Marnham and Penland (Child support)

Marnham and Penland (Child support) [2024] AATA 1186 (9 April 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC026986
APPLICANT:  Mr Marnham
OTHER PARTIES:  Child Support Registrar
Ms Penland

TRIBUNAL:Member D Tucker
DECISION DATE: 9 April 2024
DECISION:

The Tribunal sets aside the decision under review and instead decides that pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1989, the 28-day period in which to lodge an objection is extended so that Mr Marnham’s objection to Child Support’s care percentage decision of 15 May 2023 is made within that period.

(This means the application is successful.)

CATCHWORDS

CHILD SUPPORT – application for extension of time – objection to care percentage decision – change to care percentage dated from day father taken to have lodged objection – special circumstances to justify change from earlier date – father’s clear objection and detailed evidence at earliest opportunity – not aware of time limit – 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

Mr Marnham and Ms Penland] are the separated parents of two children, [Child 1], born 24 October 2011 (12 years old) and [Child 2], born 31 May 2010 (13 years old). This review is only concerned the care of [Child 1].
Since 13 November 2012 a child support assessment has been registered with Services Australia – Child Support (Child Support), with agency collection in place from 16 July 2019.
From 9 September 2021 until 18 February 2023 the assessment reflected that Mr Marnham had 100% care of both children. According to Mr Marnham, this was due to a court order which prevented the children being in the presence of Ms Penland’s partner.
This order expired on 14 February 2023. Ms Penland resumed having care of the children and Child Support decided that from 19 February 2023 each parent had 50% care of both children.
On 28 April 2023 Ms Penland notified Child Support that from 20 April 2023 there had been a change in care such that she would have 100% care of [Child 2] and 79% care of [Child 1]. She stated that this reflected the children’s decisions.
On 3 May 2023 Mr Marnham told Child Support that he disagreed with Ms Penland’s notification. Child Support asked him to provide evidence to support his position, with a deadline of 13 May 2023. A similar letter was sent to Ms Penland.
On 4 May 2023 Mr Marnham told Child Support that while he and Ms Penland had discussed a 50‑50 care arrangement, the care of the children had been “spasmodic” as they were allowed to decide where they stayed on an ad hoc basis. He and the mother had engaged in mediation on 14 March 2023 but failed to reach an agreement. Consequently, Mr Marnham was applying to the Family Court for an order giving each parent 50% care. He asked that in the interim Child Support reflect this arrangement in the assessment. He also provided a corroborating statement from his partner and a care calendar. Mr Marnham also provided a copy of an email exchange between himself and Ms Penland about the care arrangements which made it clear that both parents had some degree of care.
Ms Penland did not provide any evidence to support her notification of a change in care.
Despite this, on 15 May 2023 Child Support accepted Ms Penland’s notification and applied the following care percentages from 28 April 2023:
· For [Child 1] 79% and 21% to the mother and father respectively; and
· For [Child 2] 100% and 0% to Ms Penland and Mr Marnham respectively.
Mr Marnham was notified of this decision via Child Support’s letter of 15 May 2023.
On 10 July 2023 the Family Court made orders directing that each parent would have 50% care of [Child 1] and that [Child 2] would live with the mother and spend time with the father in accordance with her ([Child 2]’s) wishes.
On 21 July 2023 Mr Marnham contacted Child Support again to voice his dissent with its decision of 15 May 2023 and to provide copies of the Family Court orders. Child Support took this to be Mr Marnham formally lodging an objection to its decision. As this was 67 days after he was notified of Child Support’s decision of 15 May 2023, he had exceeded the 28‑day timeframe prescribed by legislation (discussed further below).
On 11 August 2023 while the objection process was still in progress, Child Support decided that the care percentages for [Child 1] were 50% to each parent from 10 July 2023, based on the Family Court’s orders.
On 16 October 2023 after conducting a merits review, the objections officer decided to set aside its decision of 15 May 2023 and substitute the decision that each parent had 50% care of [Child 1] from 19 February 2023.
However, Child Support implemented this decision from 21 July 2023, the date that Mr Marnham was taken to have lodged his objection. This was because Child Support did not accept that there were special circumstances that prevented him from objecting within the 28‑day statutory time limit.
The effect was that Mr Marnham’s child support liability for the period 19 February 2023 until 21 July 2023 was calculated based on care percentages of 21% and 79% to him and Ms Penland respectively, despite Child Support deciding that the actual care percentages were 51% and 49%, as Mr Marnham had consistently asserted.
On 30 October 2023 Mr Marnham applied to this Tribunal for independent review. He and the mother gave affirmed evidence via telephone at a hearing on 9 April 2024. In addition to the oral evidence of both parties, the Tribunal considered documentary material provided by Child Support and the parties prior to its hearing.

LEGISLATION

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

CONSIDERATION

Care percentage decision (2023/MC027015)

Mr Marnham and Ms Penland told the Tribunal that they were not disputing the care percentages determined by Child Support’s objections officer on 16 October 2023. Mr Marnham explained that he applied for review of Child Support’s decision to refuse him an extension of time (EOT) to lodge his objection, which affects the date of effect of child support’s care decision.
The Tribunal reviewed child support’s care decision separately (2023/MC027015) and affirmed it, determining that the care percentages for [Child 1] were as follows:
· 50% to each parent from 19 February 2023, and
· there was no change in [Child 1]’s care from 28 April 2023.

EOT decision (2023/MC026986)

There is no time limit on lodging an objection. However, section 87AA of the Registration Act provides that if a person lodges an objection to a care percentage decision more than 28 days after they are served with a notice of a care percentage decision, then any objection decision that changes the original decision is taken to have had effect from the day the person lodged the objection.
As outlined above, via the objections process Child Support reversed its earlier decision to reflect care percentages in relation to [Child 1] of 79% and 21% to the mother and father respectively from 28 April 2023. However, Child Support’s objections officer decided that this decision took effect from 21 July 2023, the date that Mr Marnham lodged his objection.
Subsection 87AA(2) of the Registration Act provides that the Child Support Registrar may extend this 28-day period to such longer period as the Registrar determines to be appropriate if there are special circumstances that prevented the objection being lodged within 28 days.
The question is whether there were special circumstances which prevented Mr Marnham from lodging his objection earlier than 21 July 2023, to the extent that they justify exercising the discretion afforded by subsection 87AA(2), to give effect to the objection decision of 16 October 2023 from an earlier date.
“Special circumstances” are not defined in legislation but are discussed in the Child Support Guide (the Guide) which contains government policy about the application of child support legislation. The Tribunal is not bound to follow government policy, but where it is consistent with the objects of legislation, it will apply it, in accordance with rulings by the Federal Court.[1]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
At section 4.1.8, the Guide includes the following:
Objection decision to apply from date of original decision
The care percentage objection decision may have effect from day the original decision took effect if the Registrar is satisfied that there are special circumstances that prevented the person from lodging their objection within the required timeframe (CSRC Act section 87AA(2)). The Registrar must first be satisfied that special circumstances exist, and then the Registrar has discretion as to whether to extend the period in which to lodge the objection, in order for the objection decision to have effect from the date of the original decision.
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 the date of the original decision. 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.
If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (CSRC Act section 87AA(2)). The Registrar will consider if:
·the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension create a significant overpayment or significant arrears of child support?
·the applicant rested on their rights, as they did not take any action prior to lodging the objection. For example, did the applicant make any efforts to lodge the objection earlier, communicate to Services Australia that the decision was being contested or raised their concerns in other ways - for example, a complaint to Services Australia or the Ombudsman?
Ms Penland told the Tribunal that her notification to Child Support was based on the intentions voiced to her by the children, rather than a pattern of care that had already been established. It was therefore a forecast of what the pattern of care was likely to be. It was therefore not possible for her to provide a calendar of care or third-party statements to support her notification.
Ms Penland explained that the children did not follow through on the intentions they expressed to her, and shortly after her notification, their care became an ad hoc arrangement. Ms Penland said that the calendars which Mr Marnham provided to Child Support on 4 May 2023 and 21 July 2023 were plausible, but she was not able to definitely confirm it or refute it because she had not kept a diary of her own.
The Tribunal notes that Mr Marnham was given notice of Ms Penland’s notification on 2 May 2023, and on 3 May 2023 he clearly stated his disagreement with it, by providing a detailed statement.
The same day, Child Support’s letter invited him to provide further evidence. The next day, on 4 May 2023, he did so, providing a detailed explanation of the children’s care and third‑party statements. He also explained that he had arranged mediation between himself and Ms Penland and was applying to the Family Court for an order giving each parent 50% care. In the Tribunal’s view, Mr Marnham could not have voiced his objection to the proposed change in care more fully or unambiguously than he did.
Despite this, and Ms Penland not providing any evidence to support her notification, Child Support decided to accept it.
Mr Marnham told the Tribunal that he felt overwhelmed and discouraged by Child Support’s process, as it appeared to have made its decision with no regard for the evidence he provided and without explanation. He also felt he had made every possible argument and provided all the evidence available to him at that point. He told the Tribunal that “I had no faith I would be heard” and “gave up” because he felt the process was stacked against him.
The Tribunal notes that this was the first occasion that Mr Marnham had engaged in an objection process. He told the Tribunal he was not aware of the 28-day statutory time limit that commenced from the date he was notified of Child Support’s decision on 15 May 2023.
In the Tribunal’s view, it would not be reasonable to conclude that Mr Marnham rested on his rights. If anything, he provided his evidence too speedily. If he had provided the same evidence to Child Support after it made its decision on 15 May 2023, this would have been construed as an objection on his part. Mr Marnham’s promptness in providing a full response to Ms Penland’s notification worked against him.
After 15 May 2023 Mr Marnham kept a diary of the children’s care. By 21 July 2023 he felt this record had accumulated sufficiently to provide further evidence to support his position. He contacted Child Support, and this was construed as his objection. Mr Marnham provided copies of the orders made by the Family Court on 10 July 2023, giving the parents equal care of [Child 1]. Based on these orders, on 11 August 2023 Child Support determined new care percentages for [Child 1] of 50% to each parent.
Parenthetically, the Tribunal notes that from 24 August 2023 care of [Child 2] returned to a 50‑50 arrangement.
Based on the evidence outlined above, the Tribunal finds that Mr Marnham reasonably believed that by 15 May 2023 he had done all he could to object to Ms Penland’s notification about [Child 1]’s care, beginning with his contact with Child Support on 3 May 2023. In his prompt and fulsome response, he provided all the evidence available to him at that time. He was not aware of the 28-day time limit for lodging an objection, or that this period commenced after the decision had been notified to him. Based on these findings, the Tribunal is satisfied that there are special circumstances that make it is appropriate to extend the 28‑day period in which Mr Marnham was required to lodge his objection.
The Tribunal considered the impact on Ms Penland of any decision to provide an extension of time for Mr Marnham’s objection. She told the Tribunal that she was happy to leave the decision to the Tribunal based on the available evidence. In the Tribunal’s view, the impact on her interests of granting an extension of time will be relatively mild and does not outweigh the fairness considerations outlined above.

DECISION

(This means the application is successful.)

[2024] AATA 1186

9 April 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies