Erickson and Erickson (Child support)

Erickson and Erickson (Child support) [2019] AATA 5503 (11 October 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/BC017618
APPLICANT:  Mr Erickson
OTHER PARTIES:  Mrs Erickson
Child Support Registrar

TRIBUNAL:Member P Jensen
DATE OF DECISION: 11 October 2019
DECISION:

Related matter: On 17 May 2019 an objections officer decided to not record a change in Mr Erickson’ and Mrs Erickson’ care of [Child 1] and [Child 2] with effect from 4 October 2017. On 11 October 2019 the Tribunal decided to set aside that care decision and, in substitution, record Mr Erickson as providing 25% care and Mrs Erickson as providing 75% care to [Child 1] and [Child 2] with effect from 4 October 2017. Separate reasons have been issued to Mr Erickson and the Child Support Registrar for that care decision. Mrs Erickson was not a party to those proceedings.

Decision: On 17 May 2019 an objections officer decided to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, and the objections officer’s care decision therefore took effect from 15 February 2019. The Tribunal affirms the objections officer’s decision to make that determination. It follows that the Tribunal’s substituted care decision has effect from 15 February 2019.

CATCHWORDS

CHILD SUPPORT – date of effect of objection decision – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – decision under review affirmed

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 DECISIONS

Mr Erickson and Mrs Erickson 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”) on 6 June 2016. Mr Erickson was recorded as providing 25% care to the children. Mrs Erickson has always been recorded as providing the balance of care and, for convenience, I will predominantly refer to Mr Erickson’ care.
On 5 October 2017 the CSA concluded that Mr Erickson started providing 0% care to the children from 20 August 2017, but because neither the CSA nor Centrelink, which I will refer to collectively as the Department of Human Services, was notified of the change in care within 28 days of its occurrence, the change in care was recorded with effect from the date of notification, which was 4 October 2017.
Mr Erickson objected to that decision. On 17 May 2019 an objections officer allowed Mr Erickson’ objection. It is the CSA’s current position that the objections officer made the following two decisions. First, the objections officer concluded that a change in care did not occur on 20 August 2017. Second, the objections officer concluded that special circumstances had not prevented Mr Erickson from objecting to the original care decision within 28 days of being notified of that decision, and so the substituted care decision to not record a change in care took effect from the date on which Mr Erickson objected, which the objections officer concluded was 15 February 2019. The second decision was, more technically, a decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988.
The combined effect of those two decisions was that the objections officer’s care decision had no practical effect for child support purposes. (The objections officer’s formal decision and the reasons for that decision do not clearly identify such a decision being made for those reasons, but it is not necessary to address that issue further.)
Mr Erickson promptly applied to the Tribunal for further review of the care decision. Ms Erickson was not automatically a party to the application for review of the care decision. She was invited to apply to be made a party, but she did not make that application. I heard the matter on 23 August 2019 and 11 October 2019. On 11 October 2019, I decided to set aside the objections officer’s care decision and, in substitution, record Mr Erickson as providing 25% care and Mrs Erickson as providing 75% care with effect from 4 October 2017. Mr Erickson and the Child Support Registrar have been provided with written reasons for that decision.
Mr Erickson also effectively applied to the Tribunal for review of the objections officer’s decision to not make a subsection 87AA(2) determination. The objections officer incorrectly concluded that the original care decision was made on 23 October 2018, and Mr Erickson was notified of the decision via a letter and assessment notices dated 23 October 2018, and Mr Erickson did not object until 15 February 2019. The CSA now concedes that no decision was made on 23 October 2018. It appears that general correspondence was sent to Mr Erickson on 23 October 2018 which was intended to provide him with a history of his child support case. During the hearing, Mr Erickson said he did not receive a copy of that correspondence at that time.
The relevant correspondence in the current proceedings is the letter and accompanying assessment notices dated 28 November 2017. The letter relevantly informed Mr Erickson that he was recorded as providing 0% care from 4 October 2017. The accompanying assessment notices showed that his rates of child support payable from 4 October 2017 were based on him providing 0% care. During the hearing I referred Mr Erickson to that letter and he acknowledged receiving that letter. He said he contacted the CSA and queried the letter, but he could not recall when he made that contact. He said he did not keep any notes of the contact. According to the CSA’s records, Mr Erickson did not query the decision to record him as providing 0% care until 15 February 2019. On balance, I consider the CSA’s records to be the more reliable evidence on point. I find that Mr Erickson objected to the original care decision on 15 February 2019.
Section 87AA of the Child Support (Registration and Collection) Act 1988 provides, generally, that if a person is notified of a care decision, and they object more than 28 days after being notified of the decision, and the objections officer changes the decision, then the change takes effect from the date on which the person objected. Under that general rule, the substituted decision to record Mr Erickson as providing 25% care would take effect from 15 February 2019. An exception arises if “there are special circumstances that prevented the person from lodging the objection within” 28 days of being notified of the care decision: subsection 87AA(2). There is no evidence to suggest that there were special circumstances that prevented Mr Erickson from contacting the CSA within 28 days of the receiving the letter dated 28 November 2017 and objecting to the decision to record him as providing 0% care. For those reasons, the objections officer’s decision to not make a determination pursuant to subsection 87AA(2), and to give effect to the change to the original care decision from 15 February 2019, was correct.
In summary, the objections officer made two decisions. The objections officer’s first decision was a decision to allow Mr Erickson’ objection to the original care decision to record him as providing 0% care with effect from 4 October 2017, and to not record a change in care. I have set aside the objections officer’s first decision and substituted a decision to record Mr Erickson as providing 25% care with effect from 4 October 2017.
The objections officer’s second decision was, in effect, a conclusion that special circumstances had not prevented Mr Erickson from objecting to the original care decision within 28 days of being notified of that decision, and so the objections officer’s first decision took effect from that date on which Mr Erickson lodged his objection, which was 15 February 2019. That decision will be affirmed. It follows that the Tribunal’s substituted care decision will also take effect from 15 February 2019.
Mr Erickson has been recorded as providing 25% care with effect from 9 November 2017 pursuant to a separate care decision, and for that reason, the objections officer’s decisions had, and this Tribunal’s decisions will have, no practical effect for child support purposes.
This matter has had a protracted and complicated history. The hearing papers originally provided by the CSA did not clearly identify the decisions under review. It was not until after I had heard from Mr Erickson during the second day of hearing that it became clear that Mr Erickson had also effectively applied for review of the objections officer’s decision to not make a subsection 87AA(2) determination. Mrs Erickson was automatically a party to that application for review, but she was not a party to the application for review of the care decision. Ordinarily, Mrs Erickson would have been provided with an opportunity to give evidence in respect of the review of the decision to not make a subsection 87AA(2) determination. That would have required listing the matter for a third day of hearing. Given that Mr Erickson had failed to establish that special circumstances had prevented him from objecting to the original care decision within 28 days of being notified of that decision, I did not consider it necessary to hear from Mrs Erickson before making my decision. At a practical level, the Tribunal’s two decisions have not changed the rates of child support that were payable between the parents, and they do not have the potential to change the rates of family tax benefit, if any, that were payable to the parents.

DECISIONS

[2019] AATA 5503

11 October 2019

Key Legal Topics

Areas of Law

Family Law