Ricci and Ricci (Child support)

[2020] AATA 2673

Ricci and Ricci (Child support) [2020] AATA 2673 (11 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018309

APPLICANT:  Mr Ricci

OTHER PARTIES:  Child Support Registrar

Ms Ricci

TRIBUNAL:Member K Dordevic

DECISION DATE:  11 June 2020

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 - decision under review affirmed -date of effect of objection decision – whether there were special circumstances that prevented the objection being lodged in time - special circumstances exist - 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.

1. The decision of the tribunal and the reasons for the decision were delivered orally on 11 June 2020.

2. The following paragraphs are the reasons for the Tribunal’s decision.

Reasons for decision

1. Mr Ricci and Ms Ricci are the parents of two children. This application concerns the children’s care arrangements from 2 September 2019. 

2. From 31 May 2019 the Department of Human Services – Child Support determined that the care of the children was 86% to the mother and 14% to the father. 

3. On 3 September 2019 the father advised Child Support that there was a change to the care orders, whereby he would have four nights care per fortnight and half of all school holidays. On 17 September 2019 the care record was amended to reflect that the mother had 60% care and the father 40% care of the children from 2 September 2019.

4. On 28 November 2019 the mother objected to the decision. The objection was allowed on 10 January 2020, whereby the care record was amended to reflect that the mother has 67% care and the father 33% care of the children from 2 September 2019. The date of effect of the decision was 2 September 2019.

5. The father sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 30 January 2020.

6. The matter was heard on 11 June 2020. The parents appeared by conference telephone. The Child Support Registrar elected not to attend the hearing.  In reaching its decision the tribunal considered the sworn evidence of the parties as well as the documentation provided by Child Support (folios 1–104), the father (A1-A3) and the mother (B1).

7. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

10. There are two decisions before this tribunal. The first is a care percentage decision. The second is in relation to section 87AA of the Registration Act – essentially a date of effect decision.

11.  The tribunal makes the following findings. The Family Court ordered on 2 September 2019 that the father shall care for the children four nights per fortnight and half of all school holidays. The tribunal calculates that from 2 September 2019 the father will have 33% care (122 nights) and the mother 67% care (243 nights) in the 12 month period from 2 September 2019.

12. The tribunal finds that the father promptly notified of the change to the care arrangements. Thus, pursuant to section 54F of the Act, the care record is amended to reflect the fact that the father provides 33% care and the mother 67% care from 2 September 2019.

13.  Therefore, the decision under review is correct in respect of the care percentages of the parents.

14. Child Support determined that, even though the mother had lodged an objection outside the 28 day timeframe, the decision made by the objections officer would apply to the administrative assessment from 2 September 2019 (being the date the care changed and not the date that she lodged the objection), presumably pursuant to subsection 87AA(2) of the Registration Act, that states that if there are special circumstances that prevented the person from lodging their objection within 28 days, the decision maker may extend the 28 day period. 

15.  The mother lodged her application 59 days after she would be deemed to have received the notice of decision (pursuant to the Evidence Act 1995).

16.  The tribunal makes the following findings:

·On 9 September 2019 she disagreed with the child support officer’s advice that the father had 166 nights of care, so she was advised to disagree with pending care. This was a calculation error by the officer, as they multiplied four nights x 40 weeks and not 20 fortnights;

·On 18 October 2019 the mother queried the calculations. The officer advised that they could not explain how the calculations were reached. The mother stated that she was happy with the current calculations. She then sent an email confirming 60%/40%, apparently as she was not aware of how the % calculations were made even though she understood the nights of care; and

·On 27 November 2019 the mother notified of a further care change. Upon review the case officer advised that there was a mistake in the calculations of the original decision’s care percentages. The mother was advised to immediately lodge an objection decision.

17.  The Child Support Guide at 4.1.8, which outlines the Child Support’s policy, outlines circumstances that would fall within the scope of special circumstances. This includes that the parent reasonably relied upon “inaccurate or misleading information” and this prevented them from lodging an objection within the required timeframe. Consideration must also be given to whether it will prejudice the other parent or the objecting parent rested on their rights.

18.  The tribunal first considered the impact that backdating would have on the father, and in particular that (by the tribunal’s calculations) he would be placed in a situation of arrears of about $340. The tribunal is satisfied that the mother did not rest on her rights; she had raised concerns about the calculations and was first told by a Child Support officer that they were correct, and then another officer suggested that it was difficult to calculate her care given the documents in evidence. She immediately lodged her application upon being advised that the calculations were incorrect.

19.  Taking into account the legislation and the Guide the tribunal is satisfied that the mother’s description of her circumstances, and specifically that she relied upon inaccurate information by a Child Support officer, which shows that she queried the care percentage calculation on 9 September 2019 and 18 October 2019, justify her delay in lodging the objection application. Therefore, the date of effect is correctly determined to be 2 September 2019.

20. The tribunal affirms the decision in relation to section 87AA of the Registration Act.