Stepney and Ziegler (Child support)

[2024] AATA 2014

Stepney and Ziegler (Child support) [2024] AATA 2014 (23 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/AC027363

APPLICANT:  Mr Stepney

OTHER PARTIES:  Child Support Registrar

MsZiegler

TRIBUNAL:Member C Breheny

DECISION DATE:  23 April 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS 

CHILD SUPPORT – percentage of care – date of effect – lodging objection within the required time frame – not satisfied that there are special circumstances – 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

REASONS FOR DECISION

BACKGROUND

1. Ms  Ziegler and Mr Stepney are the separated parents of [Child 1], born October 2013. On 14 May 2021 Ms Ziegler contacted Services Australia – Child Support (Child Support) and applied for an administrative assessment of child support.

2. On 5 June 2021 Ms Ziegler’s application was accepted and child support was payable on the basis that she had 100% care of [Child 1] from 25 October 2013. Mr Stepney is the parent liable to pay child support.

3. On 27 June 2023 Mr Stepney contacted Child Support to object to the decision made on 5 June 2021. He stated that he and Ms Ziegler were married and lived together when [Child 1] was born. Ms Ziegler only became [Child 1]’s primary caregiver in 2019, after their separation. Ms Ziegler confirmed that [Child 1] was in shared care from the date of her birth ([date]2013).

4. On 14 December 2023, a Child Support objections officer decided to allow the objection and determined that Ms Ziegler and Mr Stepney each had 50% shared care of [Child 1] from 25 October 2013. The objections officer, however, did not find that special circumstances existed in this case that prevented Mr Stepney from lodging an objection earlier (within the 28-day time frame provided for by the legislation). Thus, the new care percentages (as found by the objections officer) could only apply to the assessment from 27 June 2023, the date Mr Stepney lodged his objection.

5. On 16 January 2024, Mr Stepney applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision in relation to the date of effect. The application was heard on 23 April 2024. Ms Ziegler and Mr Stepney attended the hearing by telephone and gave evidence on affirmation. I had before me the Statement and Documents provided by Child Support pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975, received on 12 February 2024 and 8 April 2024 respectively (documents numbered 1–365).

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 Collection Act).

2. Sections 49 and 50 of the Act provide that a care determination must be made following an application for a child support assessment and requires consideration of the actual, or likely, pattern of care that the parents will have in relation to the children in a particular care period.

3. In this case, Ms Ziegler applied for a child support assessment on 14 May 2021, indicating that she had 100% care of [Child 1] from 25 October 2013. Mr Stepney could not be contacted at the time and Ms Ziegler’s application was accepted on 5 June 2021.

4. Mr Stepney objected to this decision on 27 June 2023. The objections officer allowed Mr Stepney’s objection and determined that Mr Stepney and Ms Ziegler had 50% shared care of [Child 1] from 25 October 2013. Both parties agreed that this was the correct care percentage from the time [Child 1] was born.

5. Mr Stepney stated that there was a period shortly after their separation that he did not have care of [Child 1]. He submitted though that by the time Ms Ziegler lodged her child support application in May 2021 he had substantial care of [Child 1] (about 30 to 32% according to his care calendar). A higher care percentage should therefore apply from an earlier date.

   Special circumstances

6. Section 81 of the Collection Act provides that objections to decisions made by the Registrar must be lodged within 28 days after notice of the decision has been served. This section does not apply to care decisions to which objections may be lodged at any time. However, section 87AA of the Collection Act provides for a time limit on the date of effect where an objection to a care decision has been allowed and the person lodged the objection outside the 28-day time frame.

7. It states if, on objection, a care decision is changed, the effect of the changed decision will only apply from the date the objection was lodged (if outside the 28-day time frame). In this case that is from 27 June 2023. Paragraph 87AA(2)(b), however, provides, in essence, that a longer than 28-day time frame to lodge an objection may apply if the Registrar (or the Tribunal standing in place of the Registrar) is satisfied that “special circumstances” apply in the case.

8. The term “special circumstances” is not defined in the Act. The Government’s online Child Support Guide (the Guide) provides guidance on this point and indicates that the person must explain why there was a delay in lodging the objection and show that the circumstances were “sufficiently special” for the person to receive the benefit of an extension of time in which to lodge the objection. The Guide at chapter 4.1.8 states:

   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.

   ………

9. Child Support records indicate that notices were sent to Mr Stepney and Ms Ziegler at various times in 2021 and 2022 advising that an application for a child support assessment had been accepted and that child support liability was calculated on the basis that Ms Ziegler had 100% care of [Child 1] (for example folios 64/65 and 84/85).

10. Mr Stepney stated that he did not receive the original notices advising that Ms Ziegler had lodged an application for child support. He had moved from his home in [City 1] and the notices had been sent to his former address.

11. He said that his parents continue to live in [City 1] and a staff member at the local post office told his mother that they were holding on to letters addressed to Mr Stepney. The post office staff member gave the letters to his mother, and she eventually gave them to him. This was about four to five months later. Mr Stepney agreed that he received the Child Support notices in late 2021 and he was aware of the child support case and his payment liability.

12. Mr Stepney said that he was very concerned about making sure that he paid child support on time. He gave the letters to his employer so that his child support liability could be deducted from his wages.

13. Mr Stepney noted that he then contacted Child Support to update his address and most likely received all notices sent to him from 2022 onwards. He did not read these notices thoroughly, however, and he did not realise that care percentages affected the amount for child support payable. He was “totally unaware” of care percentages and how they impacted on his child support liability.

14. Mr Stepney said that he received a letter from Centrelink in early 2023 and it indicated a “care percentage”. This is when he contacted Child Support and asked about care percentages. They explained how child support liability was calculated and that is when he lodged his objection.

15. Ms Ziegler noted that Mr Stepney used to run his own business and he was a ”smart man”. She suggested that he would have understood the notices had he read them carefully.

16. I have carefully considered the evidence before me, and I appreciate that the child support system is complicated. Mr Stepney’s evidence was that he was aware of his child support liability, and documents indicate that his child support liability was paid from the beginning of the assessment period. Mr Stepney said that he had seen the notices sent to him (at least) from late 2021 onwards. There is no evidence that anything prevented Mr Stepney from reading these notices carefully and asking questions of Child Support, if he did not understand them. Had he done so, he most likely would have lodged his objection to the decision made on 5 June 2021 much earlier.

17. Mr Stepney was also aware that a child support assessment had been made and there is no evidence to indicate that he was prevented from contacting Child Support to question the basis for the assessment.

18. Overall, I am therefore not satisfied that there are special circumstances such that Mr Stepney was prevented from lodging his objection within the required time frame.

19. Based on the evidence before me, I therefore find that Ms Ziegler and Mr Stepney each had 50% shared care of [Child 1] from 25 October 2013, with a date of effect of 27 June 2023. This is the same conclusion reached by the objections officer and I will therefore affirm the decision.

DECISION

The decision under review is affirmed.