Georgeson and Rackham (Child support)

[2019] AATA 691

Georgeson and Rackham (Child support) [2019] AATA 691 (31 January 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/HC015145

APPLICANT:  Ms Georgeson

OTHER PARTIES:  Child Support Registrar

Mr Rackham

TRIBUNAL:Member F Hewson

DECISION DATE:  31 January 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – date of effect of objection decision – whether there were special circumstances that prevented the objection being lodged in time - special circumstances do not 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 DECISION

BACKGROUND

1. Ms Georgeson and Mr Rackham are the parents of children, including [Child 1], in respect of whom there is a child support assessment. This application for review is about the date of effect of a decision to change the percentages of care for [Child 1] in the child support assessment.

2. On 3 April 2018 the Department of Human Services – Child Support (the Department) made a decision to refuse to change the percentages of care following notification by Ms Georgeson on 13 December 2017 that the care of [Child 1] had changed from 20 August 2017. The parties were notified of the decision by letter dated 3 April 2018, which included information about asking for a review of the decision.

3. On 31 May 2018 Ms Georgeson lodged an objection to the decision of 3 April 2018. It was considered by an objections officer on 31 August 2018. The objections officer decided to change the percentages of care to reflect that Ms Georgeson had a percentage of care of [Child 1] of 87% from 20 August 2018 and Mr Rackham had a percentage of care of 13%. The objections officer decided, however, that the date of effect of the decision was 31 May 2018.

4. On 2 October 2018 Ms Georgeson lodged an application for review of the objection officer’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was heard on 31 January 2019. Ms Georgeson spoke to the tribunal by conference telephone. Mr Rackham also spoke to the tribunal by conference telephone. The Child Support Registrar did not participate in the hearing. As well as the evidence of the parties at the hearing, the tribunal also had regard to the documents provided by the Department, a copy of which was sent to the parties.

ISSUES

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

2. The issues which arise in this case are:

   ·       Whether Ms Georgeson lodged an objection within 28 days of receiving notice of the care decision made on 3 April 2018; and

   ·       If not, whether there are special circumstances which prevented her from doing so.

CONSIDERATION

1. Ms Georgeson is seeking review in respect of an objection decision which had two components: a decision to assess care percentages for [Child 1] of 87% to her and 13% to Mr Rackham; and a decision that these care percentages should have effect in the child support assessment from 31 May 2018. It is only the date of effect decision that Ms Georgeson has asked the tribunal to consider.

2. An objection to a care percentage decision does not have to be lodged within the usual 28 days that apply to other child support decisions. However, if it is lodged outside the 28 days and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the Act).

3. The Registrar may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) that subsection 87AA(1) applies as if the reference to 28 days (90 days for residents of an overseas jurisdiction) were a reference to such longer period as the Registrar determines to be appropriate.

4. At the hearing Ms Georgeson said she did not understand how the date of effect of the objection officer’s decision had been determined. That [Child 1] had returned to her care in August 2017 had been acknowledged, yet the decision was not given effect until 31 May 2018. In relation to the notice of the decision, dated 3 April 2018, Ms Georgeson said she did not think she had access to it at the time. She said she had some difficulty with her MyGov account. She conceded she may have overlooked it. Whatever occurred, she was not aware of the decision until the end of May 2018 when she contacted the Department about another matter. Having become aware of the decision she lodged the objection. 

5. The documents provided by the Department include a copy of the letter dated 3 April 2018 as well as records of contacts with the Department before and after that date.  The documents show that Ms Georgeson’s first contact with the Department following 3 April 2018 was on 31 May 2018, when she lodged her objection to the care decision.

6. The tribunal considered the available evidence. It found that Ms Georgeson lodged her objection to the decision of 3 April 2018 on 31 May 2018, which is more than 28 days after she was given notice of the decision. It follows, therefore, that unless there are special circumstances which prevented her from lodging the objection, the date of effect of the decision is 31 May 2018.

7. The Act does not define the term 'special circumstances'.  Chapter 4.1.8 of the Child Support Guide includes the following:

   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.

8. Having regard to the particular circumstances of the case, including the evidence of Ms Georgeson at the hearing, the tribunal concluded that Ms Georgeson’s circumstances are not special circumstances which prevented her lodging the objection to the decision of 3 April 2018 within 28 days. The tribunal decided, therefore, that the date of effect of the care decision is 31 May 2018, in accordance with section 87AA of the Act.

DECISION

The decision under review is affirmed.