Jacoby and Devall (Child support)

[2019] AATA 2190

Jacoby and Devall (Child support) [2019] AATA 2190 (6 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016284

APPLICANT:  Mr Jacoby

OTHER PARTIES:  Child Support Registrar

Ms Devall

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  06 June 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 – 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 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. Mr Jacoby and Ms Devall are the parents of [Child 1] (born [2013]).

1. From 3 September 2013 the child support assessment reflected Mr Jacoby as having 0 per cent care and Ms Devall as having 100 per cent care of [Child 1].

2. On 6 July 2018 Mr Jacoby notified the Department of Human Services, Child Support (the Child Support Agency) there had been a change of care stating that from 25 January 2018 he had 70 per cent care of [Child 1].

3. On 20 September 2018 the Child Support Agency made the decision to record that Mr Jacoby provides 28 per cent care of [Child 1] and Ms Devall provides 72 per cent care from 25 January 2018 but with effect from 6 July 2018 (the original decision).

4. On 29 January 2019 Mr Jacoby objected to this decision and on 4 April 2019 the Child Support Agency allowed the objection and made the decision to reflect that Mr Jacoby provides 86 per cent care and Ms Devall provides 14 per cent care of [Child 1] from 25 January 2018 (the objection decision).

5. As there were no special circumstances that prevented Mr Jacoby from objecting earlier the Child Support Agency applied this decision from 29 January 2019 being the date Mr Jacoby lodged his objection.

6. On 8 April 2019 Mr Jacoby applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 30 May 2019 and Mr Jacoby gave evidence on affirmation by conference telephone.  The Tribunal wrote to Ms Devall inviting her to be added as a party to the application for review, however, she did not respond to the invitation and so did not participate in the hearing.

8. The Tribunal established at hearing that the decision under review related to the date of effect of the objection decision. Determinations made under section 87AA of the Child Support (Registration and Collection) Act 1988 (the Act) are separately reviewable by the Tribunal and Ms Devall is automatically a party to the review.  Given Ms Devall did not indicate any intention to participate in the review the Tribunal did not seek submissions from her following the hearing.  Ms Devall was added as a party to the review in accordance with section 95D of the Act and a copy of the decision sent to her.

9. The Child Support Agency provided the Tribunal and Mr Jacoby with papers relevant to the matter (166 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Act.  The issue which arises in this case is whether or not there were special circumstances that prevented Mr Jacoby from making his objection to the original decision within 28 days of the date the notice of that decision was served upon him.

CONSIDERATION

1. Mr Jacoby told the Tribunal at hearing he was not objecting to the care percentage decision made by the Child Support Agency but rather the date of effect of that decision.

2. Mr Jacoby explained that care of [Child 1] had changed from 25 January 2018 and in the objection decision the Child Support Agency had correctly determined his care to be 86 per cent from that date.  Mr Jacoby said he could not understand why his care was not then applied from 25 January 2018 rather than 29 January 2019.  He said this did not seem fair.

3. Mr Jacoby notified the change of care on 6 July 2018 which is more than 28 days after the change of care day of 25 January 2018. Therefore, under the law, the earliest date from which any new care percentage determinations may be applied in the administrative assessment is 6 July 2018.

4. There is no time limit within which a person must lodge an objection against a care percentage decision.  If, however, the objection is made more than 28 days after the date the notice of the decision is served upon them, and the objection is either allowed in full or in part, the objection decision has effect from the date upon which the objection was lodged pursuant to subsection 87AA(1) of the Act.

5. This is the case unless there are special circumstances that prevented the person from lodging the objection within the prescribed 28 days.  If the Child Support Agency is satisfied there are special circumstances that prevented the person from lodging the objection within 28 days, then a determination can be made under subsection 87AA(2) of the Act that subsection 87AA(1) applies as if the reference to 28 days were a reference to a longer period as determined by the decision maker to be appropriate.

6. The Act does not define the term special circumstances, but the Family Court in Gyselman & Gyselman [1991] FamCA 93 has 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”.

7. Although not bound by the Child Support Guide issued by the Child Support Agency, the Tribunal is able to take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.  Relevantly, the Child Support Guide states at 4.1.8 that:

   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.

1. The Tribunal finds Mr Jacoby was advised about the outcome of the original decision by post in a letter from the Child Support Agency dated 20 September 2018.  Under provisions of the Acts Interpretation Act 1901 and the Evidence Act 1995, he was therefore taken to be served with written notice of this decision by 3 October 2018.  Given Mr Jacoby lodged his objection more than 28 days after he was served with notice, the Tribunal is satisfied it must consider any special circumstances which prevented him from lodging within the prescribed timeframe.

2. Mr Jacoby told the Tribunal he did not object to the original decision sooner because he went to New Zealand to visit his father who was unwell.  He said he left on 19 September 2018 and returned around 3 October 2018.  Mr Jacoby said Ms Devall had told him if he objected she would refuse to give him [Child 1]’s passport.  As a result he could not take [Child 1] with him to New Zealand.

3. Mr Jacoby said he thought it was then too late to object due to the 28 days having passed.  Mr Jacoby did not explain why he subsequently submitted his objection on 29 January 2019.

4. While acknowledging that Mr Jacoby had to travel to New Zealand to see his father who was ill, the Tribunal does not consider this to be a ‘special circumstance’ which prevented him from making his objection within 28 days of the date he received the correspondence from the Child Support Agency.  Mr Jacoby returned from New Zealand around 3 October 2018 and yet did not submit his objection until nearly four months later.

5. The Tribunal, after careful consideration, decides not to exercise the discretion provided for in subsection 87AA(2) of the Act and affirms the decision made by the Child Support Agency.

6. This means the care percentage decision is applied from 29 January 2019 when Mr Jacoby lodged his objection.

DECISION

The decision under review is affirmed.