Hough and Greathouse (Child support)

[2023] AATA 3390

Hough and Greathouse (Child support) [2023] AATA 3390 (6 September 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC025905

APPLICANT:  Mr Hough

OTHER PARTIES:  Child Support Registrar

Ms Greathouse

TRIBUNAL:Member M Martellotta

DECISION DATE:  6 September 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – date of effect provisions – 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 omitted 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. The applicant and second party are the parents of two children for whom a child support assessment is registered.

2. Services Australia (Child Support) had recorded care percentages from 16 May 2022 of shared care (50/50) to both parties. On 11 July 2022 a change in care notification was made by the second party – namely, that her care increased to 100% from 7 July 2022.

3. On 25 August 2022 Child Support made an original decision that from 7 July 2022 the applicant had 0% care and the second party had 100% care.

4. On 4 January 2023 the applicant lodged an objection to that decision, advising that he still had overnight care of the children.

5. On 8 March 2023 Child Support made a decision in relation to the applicant’s objection. That decision was that from 7 July 2022 the applicant had 14% care and the second party had 86% care.

6. The effect of the objection decision was to apply to the assessment from 4 January 2023 as this was the date the applicant objected. This is because Child Support was not satisfied that special circumstances prevented the applicant from making his objection within the 28-day period specified in legislation.

7. This is the issue that the applicant has asked the tribunal to review. He lodged his application for review on 3 April 2023.

8. At hearing both parties stated that they agreed Mr Hough had care as determined by the objections officer. The only issue in contention was the date of effect.

9. The tribunal held a hearing on 6 September 2023. Both parties provided evidence on affirmation. Child Support provided a file of documents relevant to their decision.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 (the RC Act).

2. Child support legislation is interpreted by Child Support with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but provided the policy is consistent with the legislation, will have regard to it.[1]

   [1] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

3. As noted, the issue under review is whether a determination should be made under subsection 87AA(2) of the RC Act. That is, what is the date of effect of the care change decision?

CONSIDERATION OF LEGISLATION AND EVIDENCE

Issue one – should a determination be made under subsection 87AA(2)?

1. Child Support declined to make a determination under subsection 87AA(2) of the RC Act.

2. The decision to not make a determination under subsection 87AA(2) of the RC Act is reviewable by the tribunal. Section 87AA of the RC Act provides that if a person objects to a care percentage decision more than 28 days after the person was served with a notice of the decision, the decision has effect from the date the person lodged the objection.

3. Subsection 87AA(2) provides an exception to that general rule – if the objections officer is satisfied that there are special circumstances that prevented (emphasis added) the person from lodging the objection within 28 days, then they may determine that the section applies as if they had objected within time.

4. The legislation does not define special circumstances, but the Family Court in Gyselman and Gyselman (1992) FLC 92-279 held: ‘as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary’. The Guide[2] at 4.1.8 notes that:

   The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe…some examples…may include:

   ·the parent was seriously ill or had an accident…

   ·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.

   [2] The Guide is a policy document used by Child Support. A decision maker is not bound by such policies but can be guided by the policies articulated in the Guide unless a cogent reason exists to do otherwise (such as if the policy produces an unjust result in a particular case): Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

5. The applicant provided the following evidence:

   a)   He was not engaged with the process at the time the change in care decision was made.

   b)   He was spending time at his girlfriend’s place and not reviewing mail that was being sent to his residential address.

   c)   He knows that he should have been more engaged, but it was only when he found out that he had a debt that he decided to lodge an objection.

   d)   The outcome is not fair because he did have care.

6. The second party told the tribunal that the reasons provided by the applicant were not such that a determination under subsection 87AA(2) should apply.

7. The Child Support files show that a notice of the care decision dated 25 August 2022 was sent to Mr Hough. On 8 November 2022 Mr Hough contacted Child Support to inquire about a debt. He was invited to lodge an objection to the care decision but he declined because ‘he did not have time now’.[3] On 4 January 2023 lodged his objection.

   [3] Page 59.

8. Authorities confirm the prima facie rule that proceedings outside of legislated prescribed periods will not be entertained unless it is proper to do so. Parliament has prescribed timeframes in child support legislation for lodging objections to decisions made by Child Support.

9. The tribunal finds that the applicant:

   a)   Received a notice of decision dated 25 August 2022.

   b)   By his own admission did not engage with correspondence received from Child Support.

   c)   He made his objection on 4 January 2023.

10. In the tribunal’s view there were no special circumstances which prevented the second party from lodging his application within the mandated 28 days and as such the date of effect of the allowed care percentage decision is the date the objection was made. The tribunal declines to make a determination under subsection 87AA(2) of the RC Act.

DECISION

The decision under review is affirmed.