McClellan and Hubbard (Child support)

[2021] AATA 3184

McClellan and Hubbard (Child support) [2021] AATA 3184 (21 June 2021)

DIVISION:Social Services & the Department Division

REVIEW NUMBERS:  2021/MC021384 & 2021/MC021420

APPLICANT:  Ms McClellan

OTHER PARTIES:  Child Support Registrar

Mr Hubbard

TRIBUNAL:Member A Schiwy

DECISION DATE:  21 June 2021

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care of older child – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review set aside and substituted

CHILD SUPPORT – date of effect of Tribunal’s decision – no special circumstances – Tribunal decides not to make determination under section 87AA

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. Ms McClellan and Mr Hubbard are the parents of [Child 1], and this application is about the percentage of care each parent has for [Child 1].

2. [Child 1] was born in December 2002.  It was determined that Ms McClellan had 100% care of [Child 1].

3. On 21 July 2020 Mr Hubbard contacted Services Australia – Child Support (the Department) and told them that he had been informed by a family member that [Child 1] had left Ms McClellan’s home on 21 May 2020. 

4. On 24 July 2020 the Department decided that no one had care of [Child 1] from 21 May 2020 and the child support case was terminated from 21 May 2020.

5. On 2 March 2021 Ms McClellan objected to the decision.  On 26 April 2021 a Department objections officer decided that the change in care occurred on 12 June 2020.  The officer also decided that the date of effect was 2 March 2021 and therefore no change would be made to the assessment.

6. Ms McClellan applied to the tribunal on 4 May 2021 for a review of the objections officer’s decisions.

7. A hearing was held on 21 June 2021.  Ms McClellan and Mr Hubbard spoke to the tribunal via teleconference and gave evidence on affirmation.  

8. In considering this matter, the tribunal took into account the oral evidence of Ms McClellan and Mr Hubbard; and the relevant documentation provided by the Child Support Registrar.  Copies of the numbered documents were provided to all parties.

ISSUES

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked.

3. Subsection 12(2AA) of the Assessment Act says that a child support terminating event happens when neither parent is an eligible carer for a child and there are no non-parent carers entitled to be paid child support in respect of that child. Subsection 7B(1) of the Assessment Act says that a person is an eligible carer if the person has at least shared care of a child. Section 74 of the Assessment Act provides that if child support is payable and there is a child support terminating event, the Child Support Registrar must immediately take such action as is necessary to take account of the event.

4. In this case the issue is that the parents dispute the date that care of the child changed.

CONSIDERATION

Evidence

1. The Department papers included the following:

   ·A file note stating that an officer attempted to contact Ms McClellan on 24 July 2020 and left a message for her.

   ·A letter dated 24 July 2020 sent to Ms McClellan that stated that child support was not payable from 21 May 2020 as neither parent had sufficient care of the child.  The letter noted that she had been overpaid $1,086.59.

   ·A second letter dated 24 July 2020 sent to Ms McClellan that stated she owed $1,086.59 and she needed to make an arrangement to pay this amount back.

   ·A file note stating that an officer contacted Ms McClellan on 27 August 2020, but she did not want to “confirm privacy” and the officer was therefore unable to confirm a payment arrangement.

   ·On 9 February 2021 a letter was sent to Ms McClellan reminding her that she had an outstanding payment and if it was not paid by 23 February 2021 recovery action would be taken.

   ·A file note dated 22 February 2021 stating that Ms McClellan contacted the Department about the overpayment. 

   ·A file note dated 23 February 2021 stating that Ms McClellan rang again and said that [Child 1] had moved out, but she had been supporting him “during that time”. 

   ·A file note dated 1 March 2021 stating that Ms McClellan rang and said that [Child 1] did not move out of her house until 21 July 2020.  She said she had never received a call or letter from them.

   ·A file noted dated 2 March 2020 stating that Ms McClellan rang and said that [Child 1] “was in her care until July 2020, approximately until the second week”.

   ·A statement from Ms McClellan that [Child 1] had moved around the first or second week in July 2020 and officially registered on 21 July 2020 for youth allowance.

   ·On 2 March 2021 Ms McClellan made a statutory declaration that she had not received emails, letters or calls about child support until the overpayment letter had been sent to her.  She said she moved to a new house in December 2020.

   ·Centrelink informed the Department that [Child 1] had commenced receiving youth allowance payments on 3 July 2020 and that he stated on his claim form that he left home on 12 June 2020.  They paid family tax benefit to Ms McClellan up until 2 July 2020.

14.In a letter dated 8 March 2021 Mr Hubbard stated that:

·His mother contacted “[Ms A]” (Ms McClellan’s sister) on 10 July 2020 to check if [Child 1] was OK (with the COVID situation).

·A few days later his mother received a text from [Child 1], and they had a text message exchange.  [Child 1] told her that he was not living with his mother; he’d been kicked out for being irresponsible.  She told Mr Hubbard about this on 18 July 2020.

·He contacted [Ms A] and she rang him and said that [Child 1] was living with her stepson.  They had assisted [Child 1] to set up a bank account and deal with Centrelink.

·[Ms A] told him that [Child 1] had left home six weeks ago.

·Mr Hubbard provided copies of text messages between him and [Ms A].  In the texts he offers to pay the child support payments to her or [Child 1] directly.

1. Ms McClellan stated the following at the hearing:

   ·[Child 1] left home around the second week of July 2020.  She was unable to keep her rental property and had to move.  They had a dispute and he moved out.

   ·Family members interfered which made reconciling with [Child 1] and assisting him difficult.

   ·The last time (prior to her objection) that she had any communication with the Department was when [Child 1] turned 16.  They communicated via telephone and have never written to her.  When it was pointed out that she rang the Department on 22 February 2021 in response to a letter, Ms McClellan said she does not recall the conversation with the Department (refer to page 26 of the papers).

   ·When it was pointed out that the Department attempted to call her on 24 July 2020 and 27 August 2020, and left a message, Ms McClellan said she either didn’t get their message or they didn’t supply a telephone number (the tribunal notes that Ms McClellan did answer the second call but refused to undergo a privacy check).

   ·Her sister ([Ms A]) took [Child 1] to Centrelink behind her back.

   ·She had no idea that the Department had made a decision about the change in care until she was told about the overpayment. 

   ·When asked why she didn’t notify the Department (or Centrelink) when [Child 1] left home, Ms McClellan said it was the least of her thoughts at the time.  She was trying to contact [Child 1] and she had a lot going on in her life at the time including physical and mental health issues, however, she would not reveal what the issues were.

   ·When asked if Centrelink contacted her about [Child 1’s] claim for youth allowance, Ms McClellan said she did get a call from a social worker.  She said at the time [Child 1] was living with her.  When it was pointed out that he wouldn’t claim youth allowance while he was living with her, Ms McClellan said that he had left home but came back for a week which was when the social worker must have rung her.

Discussion of evidence and findings

1. Ms McClellan’s evidence was inconsistent and at times, not credible.  For example, it is not credible that a social worker would ring about [Child 1’s] application and recommend he be granted youth allowance if he was actually living at home.  It is also not credible that Ms McClellan has never received a letter from the Department, and it is clear that she contacted the Department soon after receiving the letter dated 9 February 2021.  After considering all of the evidence provided the tribunal found that:

   ·[Child 1] left home on 12 June 2020 and applied for youth allowance on or before 3 July 2020.

   ·Ms McClellan was informed of the decision made on 24 July 2020 in writing.

   ·Ms McClellan was aware that the Department was trying to contact her on 27 August 2020 but did not return their call.

   ·Ms McClellan made no attempt to contact the Department or Centrelink about the fact that [Child 1] had left home.

2. The tribunal decided that the care arrangements for [Child 1] changed on 12 June 2020 at which point neither parent had care of [Child 1].

Change in care and terminating event

1. Pursuant to section 49 of the Assessment Act, new care determinations must be made to reflect that neither parent had care of [Child 1]. Therefore, the tribunal decided that as at 12 June 2020, Ms McClellan had 0% care of [Child 1] and Mr Hubbard had 0% care.

2. Subsection 12(2AA) of the Assessment Act says that a child support terminating event happens when neither parent is an eligible carer for a child and there are no non-parent carers entitled to be paid child support in respect of that child. Subsection 7B(1) of the Assessment Act says that a person is an eligible carer if the person has at least shared care of a child. Subsection 5(3) of the Assessment Act says a person has shared care if their care percentage is at least 35%, but not more than 65%.

3. In this instance, both parents have a care percentage for [Child 1] of 0% from 12 June 2020.  This means that neither parent has at least shared care, and is therefore not an eligible carer, in respect of [Child 1].  There is no evidence that there was a non-parent carer entitled to payment of child support for [Child 1].  Therefore, a child support terminating event in respect of [Child 1] has occurred on 12 June 2020. 

4. Section 74 of the Assessment Act says that when the Registrar becomes aware of a child support terminating event, the Registrar must immediately take such action as is necessary to take into account the event.  In this case, that means that the child support assessment for [Child 1] is ended from 12 June 2020.

5. Having concluded that the care percentage for [Child 1] for both parents is 0% from 12 June 2020 (rather than 21 May 2020) the tribunal would have allowed Ms McClellan’s objection.

If Ms McClellan’s objection is to be allowed, from what date should the decision apply to the child support assessment?

1. There is no time limit on a person lodging an objection to a decision made by the Department about a percentage of care determination. However, if an objection is made more than 28 days after the notice of the care percentage decision was served upon the person, the objection decision only takes effect from the day the objection was made unless there are “special circumstances that prevented the person from lodging the objection within the period”, pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. In this case, notices of the care percentage decision were sent to the parents on 24 July 2020 and Ms McClellan made her objection on 2 March 2021.  Ms McClellan did not dispute that she made her objection more than 28 days after she received the notice of that decision.  She has submitted that she never received notification of the decision.

3. The meaning of “special circumstances” is not defined in the Registration and Collection Act. For guidance, the tribunal had regard to the Department’s policy, which is set out in the Child Support Guide (the Guide) at 4.1.8, which states:

   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.

   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 (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 that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?

   ·the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to DHS that the decision was being contested or raised their concerns in other ways - for example, a complaint to DHS or the Ombudsman?

   …………

   The tribunal is not bound by policy as set out in the Guide.  However, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan, J held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, the tribunal accepts the policy is unobjectionable and, in the interests of consistency of decision making under the Registration and Collection Act, considered that this policy should be applied.

4. After considering the evidence the tribunal found that Ms McClellan was in fact notified of the Department’s decision on 24 July 2020 but did not take any action until she was informed that recovery action would commence if she did not make an arrangement to pay the outstanding child support liability. 

5. The tribunal decided that there were not any special circumstances that prevented Ms McClellan from making her objection within the 28-day time period. Therefore, the discretion provided for in subsection 87AA(2) of the Registration and Collection Act should not be exercised in Ms McClellan’s case.

6. This means that the date from which the tribunal’s decision applies, that Ms McClellan had 100% care of [Child 1] until 12 June 2020, upon when a terminating event occurred, affects the child support assessment as prescribed by subsection 87AA(1) of the Registration and Collection Act, and that date is the date Ms McClellan made her objection: 2 March 2021. As this is after the date the terminating event occurred, the effect of my decision on the child support assessment has no consequence.

DECISION

The decisions under review are affirmed.