Forrester and Forrester (Child support)

[2020] AATA 271

Forrester and Forrester (Child support) [2020] AATA 271 (7 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017425 and 2019/SC017514

APPLICANT:  Mr Forrester

OTHER PARTIES:  Child Support Registrar

Ms Forrester

TRIBUNAL:Member C Breheny

DECISION DATE:  07 January 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of the likely pattern of care from the start of the administrative assessment – decision under affirmed – date of effect - whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – decision 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 DECISION

BACKGROUND

1. Ms Forrester and Mr Forrester are the separated parents of [Child 1] and [Child 2]. On 9 May 2017 Ms Forrester applied to the Department of Human Services – Child Support (the Department) for a child support assessment. She stated that Mr Forrester had had 130 nights (35%) care of the children since 3 March 2017. Her application was granted on 21 June 2017 and Mr Forrester was assessed as liable to pay child support to Ms Forrester on the basis that Ms Forrester had 65% and Mr Forrester had 35% care of the children.

2. On 13 June 2019 Mr Forrester contacted the Department in relation to the care for his son [Child 1]. He noted that he has had five nights per fortnight and half of the school holidays (38%) care of the children since the start of the case. On the same day Mr Forrester lodged an objection to the decision made on 21 June 2017, that he had 35% and Ms Forrester had 65% care of [Child 2] and [Child 1].

3. On 14 August 2019 an objections officer of the Department decided to allow the objection. The objections officer decided that Mr Forrester had 38% care and Ms Forrester had 62% care of the children since 3 March 2017.

4. The objections officer however did not find that special circumstances existed in this case that prevented Mr Forrester from lodging an objection earlier (within the 28-day time frame provided for by the legislation). Thus the new care percentages (as found by the objections officer) could only apply to the assessment from 13 June 2019, the date Mr Forrester lodged his objection.

5. On 17 September 2019 and 27 September 2019 Mr Forrester applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 7 January 2020. Mr Forrester and Ms Forrester attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the statement and documents provided by the Department pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975, received on 18 November 2019 and 20 December 2019 respectively (documents numbered 1–298). Ms Forrester also provided additional evidence, marked B1-B12.

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Collection Act).

2. In this case both parties agreed that Mr Forrester had five nights per fortnight care of [Child 1] and [Child 2] during school terms, plus care for half of the school holidays. This amounts to 142 nights[1] or 38% care per year. Both Mr Forrester and Ms Forrester agreed that this arrangement had been in place since March 2017 and was formalised in a Court Order of 10 April 2018 (folio 130).

   [1] 20 fortnights (school terms) x 5 nights care = 100 nights, plus 12 weeks school holidays/2 = 6 weeks x 7 nights  = 42 nights

3. Ms Forrester confirmed that she stated in her application for a child support assessment that Mr Forrester had five nights per fortnight care (130 nights per year), which amounts to 35% (folio 29). Ms Forrester said that there was no dispute that she and Mr Forrester shared the care of the children and it did not occur to her that “school holiday care” would make a difference to the overall care percentage.

4. Mr Forrester confirmed that he did not question the care percentage decision made on 21 June 2017 until his discussion with a departmental employee on 13 June 2019. He then lodged his objection to the earlier decision.

5. Section 81 of the Collection Act provides that objections to decisions made by the Registrar must be lodged within 28 days after notice of the decision has been served. This section does not apply to care decisions to which objections may be lodged at any time. However section 87AA of the Collection Act provides for a time limit on the date of effect where an objection to a care decision has been allowed and the person lodged the objection outside the 28-day time frame.

6. It states if, on objection, a care decision is changed, the effect of the changed decision will only apply from the date the objection was lodged (if outside the 28-day time frame). Paragraph 87AA(2)(b), however, provides, in essence, that a longer than 28-day time frame to lodge an objection may apply if the Registrar (or the Tribunal standing in place of the Registrar) is satisfied that “special circumstances” apply in the case.

7. As noted, in this case there is no dispute that Mr Forrester had 38% and Ms Forrester 62% care of the children from March 2017. As a result of the parties’ agreement, the objections officer changed the original decision made on 21 June 2017 to reflect these care percentages.

8. As stated above, pursuant to subsection 87AA(1) of the Collection Act, any decision made on objection takes effect from the date the objection is lodged (in this case from 13 June 2019) unless “special circumstances” apply.

9. The term “special circumstances” is not defined in the Act. The Department’s online Child Support Guide (the Guide) provides guidance on this point and indicates that the person must explain why there was a delay in lodging the objection and show that the circumstances were “sufficiently special” for the person to receive the benefit of an extension of time in which to lodge the objection. The Guide at chapter 4.1.8 states:

   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.

   …

10. Departmental records indicate that a notice was sent to Mr Forrester dated 21 June 2017 (folio 39) advising him that Ms Forrester’s application for a child support assessment had been accepted and that he was required to pay child support on the basis that he had 35% care of the children.

11. Mr Forrester agreed that he received this and other notices advising him of his child support liability. He read all of the notices, but never thought to question the care percentages or calculate the number of care nights. He knew that he and Ms Forrester had an agreement regarding the care of the children and assumed that the information provided to the Department was correct. He had no reason to query the assessment.

12. Mr Forrester stated that in mid-2019 the eldest child, [Child 1], decided to live with him for a while and this is when he contacted the Department to advise of a care change (folio 73). It was during these discussions that he discovered that the care percentages used to calculate his child support liability were incorrect and he thus lodged his objection.

13. I have carefully considered the evidence before me, but I am not persuaded that special circumstances exist in this case that prevented Mr Forrester from lodging his objection to the decision made on 21 June 2017 within the required time frame. Mr Forrester was aware of the care percentages used in the assessment but saw no reason to follow up on these until 13 June 2019.

14. I therefore find that Ms Forrester had 62% care and Mr Forrester 38% care of the children from 3 March 2017, with a date of effect of 13 June 2019. This is the same conclusion as reached by the objections officer and I will therefore affirm the decision.

DECISION

The decision under review is affirmed.