Fraser and Shackleton (Child support)

[2017] AATA 2901

Fraser and Shackleton (Child support) [2017] AATA 2901 (22 November 2017)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/SC012305

APPLICANT:  Mrs Fraser

OTHER PARTIES:  Child Support Registrar

Mr Shackleton

TRIBUNAL:Member F Staden

DECISION DATE:  22 November 2017

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support – Care percentage – Date of effect of objection decision – Whether special circumstances prevented lodgement of the objection within time – Refusal to make a determination under subsection 87AA(2) – 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 DECISION

BACKGROUND

1. Mrs Fraser and Mr Shackleton are the separated parents of [Child 1], born 1999. This review is about the date of effect of Mrs Fraser’s successful care percentage objection.

2. On 10 April 2017, Mrs Fraser informed the Department of Human Services – Child Support (the Department) that she had had 100% of [Child 1]’s care since 19 January 2017. On 24 April 2017, Mr Shackleton disputed that Mrs Fraser was now [Child 1]’s sole carer. He stated that he had provided five nights of care for [Child 1] in the previous month but could not provide further details. On 27 April 2017, Mr Shackleton stated that he had had an average of five nights of care a month for [Child 1] from 19 January 2017.

3. On 3 May 2017, Mrs Fraser emailed the Department, stating in relation to her claimed care change from 19 January 2017, “Since the follow up phone call from my case manager and the threats from Mr Shackleton in regards to him stop paying for his phone and car etc, I will leave the care arrangements as it is for now. If I do change anything later I do have the proof.” Following receipt of her email, the Department telephoned Mrs Fraser and she confirmed that she was no longer claiming 100% care of [Child 1] from 19 January 2017.

4. On 3 May 2017, the Department decided to reject Mrs Fraser’s request for a change of care percentage from 19 January 2017. Notice of this decision was sent to Mrs Fraser electronically as she had opted to receive child support correspondence online.

5. On 7 June 2017, Mrs Fraser informed the Department that [Child 1] had been 100% in her care from 19 January 2017. This was treated as an objection to the decision of 3 May 3017. As the objection was lodged more than 28 days after the decision, Mrs Fraser was asked to apply for a special circumstances extension.

6. Mrs Fraser provided a letter in support of her objection on 13 June 2017 and two diary extracts on 20 June 2016. On 20 June 2016 she also applied for a special circumstances extension.

7. The child support assessment for [Child 1] ended on 2 July 2017.

8. On 28 July 2017, Mr Shackleton told the Department that he would agree that he had had no overnight care of [Child 1] from 19 January 2017.

9. On 28 July 2017, an objections officer allowed Mrs Fraser’s objection. The officer decided to set aside the 3 May 2017 decision and find that Mrs Fraser’s care percentage for [Child 1] was 100% from 19 January 2017 and that of Mr Shackleton was 0%. The officer stated that the date of effect of this decision was 7 June 2017 as Mrs Fraser’s application for a special circumstances extension was refused.

10. On 10 August 2017, Mrs Fraser applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s 28 July 2017 decision about the date of effect of the changed care percentages.

11. A hearing was conducted on 22 November 2017. Mrs Fraser and Mr Shackleton gave sworn evidence by telephone. The tribunal had before it documents provided by the Department (125 pages), a copy of which was sent to Mrs Fraser and Mr Shackleton before the hearing.

12. Relevant aspects of the evidence before the tribunal are referred to in the consideration below.

ISSUES

1. The statutory provisions most relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. The key issue in this case is whether there were special circumstances which prevented Mrs Fraser from lodging her objection to the 3 May 2017 care percentage decision within 28 days of being informed of that decision.

CONSIDERATION

1. Section 81 of the Registration and 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.

2. However, under subsection 87AA(1) of the Registration and Collection Act, if an objection is lodged more than 28 days after notification of a care percentage decision, any changed decision as a result of that objection only has effect from the date the objection was lodged. The one exception to this, under subsection 87AA(2) of the Registration and Collection Act, is that the time in which to lodge an objection can be extended if the Registrar, here the tribunal, is satisfied that there were special circumstances which prevented the objection being lodged in a timely manner.

3. The Child Support Guide at 4.1.8 Care percentage decisions gives some guidance as to what constitutes 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.

4. Here Mrs Fraser lodged an objection to the 3 May 2017 care percentage decision on 7 June 2016, more than 28 days after notification of that decision.

5. The tribunal noted the following evidence in relation to the 35-day period from 3 May 2017 to 7 June 2016:

   ·     Mrs Fraser said she was not aware that she had taken more than 28 days to lodge an objection. She had a lot of things on her mind

   ·     Mrs Fraser explained that in addition to his assessed child support liability, Mr Shackleton paid for [Child 1]’s mobile phone and various car-related expenses. The mobile phone payments were a long-standing arrangement. The car payments, for example, registration, were intended to balance out the $6,000 Mrs Fraser and her father had spent buying a car for [Child 1].

   Mrs Fraser said that Mr Shackleton told her he would cease making any additional payments if his child support liability increased on the basis of her having 100% care. Mrs Fraser said she thought this was a threat and felt that she forced to lie to the Department in order for the additional payments to continue. This was why she told the Department she did not have 100% care of [Child 1] on 3 May 2017. However, after trying to sort things out without success, she decided to tell the Department the truth on 7 June 2017.

   Mr Shackleton said that from 19 January 2017 he was trying to have some care of his son but he eventually accepted that this was not going to happen. He did not see himself as having threatened Mrs Fraser about not making the additional payments. He said that he was concerned that he would not be able to afford to make those payments if his child support liability increased as a result of a care percentage change.

   ·     Mrs Fraser said that [Child 1] was in poor mental health during this period. His self-esteem was low, he talked about wanting to harm himself and he didn’t want to do anything. Mr Shackleton did not dispute this. Mrs Fraser had to deal with the school when [Child 1] dropped out. Both Mrs Fraser and Mr Shackleton agreed that [Child 1] was spending a lot of time with his friends during this time.

   ·     In April 2017, Mrs Fraser began a job for which she required training. It was a demanding transition from not working to working full-time.

   ·     Mrs Fraser said that during the period in question she was still recovering from the impact of the 2016 breakdown of her marriage to the father of her younger child and becoming a single parent.

6. The tribunal found Mrs Fraser and Mr Shackleton to be credible witnesses, albeit with very different understandings of their dealings in the period from 3 May 2017 to 7 June 2017.

7. The tribunal put it to Mrs Fraser that the main reason for her delay in lodging an objection was that she was preoccupied by her negotiations with Mr Shackleton about whether he would continue to make payments related to [Child 1]’s mobile phone and car in addition to his child support liability. She said that that was a fair assessment. On balance, the tribunal was not persuaded that this was sufficient to constitute a special circumstance which prevented her from lodging an objection to the 3 May 2017 care percentage decision within 28 days of being informed of that decision.

DECISION

The decision under review is affirmed.