MacTavish and Weatherwax (Child support)

[2021] AATA 5211

MacTavish and Weatherwax (Child support) [2021] AATA 5211 (21 December 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022562

APPLICANT:  Mr MacTavish

OTHER PARTIES:  Child Support Registrar

Ms Weatherwax

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  21 December 2021

DECISION:

The Tribunal sets aside the decision not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1988 and substitutes a new decision that the date of effect of the objection decision is 5 January 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – date of effect provisions – special circumstances exist – discretion should be exercised – 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 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. This review is about the date of effect of care percentage determinations made for Mr MacTavish and Ms Weatherwax in respect of their children [Child 1] (born December 2016) and [Child 2] (born April 2018).  There has been a child support assessment in place since 24 April 2019.

2. From 1 March 2019 the child support assessment reflected Mr MacTavish as having 100 per cent care and Ms Weatherwax as having 0 per cent care of [Child 1] and from 24 February 2019 the child support assessment reflected Mr MacTavish as having 100 per cent care and Ms Weatherwax as having 0 per cent care of [Child 2].

3. On 20 January 2021 the Child Support Agency implemented care details received from Centrelink and made the decision to reflect that Mr MacTavish provides 58 per cent care of [Child 1] and [Child 2] and Ms Weatherwax provides 42 per cent care from 5 January 2021 (the original decision).

4. On 26 August 2021 Mr MacTavish objected to this decision and on 12 October 2021 the Child Support Agency allowed the objection and made the decision to reflect that Mr MacTavish provides 72 per cent care and Ms Weatherwax provides 28 per cent care of [Child 1] and [Child 1] from 5 January 2021. Although special circumstances were found to exist the Child Support Agency refused to exercise the discretion available under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Act) to extend the period in which to lodge the objection.  As a consequence the objection decision was applied to the assessment from 26 August 2021, being the date Mr MacTavish submitted his objection, rather than the date that care changed (the objection decision).

5. On 20 October 2021 Mr MacTavish applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the date of effect of the objection decision.

6. The Tribunal conducted a hearing into the application on 21 December 2021.  Mr MacTavish and Ms Weatherwax gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (162 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Act.

2. The issue which arises in this case is whether or not there were special circumstances that prevented Mr MacTavish 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 MacTavish told the Tribunal that the notice of the original decision from the Child Support Agency dated 20 January 2021 was sent to an old address and he did not get a copy of the letter.  Mr MacTavish said at that point in time he was receiving his correspondence from the Child Support Agency by post.

2. Mr MacTavish explained that during a conversation with an officer from Centrelink he was informed of the care percentage decision and told the officer the decision was incorrect.  Mr MacTavish said he could not recall exactly when this conversation took place but he had definitely told the Centrelink officer he disagreed with the decision.  Mr MacTavish said the Centrelink officer was unable to give him a clear explanation of the care decision and referred him to the Child Support Agency.  Mr MacTavish said he tried on numerous occasions to resolve the matter through several visits to Centrelink and a number of calls with both Centrelink and the Child Support Agency.  Mr MacTavish said he had been bounced around between the two organisations like a pinball.

3. Mr MacTavish said during a conversation with a child support officer on 25 August 2021 he was told he would need to object to the Centrelink decision even though he felt he had already pointed out on many occasions that the decision was incorrect.  Mr MacTavish said he nonetheless submitted a formal objection immediately. 

4. Mr MacTavish told the Tribunal he was now being penalised because the Child Support Agency would not backdate the care decision even though he had tried to resolve the matter well before he had submitted his formal objection.  He said care of the children had changed from 5 January 2021 in accordance with court orders and the decision should be in place from that date.

5. Ms Weatherwax told the Tribunal she had provided a copy of the court orders to the Child Support Agency and left it with them to make a decision about the care of the children.  Ms Weatherwax said she had been paying child support and receiving Centrelink benefits in accordance with the care decision made by the Child Support Agency.

6. Ms Weatherwax added that she believed Mr MacTavish had been notified about the care decision through his myGov account and not by post so the Child Support Agency should have received a response from him if he had objected.  Ms Weatherwax said she was unaware if Mr MacTavish had gone into the Centrelink office.

7. 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.

8. The Child Support Agency may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) of the Act that subsection 87AA(1) applies as if the reference to 28 days was a reference to such longer period as determined to be appropriate.

9. In this case the Child Support Agency declined to make such a determination even though it was determined that special circumstances existed. The date of effect of the objection decision is, therefore, 26 August 2021 being the date Mr MacTavish lodged his objection. A decision by the Child Support Agency to either make a determination under subsection 87AA(2) or not to make such a determination is separately reviewable by the Tribunal. Mr MacTavish has applied to the Tribunal for a review of the date of effect decision.

10. 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”.

11. The Child Support Guide also states at 4.1.8, in relation to special circumstances, 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.

12. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

13. The Tribunal finds, based on advice from the Child Support Agency, that Mr MacTavish was notified of the outcome of the original decision by post in a letter from the Child Support Agency dated 20 January 2021.  Mr MacTavish has told the Tribunal he never received this correspondence as it was sent to the wrong address.  The Tribunal notes that according to the Child Support Agency the notice of the decision dated 20 January 2021 was issued to an incorrect address.  It could be argued that Mr MacTavish may not have been served with notice of the decision and consideration of special circumstances is, therefore, not required.

14. Mr MacTavish also contends that when he became aware of the original decision following a conversation with Centrelink he informed the Centrelink officer the decision was incorrect.  Mr MacTavish has said that during discussions with both Centrelink and the Child Support Agency he continued to express his dissatisfaction with the care decision.

15. The Tribunal notes in evidence from the Child Support Agency that, according to Centrelink records, on 15 January 2021 Mr MacTavish was advised about the care decision but not informed of his objection rights.

16. It appears, based on the evidence provided, that Mr MacTavish may have been unaware of his right to seek a review of the original decision made on 20 January 2021.  He was, however, informed of the decision by a Centrelink officer on 15 January 2021 and continued to express his concern about the outcome.  Mr MacTavish did not rest on his rights.

17. Even if the consideration of special circumstances were not required the Tribunal is satisfied the events as described by Mr MacTavish prevented him from objecting sooner. The Tribunal finds, therefore, that the discretion provided for in subsection 87AA(2) of the Act should be exercised in this case.

DECISION

The Tribunal sets aside the decision not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1988 and substitutes a new decision that the date of effect of the objection decision is 5 January 2021.