination under section 87AA(2) that the objection was lodged within time.
The assessment is amended from 1 August to use the objection decision percentages (Harry 36% and Mia 64%) to replace the original care percentage decision.[1]
[1] type="1">
In this instance I consider the Guide is in accordance with the objects of the legislation and it is reasonable to consider this point.
Ms Boyd is recorded by the Registrar as stating as follows:
Ms Boyd explained that since November 2019, she has had a lot on her plate and as a result she was emotionally and physically exhausted. Ms Boyd said she was not aware that her payments had stopped until she started getting termination letters from housing (due to rental arrears). Ms Boyd explained because her payments had stopped she was way behind in her rent and ended up appealing to the tribunal to keep her house. Ms Boyd explained her housing officer has been great and would provide any evidence regarding the stressful time and the impact of these events.
Ms Boyd added that she had her car stolen around January February 2020. It was around this time that her father was having a [medical procedure] and further tests resulted in her father being diagnosed with [cancer]. Her father has had to undergo chemotherapy and while she was not his carer (her mother was) this has impacted her greatly as her father has always looked after her and they are very close. Ms Boyd has been helping her mother during this time. Ms Boyd explained that because she had been trying to provide for her family and her partner at the time (who wasn`t working or contributing) she had been stealing and was caught and in lock up for a couple of nights. Ms Boyd is not sure of the exact dates she was incarcerated up but it was all around the same time of year. Ms Boyd had to attend court and these charges are still ongoing, however the hearings have been adjourned several times due to COVID 19.
Mr Eads submitted that Ms Boyd’s father lives in Perth and she has not been over there lately as far as he knows. He confirmed Ms Boyd’s father did have cancer.
I have carefully considered the special circumstances raised by Ms Boyd with the Registrar. The legislation is clear that the special circumstances must have prevented Ms Boyd from lodging her objection. I am satisfied that Ms Boyd was properly notified of the decision of the Registrar. It does appear that Ms Boyd has experienced some level of stress in her life during the time in question however there is nothing raised that obviously prevented her from objecting in a reasonably timely manner. On balance, and having considered the examples set out in the Guide, I am not satisfied special circumstances that prevented the lodgement of the objection, have been established.
I note that the Registrar found Mr Eads would be disadvantaged by a decision to apply the care for [Child 1] however he was aware that Ms Boyd had re-established care in January 2020. Mr Eads gave evidence that he had in fact stated that [Child 1] was likely living with mates or couch surfing from that time. He stated that he first became aware of this issue in June 2020 when his taxation return was withheld. He was not informed that Ms Boyd had objected to the decision until early June 2020. I find that the evidence reflects Mr Eads was first contacted by the Registrar on 9 June 2020 to inform of Ms Boyd’s objection. He submitted that he had proceeded on the basis of the original care decision and budgeted accordingly and he had checked regularly that he was not in arrears. He used the money to pay for other bills. He is under financial strain. He has never previously been in arrears. I note that in a conversation on 22 February 2020 Mr Eads is recorded as informing the Registrar as follows:
“[Mr Eads] in contact stated that [Child 1] may be back in the care of [Ms Boyd] ‐ he is not sure of date and we have pended care as from 01/01/20 in the interim of a discussion with [Ms Boyd] who I have today tried to call without success. [Mr Eads] advised he is not even sure if [Child 1] is back living with [Ms Boyd] ‐ he is not sure where [Child 1] is now living. I advised the onus is on [Ms Boyd] to notify if [Child 1] has returned to her care and being we have now finalised a termianting event, onus will be on [Ms Boyd] to lodge a new child support registration ‐ if she does we will accordingly commence contact with [Mr Eads]. [Mr Eads] advised that being the situation in the [Child 1] was not in [Ms Boyd]'s care and she did not notify Child Support this, it [Ms Boyd] re‐registers the case he would be not agreeing to the care unless [Ms Boyd] provides evidence support that [Child 1] has actually returned to her care and remains residing with her ongoing”.
I am satisfied on the evidence that Mr Eads was not aware with any degree of certainty as to the care arrangements for [Child 1] prior to being informed of Ms Boyd’s objection on 9 June 2020. I am satisfied that Mr Eads has proceeded to budget according to the care decision made by the Registrar of 0% care to both parents until 9 June 2020. I accept that the subsequent arrears created have caused him financial difficulties and find that he will be disadvantaged by a decision to extend the period for Ms Boyd to lodge the objection.
I note that the Registrar found that Ms Boyd had not rested upon her rights due to contacts she made with the Family Assistance Office from 17 March 2020 about care recorded. I accept that Ms Boyd did not rest upon her rights in this manner.
Overall, I have found that special circumstances preventing Ms Boyd from lodging her objection have not been established in this matter. I have also found that Mr Eads will be disadvantaged by a decision to extend the period for Ms Boyd to lodge the objection. While I have also found that Ms Boyd has not rested upon her rights I am satisfied that the weight of my findings lies with Mr Eads in this matter. Accordingly, the care determination that Ms Boyd has 100% care of [Child 1] must take effect from the date she lodged her objection, being 7 May 2020.
DECISIONS
2020/AC019642
The decision that Ms Boyd has 100% care of the child [Child 1] from 26 October 2019 is affirmed.
2020/SC020006
The decision that the date of effect of this care decision is 26 October 2019 is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 should be refused and therefore the date of effect of the decision that Ms Boyd has 100% care of the child [Child 1] is the date she lodged her objection, being 7 May 2020.

[2020] AATA 5822

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Statutory Construction

Jurisdiction

Procedural Fairness

Judicial Review