Eidson and Child Support Registrar (Child support)

Eidson and Child Support Registrar (Child support) [2021] AATA 2427 (14 June 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2021/BC020965
APPLICANT: Miss Eidson

OTHER PARTIES: Child Support Registrar
TRIBUNAL:Member J Thomson
DECISION DATE: 14 June 2021
DECISION:

The Tribunal sets aside the decision under review, and in substitution decides that the care percentage in place prior to Miss Eidson’s change in care notification on 20 March 2019 of 100% to [Mr A] is revoked with effect from 31 January 2019, and that from 1 February 2019, a terminating event occurred and neither parent was providing care for [Child 1].

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether a terminating event happened in relation to the payee – none of the parents had at least 35% care – terminating event happened - decision under review set aside and substituted – date of effect of the tribunal’s decision – late application for review - whether there were special circumstances that prevented the application for review 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 omitted 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

Miss Eidson seeks review of an objection decision made by the Child Support Agency (the Agency) on 5 September 2019. This decision disallowed her objection to a decision dated 30 May 2019 rejecting her application for a change to the care percentages for the parents’ son, [Child 1], born 2003.
The Tribunal heard the matter on 5 May 2021. Miss Eidson attended the hearing via conference telephone and gave affirmed evidence. The other party, [Mr A] elected not to be a party to the proceeding and did not attend the hearing. The Tribunal had before it documentation provided by the Agency (Exhibit 1), and documentation provided by Miss Eidson (Exhibit A). Although Miss Eidson had copies of the Agency’s documents with her at the hearing, she did not have copies of her documents, Exhibit A, with her, but said she was familiar with their contents and agreed to the hearing proceeding, notwithstanding she did not have those documents with her.

ISSUES

The issues arising in this case appear in the Reasons set out below.

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence given by Miss Eidson at the hearing, and the documents contained in Exhibits 1 and A.
The law relating to care percentage determinations is found in the Child Support (Assessment) Act 1989. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent :
has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
Section 50 applies, relevantly if the parent:
has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate, and when such a divergence occurs, a parent can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same: What had happened until the date of the notification and what was likely to happen thereafter?
Prior to her notification of a change in care on 20 March 2019, the care percentages being assessed by the Agency were 100% to [Mr A] and 0% to Miss Eidson. At hearing, Miss Eidson’s case was that neither parent was having any care for [Child 1] from 1 February 2019, when [Child 1] went to live with his paternal grandmother, Ms [Ms A], on a permanent basis.
[Mr A] did not attend the hearing and the evidence given by Miss Eidson set out below was unchallenged.
The Agency’s documentation contained in Exhibit 1 records Miss Eidson notifying a change in care for [Child 1] on 20 March 2019. The Agency file note of Miss Eidson’s call on that date reflects that she informed the Agency officer with whom she spoke that on or about 1 February 2019, following a falling out with his father [Mr A] and his stepmother, with whom he had been living up until that date, and had gone to live with his paternal grandmother, Ms [Ms A].
She told the Agency officer that she had spoken with Ms [Ms A] who had informed her that she (Ms [Ms A]) was providing for [Child 1’s] accommodation, clothing, food and other necessities, and was not receiving any financial support from [Mr A].
On 22 March 2019, an Agency officer named [Officer A] contacted [Mr A] by telephone to discuss Miss Eidson’s change in care notification. The Agency’s file note of that discussion records [Mr A] informing the Agency officer that [Child 1] had gone to stay with his paternal grandmother, Ms [Ms A], at her house, but the change was not permanent, that he was staying there on holiday, and he would be returning to live with [Mr A]. However, when pressed by the Agency officer as to the date of [Child 1’s] return to [Mr A’s] house, [Mr A] said there was no definite return date, and that [Child 1] would return “when he felt like it”.
[Mr A] informed the Agency officer that he had paid [Child 1] $600 to $700 since the beginning of February 2019, and had also paid his mother, Ms [Ms A], three amounts of approximately $200 towards the cost of maintaining [Child 1], and that he [[Mr A]) was maintaining regular day-to-day contact with [Child 1], reiterating that although there was no definite date for [Child 1’s] return to live with [Mr A], [Child 1] was only “holidaying” at Ms [Ms A’s] house.
The Agency file note records its officer requesting [Mr A] to provide, by 5 April 2019, a corroborating statement from Ms [Ms A] regarding the arrangements under which [Child 1] was staying at her house, including the financial arrangements existing between [Mr A] and his mother regarding her care for [Child 1], supported by bank statements reflecting the payments [Mr A] had said he was making to his mother, Ms [Ms A], for [Child 1’s] maintenance and support, together with copies of receipts for any bills he had paid for [Child 1] since early February 2019. In default of providing this evidence, the Agency officer informed [Mr A] that the Agency could accept Miss Eidson’s notification and determine that a terminating event had occurred with regard to [Child 1].
On 27 March 2019, Miss Eidson contacted the Agency and was informed of [Mr A’s] comments reflected in the preceding paragraph. She informed [Officer B], the Agency officer with whom she spoke on that occasion, that she had approached Ms [Ms A] for a statement regarding the arrangements under which [Child 1] was staying with her, but Ms [Ms A] had declined to become involved in the matter.
On 1 April 2019, [Mr A] called the Agency and informed the Agency officer, [Officer C], with whom he spoke, that he could not support [Child 1] due to “teenage issues”, and that [Child 1] was living at his grandmother’s, Ms [Ms A’s], house but still being supported by [Mr A]. [Mr A] also informed the Agency officer that he was paying money to his parents for [Child 1], his school fees, mobile phone and giving him pocket money. He asserted he was still in regular contact with [Child 1] and Ms [Ms A], and undertook to provide the further evidence the Agency had requested from him in its recent letter by 5 April 2019.
On 30 May 2019, the Agency made its decision to reject Miss Eidson’s change in care notification with respect to [Child 1] on 20 March 2019.
It does not appear from the Agency’s file that [Mr A] provided any of the further evidence requested by the Agency, including a statement from Ms [Ms A], [Mr A’s]s bank statements reflecting payments made by him to his mother, Ms [Ms A], for [Child 1’s] support, or copies of any bills paid by [Mr A] for [Child 1’s] support prior to the Agency making its decision on 30 May 2019 to reject Miss Eidson’s change in care notification of 20 March 2019.
A file note dated 3 July 2019 at page 39 of the Agency’s papers, Exhibit 1, records the outcome of internal discussions between the Agency and the Family Assistance Office (the FAO) which appears to arise from an application by Ms [Ms A] to Centrelink for family tax benefit (FTB) based on Ms [Ms A] having 100% care of [Child 1]. Relevantly, this file note records a conflict arising as a consequence of the FAO entertaining an application for FTB with Ms [Ms A] as the 100% carer for [Child 1], without taking into account the earlier decision of the Agency to reject Miss Eidson’s notification of 20 March 2019 of 0% care to both parents from 1 February 2019, and recording [Mr A] as having 100% care of [Child 1].
This file note records [Mr A] confirming, in a telephone conversation with the FAO, the date of which is not specified, that he has not been delegating the care for [Child 1] to his mother, Ms [Ms A], that [Child 1] had left his care and was in Ms [Ms A’s]s 100% care from the date after the Agency was notified a change in care event had occurred – 2 February 2019 – and that [Mr A] agreed that his mother, Ms [Ms A], was entitled, as [Child 1’s] carer, to apply for and receive FTB, but has told the Agency he has been delegating [Child 1’s] care to Ms [Ms A].
On 5 July 2019, Miss Eidson objected to the Agency’s decision of 30 May 2019.
In the course of the objections process, an Agency officer named [Officer D] contacted [Mr A] via telephone on 17 July 2019 to discuss Miss Eidson’s objection to the Agency’s decision of 20 May 2019. [Mr A’s]s response is recorded in the objections officer’s file note of 17 July 2019 at page 81 of Exhibit 1 in the following terms. [Mr A] informed the objections officer that [Child 1] was [living] with his grandparents who lived about 3 km away; that he [[Mr A]] was still responsible for him and providing financial support; that [Child 1] generally stayed week nights with his [[Mr A’s]] parents, and stays with him [[Mr A]] on some weekends; he [[Mr A]] still pays for his school and TAFE fees for clothes, his driver’s licence and mobile phone etc; both he [[Mr A]] and his mother [Ms [Ms A]] are listed as emergency contacts with the school; and he [[Mr A]] is responsible for making any big decisions regarding [Child 1].
The file note concludes with the notations that [Mr A] would provide receipts and a statement from his mother by 31 July 2019, and that [Mr A] was not aware/did not believe his mother was receiving any Centrelink benefits for [Child 1].
It does not appear from the Agency’s file records, Exhibit 1, that [Mr A] ever provided the additional evidence referred to in the preceding paragraph to the Agency.
The Tribunal finds [Mr A’s] comments to the objections officer on 17 July 2019, referred to above, to be completely at variance with the comments attributed to him in the Agency’s file note dated 3 July 2019 at page 39 of Exhibit 1.
On 22 July 2019, in the course of a telephone conversation between Miss Eidson and another Agency officer, [Officer E], regarding the objections process, recorded at page 99 of Exhibit 1, Miss Eidson informed the Agency’s officer, relevantly, that she believed that [Child 1’s] paternal grandmother was receiving a carer payment from Centrelink for [Child 1], and that in May 2019, she had spoken with Ms [Ms A] who informed her that she had not received any financial support from [Mr A] and that she [[Ms A]] needed to go to Centrelink to see what support she could get from Centrelink for [Child 1].
On 1 May 2020, the Agency received a copy of the letter from [Mr A] addressed to Centrelink, forwarded by Centrelink to the Agency, a copy of which appears at page 147 of Exhibit 1, in which [Mr A] states:
I do not wish to claim family tax benefit for [Child 1] as he is staying with my parents, his grandparents, [named]… Thanks. [Mr A]
Considering the inconsistency in the evidence given by [Mr A] to Centrelink and the Agency regarding the circumstances in which care was being provided for [Child 1], reflected in the Agency’s file notes of 3 July 2019 and 17 July 2019 referred to above, the acknowledgement contained in [Mr A’s] letter to Centrelink, forwarded to the Agency on 1 May 2020, and Ms [Ms A’s] comments to Miss Eidson in the course of the telephone conversation in May 2019, reflected in the Agency’s file note of 22 July 2019 at page 99 of Exhibit 1, the Tribunal finds it reasonable to conclude that from 1 February 2019, when [Child 1] went to reside with his paternal grandmother, Ms [Ms A], a terminating event occurred and that from 1 February 2019, neither parent was providing care for [Child 1].
The Tribunal therefore sets aside the decision under review, and in substitution decides that the care percentage in place prior to Miss Eidson’s change in care notification on 20 March 2019 of 100% to [Mr A] is revoked with effect from 31 January 2019, and that from 1 February 2019, a terminating event occurred and neither parent was providing care for [Child 1].
Miss Eidson applied to the Tribunal on 8 March 2021 for review of the Agency’s objection decision dated 5 September 2019. In her evidence to the Tribunal at the hearing, she said she received notice of the Agency’s objection decision via surface mail on or about [a specified day in] September 2019, and therefore needed to apply to the Tribunal for review of the objection decision by on or about 22 October 2019, which she did not.
Subsection 95N(1) of the Child Support (Registration and Collection) Act 1988 (the Registration Act) provides, relevantly, that if, on AAT first review, the Tribunal substitutes a decision on an objection to a care percentage decision (paragraph (1)(a)), and the application for AAT first review was made more than 28 days after notice of the decision was given (paragraph (1)(b)), then, despite subsection 43(6) of the Registration Act, the decision as substituted by the Tribunal has or is taken to have had effect from the day the application for AAT first review was made, unless the Tribunal is satisfied pursuant to subsection 95N(2) of the Registration Act that there are special circumstances that prevented the application for AAT first review being made within the 28-day statutory period referred to in paragraph (1)(b) of subsection 95N(1) of the Registration Act.
Miss Eidson said she was heavily pregnant at the time she received the objection decision in late September 2019 and was admitted to hospital on [that specified day in] September 2019 for a code 1 emergency C-section delivery of her child on [a day in] October 2019.
Whilst the Tribunal appreciates the seriousness of the medical condition in which Miss Eidson found herself at the time she received notice of the Agency’s objection decision of 5 September 2019, which would have prevented her from lodging her application to the Tribunal for review of that decision within the statutory 28-day period from the date of receipt of the decision, her medical condition at that time does not excuse her delay of approximately 15 months in applying for AAT first review of the Agency’s objection decision of 5 September 2019.
The Tribunal therefore finds that Miss Eidson has failed to establish that special circumstances prevented her from applying for AAT first review of the Agency’s objection decision of 5 September 2019 within the 28-day period, and accordingly, the date ofeffect for the Tribunal’s decision for Miss Eidson will be 8 March 2021, the date of her application for AAT first review of the Agency’s objection decision of 5 September 2019.

DECISION

[2021] AATA 2427

14 June 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction