Scrivenor and Child Support Registrar (Child support)

[2021] AATA 3691

Scrivenor and Child Support Registrar (Child support) [2021] AATA 3691 (16 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021514

APPLICANT:  Mr Scrivenor

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member L Rieper

DECISION DATE:  16 August 2021

DECISION:

The decision under review is varied so that pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988, the date of effect of the objection decision made on 28 April 2021 is 19 August 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether parent ceased to take reasonable action during maximum interim period – 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 varied

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 Scrivenor and Ms Scrivenor are the separated parents of [Child 1], born [in] 2006.  They have another child whose care is not subject to this review.  A child support case has been registered with Services Australia – Child Support (Child Support) since at least March 2019. 

2. On 14 October 2020, Ms Scrivenor advised Child Support that she now had 100% care of [Child 1] and that this was [Child 1’s] choice, although he had also [suffered a major injury].  The care change had commenced on 19 August 2020.  On the same day Mr Scrivenor confirmed that the care change had occurred as advised.

3. On 1 February 2021, a decision was made to update Child Support’s records to show Mr Scrivenor had 0% care and Ms Scrivenor had 100% care from 19 August 2020.  However, because the care change was notified more than 28 days after it occurred Mr Scrivenor’s care change applied from 19 August 2020 and Ms Scrivenor’s care change applied from 14 October 2020.

4. On 16 February 2021, Mr Scrivenor objected to that decision on the basis [Child 1] was initially unable to stay with him because [Child 1] had been in a motorcycle accident and was confined to a wheelchair.  After [Child 1] had recovered, Mr Scrivenor had taken reasonable action to reinstate his care.

5. On 28 April 2021, a Child Support objections officer partly allowed the objection.  The objections officer applied an interim care determination and found that Mr Scrivenor had 35% care of [Child 1] and Ms Scrivenor had 65% care from 19 August 2020 to 9 October 2020.  From 10 October 2020 the care arrangement was accepted as 100% to Ms Scrivenor.  However, because Mr Scrivenor did not object until 16 February 2021 no change to the assessment occurred.

6. On 15 May 2021, Mr Scrivenor applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision.  The application was heard on 16 August 2021.  Mr Scrivenor attended the hearing by telephone and gave sworn evidence.  Ms Scrivenor elected not to participate in the proceedings and a representative of the Child Support Registrar did not appear either.

7. The Tribunal had before it the Statement and Documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (documents numbered 1–133).

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

Special circumstances

1. Section 87AA of the Registration Act says that an objection to a care percentage decision lodged more than 28 days after notice of the care percentage decision was served, if allowed, has effect on the day on which the person lodged the objection unless the Registrar is satisfied there are special circumstances that prevented the person from lodging the objection within 28 days.

2. There is no dispute regarding the care of [Child 1].  Mr Schulz conceded during the hearing that the initial change in care took place on or about 19 August 2020 which was before he was injured in an accident.  Mr Scrivenor’s argument is that there are special circumstances such that the delay in his objection to the decision of 4 November 2020 beyond 28 days should be disregarded.

3. Mr Schulz’s arguments are that:

• He understood that the previous care arrangement would be resumed when [Child 1] was out of his wheelchair in about mid-December.  That did not occur.

• A Federal Circuit Court hearing in respect of the care arrangements for [Child 1] was listed to commence in December 2020 such that the outcome would likely make any objection irrelevant.  The hearing was ultimately postponed because the judge became ill.  It has been rescheduled but not until February 2022.

• He continued to communicate with Child Support but was not familiar with the system and does not feel he was properly supported or assisted until January 2021 when he was assigned a case manager.

1. The term special circumstances is not defined in the Registration Act. In Gyselman & Gyselman[1] the Family Court considered the term in the context of a different provision of the child support laws and held that “as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary” and the legislature’s intent was that the court not interfere “in the ordinary run of cases”.

   [1] [1991] FamCA 93

2. The Child Support Guide also provides (at part 4.1.8), that:

   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.

3. While the Tribunal is not bound by policy, in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 the Full Federal Court 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 case the Tribunal regards the policy as a useful guide to applying the legislation and considers it consistent with the objects of the legislation.

4. The Tribunal accepts that Mr Scrivenor genuinely believed that the change in care was a short-term arrangement that would end when [Child 1] recovered from his injuries.  That proved not to be the case.  In his application for review Mr Scrivenor said that his special circumstances included communication difficulties and misleading information.  The file note of Ms Scrivenor’s notification on 14 October 2020 in relation to the change of care suggests the arrangement was temporary.  Ms Scrivenor was recorded as having advised that [Child 1] wished to recuperate in her care.  There is no indication that the arrangement was permanent.  In a written submission (folios 11–12) Mr Scrivenor said that he was provided with misleading information by Ms Scrivenor regarding [Child 1’s] recovery.

5. The Tribunal is satisfied that Mr Scrivenor reasonably relied upon inaccurate or misleading information in not seeking a review until 16 February 2021 and that special circumstances exist.  The objection was lodged 104 days after the date of the determination (although the date the notice of the care percentage decision was served is not clear from the evidence).  Therefore in accordance with subsection 87AA(2), the reference to 28 days in subsection 87AA(1) should be a reference to 104 days.  This means that the date of effect of the interim care determination should be the date of the objection decision.

The length of the interim determination

1. Mr Scrivenor also wants the interim care determination to be extended until February 2022 when the Federal Circuit Court hearing will take place.

2. The length of the interim determination must be decided in accordance with section 53A of the Act. In accordance with Item 2 of section 53A of the Act, the maximum interim care period is 26 weeks from the date of the care change (19 August 2020), given that the care change day occurred more than 38 weeks after the date of the court order ([in] December 2019). That means the interim determination could not extend beyond 17 February 2021.

3. Child Support has determined that the interim determination ceased on 9 October 2020 because from 10 October 2020 there was agreement that [Child 1] would stay in his mother’s care following his injuries. 

4. The Child Support Guide, at part 2.2.4, provides the following explanation of interim determinations:

When can an interim determination be made?

If a person is being prevented from having the child in their care in accordance with the care arrangement without their consent, and they take reasonable steps to have the care arrangement complied with, there may be an interim period where care is determined by the care arrangement rather than actual care. If an interim care determination is made, the Registrar will determine 2 percentages of care for each party under section 51 of the CSA Act. The first percentage is the amount of care the person should have of the child under the care arrangement. The second percentage is the amount of care the person actually has of the child. The first percentage of care will apply during the interim period, which means child support (and FTB, if relevant) will continue to be assessed in accordance with the care arrangement for the interim period. The length of the interim period will depend on a number of factors. The second percentage of care will apply after the interim period has ended.

…

Taking reasonable action to ensure compliance with care arrangement

The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment continue to be based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. Reasonable action could include:

·     negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement,

·     making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to,

·     seeking or obtaining legal advice regarding the making of a court order,

·     filing an application to a court to have an order made or enforced,

·     attending a hearing at court to seek an order to be made or enforced, or

·     notifying the police that the child has been taken without consent.

This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of both parties and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

·     a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative,

·     documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or

·     documentation of police or court action.

1. The Tribunal is satisfied that Mr Scrivenor ceased taking reasonable action to ensure compliance with the care arrangement from 10 October 2020 when it was agreed that [Child 1] would reside with his mother whilst recuperating from his injuries.  It is therefore appropriate that the interim determination ceased on 9 October 2020. 

2. That means the only variation to the decision under review is the date of effect of the interim care determination.

DECISION

The decision under review is varied so that pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988, the date of effect of the objection decision made on 28 April 2021 is 19 August 2020.