Starnes and Kinsey (Child Support Registrar)

Starnes and Kinsey (Child Support Registrar) [2018] AATA 1720 (10 April 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC013417
APPLICANT:  Mr Starnes
OTHER PARTIES:  Child Support Registrar
Miss Kinsey

TRIBUNAL:Member W Kennedy
DECISION DATE: 10 April 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that neither parent had care of [Child 1] from 4 September 2016 and that as a result the case was terminated at that time.

The Tribunal decides that the application of subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 means that the decision has effect from 4 September 2016.

CATCHWORDS
Child Support – Percentage of care – Determination of the likely pattern of care – Neither parent had care of the child - Decision under review set aside and substituted - Date of effect of the objection decision - Whether special circumstances prevented the objection being lodged on time - Special circumstances exist - Determination made under subsection 87AA(2).

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

Miss Kinsey and Mr Starnes are the parents of a number of children. This application concerns the care of one of the children, [Child 1], who was born in April 2000. From 19 January 2014 the child support assessment was based on Mr Starnes having 100% care of [Child 1].
On 8 September 2016 the Family Assistance Office advised the Child Support Agency of the Department of Human Services (the Department) that with effect from 4 September 2016 Mr Starnes had 0% care of [Child 1] and Miss Kinsey had 0% care of [Child 1]. On 15 September 2016 the Department sent the parents child support assessment statements showing that Mr Starnes had 100% care of [Child 1] up to 3 September 2016 but that from 4 September 2016 [Child 1] was not included in the assessment. As neither parent had care of [Child 1] and no other carer had applied for an assessment the child support case in respect of [Child 1] was terminated.
On 19 September 2016 the Department decided that an error had been made and that the child support case for [Child 1] should not have been terminated. The Department decided that Miss Kinsey had 100% care of [Child 1] with effect from 4 September 2016. Mr Starnes and Miss Kinsey were sent child support assessment (CS assessment) statements showing that Miss Kinsey had 100% care of [Child 1].
On 15 June 2017 Miss Kinsey contacted the Department, apparently to advise that [Child 1] was in her care again and to arrange for child support to be paid through the Department. At that time she was advised that the Department’s records showed that [Child 1] had been in her care since 4 September 2016. On 13 July 2017 the Department contacted Mr Starnes to advise him that Miss Kinsey had requested that payments of child support be made through the Department. In the course of the conversation Mr Starnes was advised that the Department’s records showed that [Child 1] had been in the care of Miss Kinsey since 4 September 2016. Mr Starnes disputed that Miss Kinsey had care of [Child 1]. On 18 July 2017 Mr Starnes contacted the Department, again claiming that [Child 1] had not been in the care of either of the parents from 4 September 2016. He was advised that he should lodge an objection to the decision made on 19 September 2016.
On 21 July 2017 Mr Starnes reported that a terminating event had taken place on 4 September 2016. On 11 August 2017 Mr Starnes signed an objection form. It is not clear when this form was lodged with the Department, however on 24 August 2017 the Department contacted Mr Starnes to discuss his objection. In support of his objection Mr Starnes drew the Department’s attention to the letter from [Ms A] dated 26 July 2017 that he had previously provided. On 11 January 2018 a Department objections officer allowed the objection, finding that both parents had provided 0% care of [Child 1] from 4 September 2016. The objections officer found that Mr Starnes had not objected to the decision until 24 August 2017 and that as a result the objection decision would not come into effect until that date. The objections officer decided not to apply the discretion found in subsection 87AA(2) of the Act, apparently on the basis that Mr Starnes had not requested that special circumstances be considered. This meant that the decision to allow the objection would have no effect on the child support assessment.
On 2 February 2018 Mr Starnes applied to this Tribunal. The Tribunal considered the application and determined the matter on 10 April 2018. In considering the application the Tribunal took into account the oral evidence of Mr Starnes and Miss Kinsey together with the documentary material provided by the Department (folios 1 to 265). Copies of these documents were provided to both parents prior to the hearing. Mr Starnes and Miss Kinsey both attended the hearing by conference telephone and gave their evidence under affirmations. The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

In this case the Tribunal has to decide whether a change of care took place on 4 September 2016 and, if so, the nature of that change and how it affects the child support assessment.

CONSIDERATION

The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the RC Act).
The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” for each parent in relation to the children.
At the hearing the parents agreed that on 4 September 2016 [Child 1] left Mr Starnes’s care and went to live with her adult sister, [Ms A]. On 8 September 2016 the Family Assistance Office (FAO) advised the Department that both parents had 0% care of [Child 1] with effect from 4 September 2016 (folio 24).
Subsection 12(2AA) of the Act states:
(2AA) A child support terminating event happens in relation to a child if:
(a) both of the parents of the child are not eligible carers of the child; and

(b) there are no non-parent carers entitled to be paid child support in relation to the child.

[Child 1]’s sister did not apply for child support and she is not entitled to be paid child support in respect of [Child 1]. The parents agree that from 4 September 2016 [Child 1] was not living with either of them and that they were not providing care for her. As a result a terminating event took place on 4 September 2016 and the child support assessment should have ended at that time.
The Department correctly terminated the case with effect from 4 September 2016 and on 15 September 2016 sent to the parents child support assessment summaries showing that [Child 1] was no longer a child of the assessment (folios 27 to 37). It is not apparent that the Department specifically advised the parents that the case in respect of [Child 1] had been terminated.
On 19 September 2016 the Department decided that the decision to terminate the case was incorrect and decided instead that Miss Kinsey had 100% care of [Child 1] with effect from 4 September 2017. It is not apparent what prompted this decision.
On 27 September 2016 both parents were advised by the Department that it had decided that with effect from 4 September 2016 Miss Kinsey had 100% care of [Child 1]. The Department sent Mr Starnes a series of documents, all dated 27 September 2016:
·      a letter advising Mr Starnes to pay his child support directly to Miss Kinsey (folio 40);
·      a notice advising Mr Starnes that his CS assessment for the period from 4 September 2016 to 30 October 2016 is $2,902.00 per annum (folios 41 to 43);
·      a notice advising Mr Starnes that his CS assessment for the period from 31 October 2016 to 2 December 2017 is $3,175.00 per annum (folios 44 to 46);
·      a letter advising Mr Starnes that his CS assessment for the period from 4 September 2016 to 30 October 2016 is $0.00 per fortnight and that his CS assessment for the period from 31 October 2016 is also $0.00 per fortnight (folios 49 to 50).
At the hearing Mr Starnes and Miss Kinsey both said that they had not immediately realised that the Department had decided that [Child 1] was in Miss Kinsey’s care from 4 September 2016. Miss Kinsey did not become aware of the decision until she contacted the Department on 15 June 2017. Mr Starnes said that he did not become aware of the decision until the Department contacted him on 13 July 2017.
Subsequent to Mr Starnes becoming aware of the decision he had a number of discussions with the Department about how to correct the error. Ultimately he lodged a formal objection to the decision. The date on which he lodged the objection is unclear. On 18 July 2017 Mr Starnes was advised to lodge an objection, however on 21 July 2017 he spoke to the Department and the Department recorded that he was reporting a termination event. He completed an objection form on 11 August 2017 but it is not apparent when he lodged that form and it was not discussed with him until 24 August 2017. At the hearing Mr Starnes said that he had objected within a few days of becoming aware of the decision of the Department.
The Tribunal finds that the conversation of 21 July 2017 (folios 65 to 67) which concerned the events of 4 September 2016 and during which Mr Starnes clearly disputed the decision ultimately made by the Department should be accepted as an objection to the decision made by the Department on 19 September 2016.
This case is characterised by many changes of care and it is apparent that the parents and the Department have at times been confused by the sequence of events. It is important to keep in mind that the decision before the Tribunal relates to the following key events:
·      4 September 2016: [Child 1] leaves Mr Starnes’s care and goes to live with her adult sister, [Ms A];
·      19 September 2016: the Department decides that Miss Kinsey has 100% care of [Child 1];
·      21 July 2017: Mr Starnes objects to the decision of 19 September 2016.
Thus the date of the event under consideration is 4 September 2016, the date of the original decision before the Tribunal is 19 September 2016 (not 27 September 2016 as stated by the objections officer) and the date of Mr Starnes’s objection is 21 July 2017 (not 24 August 2017 as stated by the objections officer). There appear to have been subsequent changes of care reported by the parents but these are not affected by any decision the Tribunal may make in relation to the decision of 19 September 2016.
The Tribunal finds that on 4 September 2016 a terminating event took place in accordance with subsection 12(2AA) of the Act. Accordingly the Tribunal sets aside the decision that the Department made on 19 September 2016 that Miss Kinsey had 100% care of [Child 1] with effect from 4 September 2016.
Section 87AA of the RC Act states:
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.
(2) If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:
(a) in a case where the person is a resident of a reciprocating jurisdiction--the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or
(b) otherwise--the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.
Under subsection 87AA(1), because Mr Starnes did not lodge his objection within 28 days of the decision, the date of effect of the Tribunal’s decision would be the date on which he lodged his objection, that being 21 July 2017. However subsection 87AA(2) provides that if there are special circumstances that prevented a person from lodging their objection within 28 days the period for lodging the objection may be extended.
The meaning of “special circumstances” in the context of social security law has been considered by this Tribunal and the courts on many occasions. The meaning of “special circumstances” was considered by the Administrative Appeals Tribunal in Re Beadle and the Director-General of Social Security [1984] AATA 176:
An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional.
In Groth v Secretary, Department of Social Security[1995] FCA 1708 it was said that circumstances are required that distinguish an applicant’s case from others and takes it out of the usual or ordinary case. It is relevant that subsection 87AA(2) provides that, not only must special circumstances exist, a person must be prevented by them from applying within 28 days.
Section 4.1.8 of the Child Support Guide states:
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.
If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (section 87AA(2)). The Registrar will consider if:
·      the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?
·      the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to DHS that the decision was being contested or raised their concerns in other ways - e.g. a complaint to DHS or the Ombudsman?
In this case Mr Starnes received contradictory advice from the Department as to the care of [Child 1] and his child support liability. He was sent documents on 15 September 2016 which advised him that [Child 1] was no longer a child of the assessment. He was then sent documents on 27 September 2016 which advised him that [Child 1] remained a child of the assessment but that his child support assessment was either nil or a nominated amount. He was advised that his child support liability, if there was any, should be paid directly to Miss Kinsey. He did not pay Miss Kinsey and it was not until he was contacted by the Department on 13 July 2017 that he became aware of the decision of 19 September 2016.
The contradictory information provided by the Department was certainly capable of misleading Mr Starnes, but the question is whether he was prevented from objecting as a result of that contradictory information. In hindsight Mr Starnes should have contacted the Department when he received the contradictory notices dated 27 September 2016. However he could have chosen to accept the notices that seemed accurate (that his CS assessment was nil) and ignore the notices that were contrary to the information provided to the Department (that he was required to pay child support to Miss Kinsey). Given the difficulties encountered when attempting to contact understaffed Government departments a decision to take no action is perfectly understandable and, in the circumstances, seems quite reasonable. The sum of the information provided by the Department did not make it clear that the Department had made a decision to which an objection was required.
At the hearing Mr Starnes said that he did not receive the letters of 27 September 2016. This could suggest that Mr Starnes cannot be found to have relied on misleading information if he did not receive any information. However, in this case the Tribunal finds that the lack of information would itself be misleading. Whether he did or did not receive the letters Mr Starnes could have been misled into believing that no action was necessary. After careful consideration the Tribunal concludes that the contradictory information provided by the Department constitutes special circumstances that should be considered to have prevented Mr Starnes from objecting to the decision.
In this case Miss Kinsey did not provide care to [Child 1] at the relevant time. Indeed, other than on a sporadic and occasional basis, she had not provided care for [Child 1] for more than 18 months prior to 4 September 2016 and she did not provide care for [Child 1] for many months afterwards. At the hearing Mr Starnes said that his case manager at the Department had “frozen” the assessment and that as a result he has not paid the child support mistakenly assessed by the Department. This means that a decision favourable to him would not result in a debt for Miss Kinsey. Accordingly, the Tribunal finds that the application of subsection 87AA(2) will not unreasonably adversely affect Miss Kinsey’s interests. The Tribunal finds that it would be a perverse outcome for an error by the Department to result in Mr Starnes having to pay to Miss Kinsey some thousands of dollars in child support for a period when she did not provide any care for the child.

DECISION

The Tribunal decides that the application of subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 means that the decision has effect from 4 September 2016.

[2018] AATA 1720

10 April 2018

Key Legal Topics

Areas of Law

Administrative Law

Family Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Natural Justice