Merrill and Westaway (Child support)

[2018] AATA 3279

Merrill and Westaway (Child support) [2018] AATA 3279 (18 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC014198

APPLICANT:  Miss Merrill

OTHER PARTIES:  Child Support Registrar

Mr Westaway

TRIBUNAL:Member S Brakespeare

DECISION DATE:  18 July 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Date of effect of an objection decision to a care percentage decision - Whether special circumstances prevented the applicant objecting to the care percentage decision within the required timeframe - There were no special circumstances to make a determination under subsection 87AA(2) - 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. This review is about whether the date of effect of a care percentage decision, made on review by an objections officer of the Child Support Agency, can be backdated on the basis of Miss Merrill’s special circumstances.

2. Miss Merrill and Mr Westaway are the parents of the child [Child 1]. On 19 September 2016 an officer of the Child Support Agency made a care percentage determination reflecting that Miss Merrill had 0% care of the child from 8 May 2016 (the original decision).

3. Miss Merrill lodged an objection to that decision on 25 January 2018. An objections officer of the Child Support Agency allowed the objection on 10 May 2018, determining that Miss Merrill’s care percentage  for the child was 100% from 8 May 2016 (the review decision); however the date of effect of the review decision was 25 January 2018, being the date the objection was lodged  (the objection decision). The basis of that decision was that the objection to the care percentage decision was not lodged by Miss Merrill within the requisite 28 days of her being notified of the original decision.

4. The objections officer decided not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Act) that in the special circumstances of the case the period for lodging the objection should be extended (the subsection 87AA(2) decision).

5. Miss Merrill lodged an application for review of the subsection 87AA(2) decision with the tribunal.[1]

   [1] The objection decision is not before the tribunal.

6. A hearing was held on 18 July 2018. Miss Merrill and Mr Westaway gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with a bundle of documents relevant to the review.

7. 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 legislation relevant to this decision is contained in the Act.

2. The issues which arise in this case are:

   ·whether special circumstances prevented Miss Merrill from lodging her objection to the original decision within time; and, if so

   ·for what period should the period to object be extended.

CONSIDERATION

Issue 1 – Was Miss Merrill prevented by special circumstances from lodging her objection in time?

1. Section 87AA of the 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 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. Miss Merrill told the tribunal that she had received notice of the original decision at the time it was made. She did not lodge an objection immediately as the change to the child’s living situation had only just occurred and not enough time had elapsed for her to show a pattern of care. Subsequent to the decision being made (that the child was not in her care whilst in her parents’ care) she looked at other alternatives such as boarding school; however in the end the most appropriate arrangement was the one that was in place. She could not understand why she was not still considered to be the child’s carer and approached Centrelink on several occasions but could not get the response she required. It was an emotional situation for her.

5. In the 15 month period following the date of the original the decision was made she was living in a remote location whilst looking after her other children, she was working on a casual basis and she also endured a difficult pregnancy. She made a couple of short trips to [City 1] but did not have time to sit down with her parents and sort the care issue out. In January 2018 she was on maternity leave and spent a longer time in [City 1]. She was then in a position to discuss the care issue properly with her parents and to get the appropriate evidence to support the objection.

6. Mr Westaway told the tribunal that he does not have any contact with Miss Merrill at all and therefore was unable to specifically comment on her circumstances. He said that Miss Merrill chose to live in a remote area and that should not constitute a special circumstance. In his view the only reason Miss Merrill lodged the objection when she did was to ensure the child was on her health care card so that she could assist her parents to get a discount on the child’s school fees.  

7. Miss Merrill acknowledged that the need for the health care card contributed to her decision to lodge the objection when she did; however she was adamant that the other factors that she mentioned were the reasons she was prevented from lodging earlier.

8. The tribunal does not find that Miss Merrill’s remote location, her caring responsibilities for her other children or her difficult pregnancy constitute special circumstances. Nor is the tribunal satisfied that those circumstances prevented her from lodging the objection in time.

9. Miss Merrill also claimed that she  needed an extended period in [City 1], as occurred in January 2018, to have time to fully discuss the care situation with her parents in order to be able to lodge the objection. The tribunal is of the view that it was open to Miss Merrill to turn her mind to the objection earlier and the fact that she did not do so does not constitute a special circumstance.

10. The tribunal therefore finds that is not appropriate to make a determination under subsection 87AA(2) to extend the time for lodging the objection.

11. As the first issue has been decided in the negative, the tribunal is not required to consider the second issue.

DECISION

The decision under review is affirmed.