Shersby and Anson (Child support)

[2022] AATA 2116

Shersby and Anson (Child support) [2022] AATA 2116 (13 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023081 and 2022/MC023129

APPLICANT:  Mr Shersby

OTHER PARTIES:  Child Support Registrar

Ms Anson

TRIBUNAL:Member K Dordevic, Presiding Member

Senior Member J Cipolla

DECISION DATE:  13 April 2022

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objections 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 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. These applications for review are in respect to the date of effect of two care objection decisions that were allowed (the date of effect decisions) by Services Australia – Child Support, hereafter referred to as the Agency.

2. Ms Anson (the mother) and Mr Shersby (the father) are the parents of one child. A child support assessment was registered with the Agency from 18 August 2015.

3. On 30 January 2018 the mother contacted Child Support and advised that there was a change to the child’s care arrangements. On 19 February 2018 the Agency accepted the care change, amending the care record to reflect that the mother had 65% and the father 35% care of the child from 30 January 2018. The father objected to that decision on 27 September 2021 and his objection was allowed on 26 November 2021, whereby the child was recorded as being in the mother’s 62% and the father’s 38% care from 30 January 2018 (the first care decision). The care record was amended from the date the father lodged his objection and not before.

4. On 18 April 2021 the mother contacted Child Support and advised that there was a change to the child’s care arrangements. On 31 May 2021 the Agency accepted the care change, amending the care record to reflect that the mother had 72% and the father 28% care of the child from 16 April 2021. The father objected to that decision on 27 September 2021 and his objection was allowed on 2 December 2021, whereby the child was recorded as being in the mother’s 67% and the father’s 33% care from 16 April 2021 (the second care decision). The care record was amended from the date the father lodged his objection, and not before.

5. The father sought review of the decisions by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) in a timely manner. The matters were heard on 30 March 2022. The father and mother appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing but provided relevant documentation. In reaching its decision, the tribunal considered the sworn evidence of the father and mother.

6. The tribunal delivered oral decisions in relation to the first and second care decision, affirming the decision made by the objections officer (decisions 2022/MC023082 and 2021/MC023033). In respect of the date of effect decisions under review, the tribunal required further information regarding the notices sent to the father and so issued an order directing the Agency, pursuant to section 95G of the Child Support (Registration and Collection) Act 1988 (the Registration Act), to provide the following evidence by 13 April 2022:

   ·     All address details held for Mr Shersby from August 2015 to date;

   ·     Copies of all notices/correspondence sent (including addresses) sent to Mr Shersby during the period 1 August 2015 to 26 September 2021;

   ·     An explanation of what is meant by “Pls note: corresponding letter to other parent marked ‘Deleted” in CSA system” at folio 13 of matter 2021/MC023032;

   ·     Any evidence of when Mr Shersby registered his myGov account, including for child support purposes; and

   ·     Whether any correspondence was sent to Mr Shersby electronically during the period, including to his myGov account, from August 2015 to date.

7. The Agency complied with the request on 4 April 2022 (folios C1 to C132). These documents were promptly exchanged with the parents. As agreed at hearing, the parents were provided with seven days in which to provide written submissions in response to the additional evidence provided by the Agency. The father provided written submissions to the tribunal on 13 April 2022 (folios A1 to A3). The mother elected not to respond. After considering the father’s submissions, the tribunal reached its decision on 13 April 2022.

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act) and the Registration Act. The tribunal also had regard to the Child Support Guide (the Guide), which sets out the Australian Government’s policies in relation to child support.

2. The issue which arises in this matter is from what date should the administrative assessment be amended to reflect the changes in the percentages of care attributed to the parents on 30 January 2018 and 16 April 2021?

CONSIDERATION

1. Subsection 87AA(1) of the Registration Act relevantly states that should a person lodge an objection to a care percentage decision and the objection is lodged more than 28 days after notice of the decision was served, and the objection is allowed, the date of effect of the review decision is the day on which the objection was lodged:

   Date of effect of objections relating to care percentage decisions that are allowed

   (1)  If:

   (a)  a person lodges, under section 80A, an objection to a care percentage decision; and

   (b)  the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and

(c)  the Registrar decides (the review decision), under section 87, 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.

1. The father does not dispute that he did not lodge his objection to the care decisions within 28 days of the decisions being made. Rather, he submits that he was never served notice of the decisions. His evidence was such that he received no correspondence from the Agency from the date that the case was registered on 18 August 2015 until sometime in September 2021 when he received a letter in the post. He simply did not notice that his child support was being paid by garnishing his wages in December 2017. He was not aware of any mail theft or other difficulties at the homes in which he resided from 2015 to 2021. Further, he did not have his mail redirected when he moved from home to home during the period 2015 to 2021.

2. The tribunal invited the father to provide an address history from 2015 to 2021. He initially stated that he was unable to do so. However, after the mother provided her record of his addresses during this period, the father confirmed that the mother’s testimony was correct. It is on this basis the tribunal finds that the father resided at the following addresses, noting when these addresses were reflected in the Agency’s record:

From	Address	Address reflected in Agency record
August 2015	[Address 1]	August 2015
2017	[Address 2]	Never recorded
2017 or 2018	[Address 3]	15 June 2017
Early 2021	[Address 4]	6 September 2021

1. The Agency record shows that the father was sent 123 notices prior to his lodging his objection decisions in September 2021. The record shows (at folios C126 to C127) that the father’s recorded address was the [Address 1] property from 20 August 2015, noting that though Centrelink informed Child Support on 21 August 2015 that the father’s address was [Address 5] no correspondence was sent to that address. His address details were then updated on 15 June 2017 to the [Address 3] address (at folio C72) and then updated to the [Address 4] address on 3 September 2021. The tribunal finds on the basis of the Agency’s submissions that from 28 September 2021 the father accessed his Agency notices electronically.

2. The first notice that was returned by Australia Post to the Agency, addressed to the [Address 1] property, was dated 16 February 2017. From 15 June 2017 notices were sent to the father’s [Address 3] address. The Agency record shows that the notice sent to the father dated 16 December 2017 was returned by Australia Post. Child Support advised (at folio C106):

   Please Note: Letters marked Returned are returned by Australia Post. After making attempts to locate the customer (tracing) is completed, it is marked deleted. All Returned mail is checked for tracing and then status then changed to Deleted. If it is still showing as returned, the status may not have changed.

3. The tribunal accepts the Agency’s submissions that the notices outlined in the letters list (at folios C106 and C118) were sent to the father and only marked deleted when returned. It is curious that these notices were returned by Australia Post and so marked “Deleted”, despite them being addressed correctly. In light of the contrary documentary evidence provided by the Agency post-hearing, the tribunal is not persuaded that the father was unaware that there was an assessment in place with the Agency from August 2015, as he contends. Certainly, the notices sent to him from 20 August 2015 to February 2017 were not returned to the Agency.

4. Regulations 31, 34 and 35 of the Child Support (Registration and Collection) Regulations 2018 relevantly state:

   31. Service of notices etc.

   (1)  Any notice or other communication given by or on behalf of the Registrar under the Act may be served on a person:

   (a)  if the person is a natural person:

   (i) by causing it to be personally served on the person; or

   (ii) by leaving it at the person's address for service; or

   (iii) if the person has consented to receiving such notices or communications by way of electronic communication--by delivering the notice or other communication by means of electronic communication; or

   (iv) by sending it by prepaid post to the person's address for service; or

…

(2)  If service has been attempted by use of prepaid post, then, unless the contrary is proved, service will be taken to have been effected at the time when the notice or other communication would, in the ordinary course of the post, have arrived at the place to which it was addressed.

…

34. Address for service

(1)The address last notified by a person to the Registrar as the address for service of the person is, for all purposes under the Act and this instrument, that person's address for service.

(2) If no address for service has been notified to the Registrar but the Registrar's records contain an address attributed to the person, the last such address in any record held by the Registrar is the person's address for service under the Act and this instrument.

35. Failure to notify change of address

A person who changes address and fails to give to the Registrar notice of the new address for service cannot plead the change of address as a defence in any proceedings (whether civil or criminal) instituted against that person under the Act or this instrument.

1. The Agency sent all correspondence to the father’s last known addresses. The above cited regulations clearly state the last address, as notified, is for all purposes that person’s address for service. Further, service is taken to have been effected when it would have arrived at that address in the ordinary course of the post. Thus, the father’s assertions that he did not receive notice of decisions made by the Agency cannot be relied upon to establish that he was not served notice of the care decisions dated 30 January 2018 and 16 April 2021, pursuant to paragraph 87AA(1)(b) of the Registration Act.

2. Subsection 87AA(2) of the Registration Act relevantly 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.

3. The father’s oral testimony was such that there were no special circumstances that prevented him from lodging his objections. Rather, he asserts that he was prevented from lodging his objection to the care decisions in a timely manner as he was never served notice of the decisions. The tribunal has already found that service of the notices were effected when they were sent to the father’s last known addresses. The tribunal is satisfied that there were no special circumstances that prevented the father from lodging his objections within 28 days.

4. The tribunal concludes that the care changes that took place on 30 January 2018 and 16 April 2021 are to be reflected in the administrative assessment from 27 September 2021 and not before.

DECISION

The decisions under review are affirmed.