Tallents and Baiss (Child support)

[2022] AATA 2371

Tallents and Baiss (Child support) [2022] AATA 2371 (13 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023446

APPLICANT:  Mr Tallents

OTHER PARTIES:  Child Support Registrar 

Ms Baiss    

TRIBUNAL:  Member R King

DECISION DATE:  13 June 2022

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – no 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.

REASONS FOR DECISION

BACKGROUND

1. Mr Tallents and Ms Baiss are the parents of [Child 1] (age 14) and [Child 2] (age 9).  From 2 February 2020 the care of both children was recorded as 100% with Ms Baiss by the Child Support Agency (CSA) as part of an administrative child support assessment. 

2. On 11 February 2021, Mr Tallents contacted the CSA and advised that he and Ms Baiss had agreed to a new care arrangement whereby Mr Tallents had 75% of the care of [Child 1] and Ms Baiss had 25% of [Child 1]’s care and Ms Baiss had 75% of the care of [Child 2] and Mr Tallents had 25% of [Child 2]’s care.

3. On 30 March 2021, the CSA decided not to revoke he existing care percentage determination.  The CSA had been unable to contact Ms Baiss and Mr Tallents had not provided sufficient evidence to establish that the care arrangements had changed.

4. On 13 December 2021 (more 28 days after being provided with the decision), Mr Tallents lodged an objection to the care percentage determination for both children.

5. On 1 February 2022, an objections officer allowed Mr Tallents’s objection to the care percentage determinations for both children.  After speaking with both parents, the objections officer was satisfied that new care arrangements had commenced on or around 11 February 2021.  The objections officer revoked the existing care percentage determination and replaced it with a new care percentage determination that Mr Tallents had 75% of the care of [Child 1] and Ms Baiss had 25% of [Child 1]’s care and Ms Baiss had 75% of the care of [Child 2] and Mr Tallents had 25% of [Child 2]’s care.

6. The objections officer found that there were no special circumstances that prevented Mr Tallents from lodging his objection within 28 days of being provided with the original decision not to change the care percentages for [Child 1] and [Child 2].  This meant that the date of effect of the new care percentage determination for [Child 1] and [Child 2] was the date of Mr Tallents’s objection to the original decision not to change the care percentages.  It followed that the date of effect of the new care percentage determination was 13 December 2021.

7. On 9 March 2022, (more than 28 days after being provided with the objection decision), Mr Tallents applied to the tribunal for review of the objection decision. 

8. Ms Baiss was added as a party to Mr Tallents’s application. 

9. The tribunal conducted a hearing on 8 June 2022.  Mr Tallents participated and provided sworn evidence by conference telephone.  The tribunal was unable to contact Ms Baiss at the time of the hearing.

CONSIDERATION

1. Mr Tallents told the tribunal that he accepted the care percentage determinations that had been made by the objections officer for [Child 1] and for [Child 2].  He was seeking review only of the date of effect of the new care percentage determinations.

2. Mr Tallents told the tribunal that he thought it was unfair that he continued to pay child support to Ms Baiss, even through they equally shared care of the children.  He said that he had tried to discuss with Ms Baiss a plan whereby she would return to him payments made to her by the CSA after 10 February 2021.  However, she declined to enter into such an arrangement, so he had no recourse but to take the matter to the tribunal.

3. Mr Tallents said that his objection (to the decision to not change the care percentages) was not lodged within 28 days because he was unaware that the CSA had decided not to change the care percentages.  He said he had moved house and any written decision may have been sent to his old address.  He also said that he did not have internet access at home and was therefore unable to check any letters or notices that might have been sent to his CSA portal or by email.

Application of the law

1. The relevant provisions are contained in the Child Support (Registration and Collection) Act 198 (the CSRC Act).  The Child Support Guide (the Guide) contains detailed policy guidelines for CSA officers to use when applying the Act.  The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Section 87AA of the CSRC Act requires that, when a person lodges an objection to a care percentage decision more than 28 days after being served notice of the decision and the objection is allowed, the date of effect of the objection decision is the date when the objection was lodged.  Subsection 87AA(2) allows the decision-maker to substitute the 28 day limit with an appropriate longer period if there are special circumstances that prevented the person from lodging the objection within 28 days.

3. Special circumstances are not defined in the CSRC Act but there is a substantial case law relating to the meaning of the term special circumstances when it is used in child support and other related legislation such as social security and family assistance legislation.  In summary, the case law requires that each set of circumstances must be considered individually but that to be special the circumstances must be unusual and substantially beyond the control of the person.

4. The Guide provides four examples of circumstances that might be regarded as special for purposes of application of subsection 87AA(2) of the CSRC Act.  These are: 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.

5. While these examples are by no means exhaustive, they clearly suggest the need for a very substantial barrier to timely lodgement.  The tribunal is not satisfied that Mr Tallents experienced any such barrier.  It is his responsibility and well within his powers to ensure that the CSA has a current mailing address.  While he may not have access to internet at home for financial or other reasons, members of the public have ready access to free internet through public libraries and internet hot spots provided by local government authorities and numerous businesses including cafes and shopping malls.  Mr Tallents has not provided any evidence to suggest that he has significant literacy, health problems or other circumstances that would make it practically impossible for him to receive and respond to notices served by the CSA.

6. It follows that subsection 87AA(1) must apply in this case which means that the objections officer correctly determined that the date of effect of the new care percentage determinations for [Child 1] and [Child 2] is 13 December 2021.

DECISION

The tribunal affirms the decision under review.