Fulberg and Romagna (Child support)

[2025] ARTA 1104

Fulberg and Romagna (Child support) [2025] ARTA 1104 (15 April 2025)

Applicant:Mr Fulberg

Respondent:  Child Support Registrar

Other Party:  Mr Romagna

Tribunal Number:   2024/BC028681

Tribunal:General Member P Jensen

Place:Brisbane

Date of Decision:  15 April 2025

Decision:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentages of care – change to the pattern of care – new rate of child support payable – decision under review affirmed

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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

1. Mr Fulberg and Mr Romagna are the parents of [a number of] children. Services Australia – Child Support (“Child Support”) recorded Mr Fulberg as providing 14% care and Mr Romagna as providing 86% care for the children from 25 June 2022.

2. On 8 January 2024, Mr Romagna informed Child Support of a change in care. On 18 March 2024, Child Support concluded that a change in care occurred on 5 November 2023, at which point Mr Fulberg started providing 13% care and Mr Romagna started providing 87% care. Child Support decided to record Mr Fulberg as providing 13% care with effect from 5 November 2023 and Mr Romagna as providing 87% care with effect from 8 January 2024. The Child Support (Assessment) Act 1989 contains special provisions concerning the date of effect if changes in care are not reported promptly.

3. On 7 August 2024, Mr Fulberg formally objected to the original care decision. An objections officer made two decisions:

• The objections officer decided to set aside the original care decision and not record a change in care from 5 November 2023.

• The objections officer decided to not make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”).

1. The objections officer’s first decision was the decision that Mr Romagna was seeking. However, the objections officer’s second decision resulted in the first decision only having effect from when Mr Fulberg objected, which the objections officer concluded was 7 August 2024.

2. Mr Fulberg promptly applied to the Tribunal for review of the objections officer’s second decision. Neither parent applied to the Tribunal for review of the objections officer’s care decision. I heard the matter on 5 March 2025. Mr Fulberg gave sworn evidence via MS Teams. Mr Romagna elected to not participate in the hearing.

3. Section 87AA relevantly provides that, generally, if a person objects to a care decision more than 28 days after they were notified of the decision and an objections officer changes the decision, the change has effect from when the person objected. Subsection 87AA(2) allows the 28-day period to be extended if “there are special circumstances that prevented the person from lodging the objection” within the 28-day period.

4. According to Child Support’s records, it sent a letter dated 18 March 2024 to Mr Fulberg electronically. The letter was a notification of the care decision. Child Support also sent assessment notices which showed the new rate of child support payable due to the change in care. At the hearing, Mr Fulberg said he did not receive the letter. (I did not ask him about the assessment notices.) He said Child Support did not have his correct email address, but he later added that he did not receive Child Support correspondence via his email address; he received it via an app. In the absence of any further evidence on the issue, it would be presumed that Mr Fulberg had received the electronic communication on the day on which it was sent: section 161 of the Evidence Act 1995.

5. Mr Fulberg phoned Child Support on 28 March 2024. It made a brief file note of the conversation. After the hearing it provided an audio file of the conversation. At the start of the conversation, Mr Fulberg said: “I went on the app today, there’s been a new assessment”. That evidence supports the view that Mr Fulberg was notified of the care decision on 18 March 2024, even if he did not read the correspondence until 28 March 2024. To object within the 28-day period, Mr Fulberg needed to object by 25 April 2024.

6. According to Child Support’s file notes, Mr Fulberg’s only relevant contact during the 28‑day period was on 28 March 2024. A question arises whether Mr Fulberg objected during his conversation with Child Support on that day. The Child Support employee explained that the care decision caused the change in his rate of child support payable. Mr Fulberg explained some of the circumstances surrounding his provision of care. He effectively submitted that it was unfair to vary his rate of child support payable by such a large amount when the care decision turned on only a couple of nights of care per year. However, he did not say that the decision was wrong or that he wanted it reviewed. Unfortunately the Child Support employee did not remind him of his right to object to the care decision. I say “remind” because the letter dated 18 March 2024 informed him of that right. He may not have read that letter, or that portion of the letter, but that omission does not constitute special circumstances for the purposes of section 87AA. At the hearing, Mr Fulberg explained that he did not lodge an objection until 7 August 2024 because that was when he learned of his right to object. His ignorance of the law does not constitute special circumstances for the purposes of section 87AA. There were not special circumstances preventing him from objecting within the 28-day period. The objections officer made the correct decision.

DECISION

The decision under review is affirmed.