Minhinnick and Minhinnick (Child support)

[2021] AATA 1534

Minhinnick and Minhinnick (Child support) [2021] AATA 1534 (21 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC020251 & 2020/BC020268

APPLICANT:  Mr Minhinnick

OTHER PARTIES:  Child Support Registrar

Ms Minhinnick

TRIBUNAL:Member J Thomson

DECISION DATE:  21 April 2021

DECISION:

2020/BC020251

The decision under review is affirmed.

2020/BC020268

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – late objection – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – decisions under review affirmed

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. Mr Minhinnick and Ms Minhinnick are the parents of [Child 1], born 2016, and [Child 2] born 2017 (the children).

2. Mr Minhinnick’s applications seek review of an objection decision made by the Child Support Agency (the CSA) on 6 October 2020. This decision allowed Mr Minhinnick’s objection to an earlier decision by the CSA dated 22 April 2020 rejecting his application for a change to the parents’ care percentages for the children, and in substitution, determined the care percentages to be recorded for the children as 86% care to Ms Minhinnick and 14% care to Mr Minhinnick, from 10 January 2020.

3. The objections officer also determined the date of effect of the 10 January 2020 change in care for the children as 8 July 2020, the date Mr Minhinnick lodged his objection to the CSA’s original decision of 22 April 2020, refusing his change in care notification the CSA’s records reflected he made on 18 March 2020.

4. The Tribunal heard both applications on 23 March 2021. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the CSA (Exhibit 1). Neither parent had copies of these documents with them at the hearing, but both were content for the hearing to proceed, notwithstanding they did not have their documents with them.

ISSUES

1. 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) Act 1988 (the Registration Act).

2. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the CSA makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate, and when such a divergence occurs, a parent can notify the CSA and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of notification and what was likely to happen thereafter?

3. Subsection 87AA(1) of the Registration Act provides that if:

   (a)  a person lodges an objection to a care percentage decision; and

   (b)  the objection is lodged more than 28 days after notice of the care percentage decision was served; and

   (c)   the Registrar decides (the review decision), to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;

   the date of effect of the review decision is the day on which the person lodged the objection.

4. Subsection 87AA(2) of the Registration Act provides, relevantly, that if the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the 28-day period referred to in paragraph 87AA(1)(b) above, the Registrar may determine that subsection 87AA(1) applies as if the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

ISSUES

1. The issues which arise in this case appear in the Reasons set out below.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing, and the documentation contained in Exhibit 1.

2. Following discussions between the Tribunal and the parents at the hearing, both parents agreed that the issue for consideration by the Tribunal was the date of effect of the care percentage determinations made by the objections officer. Both parents agreed the date of the change in care was 10 January 2020; Mr Minhinnick contended the date of effect for the change in care for the children should be 18 March 2020, the date on which the CSA’s records reflected he notified the change of care on 10 January 2020.

3. Prior to 18 March 2020, the care percentages being assessed by the CSA were 100% to Ms Minhinnick and 0% to Mr Minhinnick.

4. It was not disputed at the hearing that a change in care with respect to the children occurred on 10 January 2020, when, by agreement between the parents, Mr Minhinnick was to have two nights of care (Friday and Saturday) each fortnight. There was some confusion as to whether Mr Minhinnick was to have care for half of the school holidays, both during school term and the Christmas/New Year holiday period. However, both parents conceded that, whilst such an arrangement was discussed, it was not implemented from 10 January 2020.

5. Mr Minhinnick gave evidence that he notified the CSA on 18 March 2020 that from 10 January 2020, he had been having the two nights of care referred to in the preceding paragraph, effectively 52 nights of care, equating to 14% care, and that Ms Minhinnick was having 313 nights of care, equating to 86% care, from 10 January 2020.

6. It seems that the CSA incorrectly recorded Mr Minhinnick’s notification on 18 March 2020 regarding the number of nights of care he was having from 10 January 2020 as 84 nights. Both parents acknowledged at the hearing that the CSA’s records in this respect were incorrect and that the correct percentages Mr Minhinnick reported the parents were having from 10 January 2020 were 14% (52 nights) for Mr Minhinnick, and 86% (313 nights) for Ms Minhinnick.

7. In accordance with its usual procedure, following Mr Minhinnick’s notification on 18 March 2020, the CSA contacted Ms Minhinnick on 23 March 2020 to discuss the particulars of Mr Minhinnick’s change in care notification, which she disputed on the basis that she understood Mr Minhinnick, as [an employee], was to be [relocated] for a period of approximately three months from his [workplace] to [a location] to participate in [a work-related task].

8. Ms Minhinnick acknowledged at the hearing that this deployment did not take place until about October 2020, and is therefore not relevant to the decision, the subject of this review.

9. According to the CSA’s file records contained in Exhibit 1, the CSA contacted Mr Minhinnick on 22 April 2020, to inform him that Ms Minhinnick disputed his change in care notification. At the hearing, Mr Minhinnick initially denied that he had lodged the 18 March 2020 change in care notification referred to above, contending that that process had been initiated by a CSA officer, who had incorrectly recorded the particulars of the change in care. The CSA’s file note of its telephone conversation with Mr Minhinnick on 22 April 2020 records its officer, [Ms A], asking Mr Minhinnick “if that meant he is withdrawing his claim”, to which he is recorded as replying in the affirmative.

10. The CSA then proceeded to determine Mr Minhinnick’s pended change in care notification on 22 April 2020, rejecting his request for a new care determination, which the CSA incorrectly recorded as 23% to Mr Minhinnick and 77% to Ms Minhinnick, and finding that there had been no change in care, effectively leaving the care percentages as 100% to Ms Minhinnick and 0% to Mr Minhinnick.

11. The documentation contained in Exhibit 1 reflects the CSA sent letters to each of the parents dated 22 April 2020 notifying them of its decision to refuse to accept Mr Minhinnick’s change in care notification of 18 March 2020. Mr Minhinnick is therefore deemed to have received notification of the CSA’s decision by on or about 1 May 2020, at the latest, and needed to have lodged his objection by late May/early June 2020. He acknowledged at the hearing that he did not lodge his objection until 8 July 2020.

12. Mr Minhinnick initially asserted in his evidence to the Tribunal that he had not received the CSA’s letter of 22 April 2020. However, following questioning by the Tribunal, he acknowledged that he usually received communications from the CSA via surface mail and his myGov online email account, which he said did not always notify him that there were communications awaiting his attention in his inbox, but conceded he did not concern himself with such things.  

13. The Tribunal is not satisfied Mr Minhinnick’s apparent failure to monitor his surface mail and myGov email account constitutes a special circumstance which prevented him lodging his objection to the CSA’s initial decision of 22 April 2020 within the statutory 28-day time limit.

14. Accordingly, as the Tribunal has found there were no special circumstances as prescribed in subsection 87AA(2) of the Registration Act referred to above, which prevented Mr Minhinnick lodging his objection to the CSA’s decision of 22 April 2020 within the 28-day time limit prescribed in paragraph 87AA(1)(b) of the Registration Act, the provisions of subsection 87AA(1) require the date of effect of the change in care notified by Mr Minhinnick on 18 March 2020 to be the date upon which he lodged his objection on 8 July 2020.

15. The Tribunal therefore finds that the care percentages to be recorded for the children, [Child 1] and [Child 2] are 86% to Ms Minhinnick and 14% to Mr Minhinnick from 10 January 2020, with effect in the assessment from 8 July 2020.

16. The objection decision appears to contain a number of typographical errors, particularly with respect to the objections officer’s conclusion in the latter part of the Reasons that the date of effect for the application of the care percentages determined in the preceding paragraph is 22 April 2020, notwithstanding the earlier determination in the objection decision of the correct date of effect as the date Mr Minhinnick lodged his objection on 8 July 2020.

17. In the interests of clarity, the Tribunal concludes that the decision it has reached as set out in paragraph 24 above is essentially the same as the objection decision under review and affirms that decision as reflected in paragraph 24 of these reasons.

DECISION

2020/BC020251

The decision under review is affirmed.

2020/BC020268

The decision under review is affirmed.