Kittrell and Swire (Child support)

[2020] AATA 1031

Kittrell and Swire (Child support) [2020] AATA 1031 (26 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC017900

APPLICANT:  Mr Kittrell

OTHER PARTIES:  Child Support Registrar

Ms Swire

TRIBUNAL:Member S Brakespeare

DECISION DATE:  26 February 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the date of effect of the objection decision, to reflect that Ms Swire has 100% care of [Child 1] and Mr Kittrell has 0% care of [Child 1], is 12 July 2019.

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 set aside and substituted

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. On 29 March 2019 an officer of the Child Support Agency revoked existing percentage of care determinations in respect of [Child 1] and made new percentage of care determinations reflecting that Mr Kittrell had 14% care and Ms Swire had 86% care with effect from 28 March 2019 (the care decision).

2. Ms Swire lodged an objection to the care decision with the Child Support Agency on 12 July 2019. The objection was lodged more than 28 days after Ms Swire was given notice of the decision. An objections officer allowed the objection and made the following decisions:

   ·Ms Swire has 100% care of [Child 1] and Mr Kittrell has 0% care of [Child 1];

   ·The date of effect of the objection decision is 28 March 2019 accordance with subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the R&C Act).

3. Mr Kittrell lodged an application for review of the date of effect decision. (Decisions made under section 87AA of the R&C Act have their own specific provisions relating to review by the tribunal.) Mr Kittrell confirmed for the tribunal that he was not contesting the care decision; his review was specifically to do with the date of effect decision.

4. A hearing was held on 26 February 2020. Mr Kittrell and Ms Swire both gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with a bundle of papers relevant to the review (180 pages). Ms Swire provided additional papers to the tribunal (folios B1 to B6) and a copy was provided to Mr Kittrell prior to the hearing.

5. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

1. The statutory provisions relevant to this review are the Child Support (Assessment) Act 1989 (the Act) and the R&C Act.

2. The issue which arises in this case is the date of effect of the care percentage decision made on objection.

CONSIDERATION

1. Section 87AA of the R&C Act restricts the date of effect of a care percentage decision made on review, to the date the objection was lodged, if that objection was lodged more than 28 days after the person was notified of the original decision.

2. Subsection 87AA(2) of the R&C Act provides that if there are special circumstances that prevented the person from lodging the objection within the 28-day period, then that period may be extended.

3. Extending the period for lodging the objection has the effect of backdating the date of effect of the review decision.

4. Mr Kittrell said that it was his view that Ms Swire was not prevented by special circumstances from lodging the objection in time, and therefore he should not be required to pay arrears.

5. Ms Swire told the tribunal that prior to the change of care notification, she had suffered a [medical condition] and [Child 1] had gone into Mr Kittrell’s care whilst she was being treated. When [Child 1] returned to her care, she had hoped that Mr Kittrell would still have some care, which is why she advised the Child Support Agency in March that he would have 14% care.

6. She did not advise the Child Support Agency that the care arrangement was not occurring as intended until 2 July 2019 because she thought she would give it three months to see if it would work. When she advised of the current care arrangement in July, she was not seeking back-payment; however, an officer of the Child Support Agency advised her to put in an objection.

7. Whilst the tribunal accepts Ms Swire’s explanation as to why she delayed lodging an objection to the decision of 29 March 2019, the tribunal does not find that there are special circumstances which prevented her from lodging the objection within 28 days of being notified of the decision.

8. The tribunal therefore finds that the date of effect of the objection decision is the date the objection was lodged, being 12 July 2019.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the date of effect of the objection decision, to reflect that Ms Swire has 100% care of [Child 1] and Mr Kittrell has 0% care of [Child 1], is 12 July 2019.