Tuckey and Elwes (Child support)

[2023] AATA 2940

Tuckey and Elwes (Child support) [2023] AATA 2940 (7 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC025870

APPLICANT:  Mr Tuckey

OTHER PARTIES:  Child Support Registrar

Ms Elwes

TRIBUNAL:Member M Baulch

DECISION DATE:  7 August 2023

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that the care percentages determined by an objections officer on 6 November 2022 apply in the child support assessment from 16 August 2022, as this is the date on which Mr Tuckey should be taken to have made his objection.

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 set aside and substituted

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. The Child Support (Assessment) Act 1989 provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the ages and number of children, and their percentages of care.

2. Mr Tuckey and Ms Elwes are the separated parents of [the child], in respect of whom Services Australia – Child Support (Child Support) has made child support assessments.

3. On 3 April 2022, Child Support decided to apply a care percentage decision made by Services Australia – Centrelink, such that Mr Tuckey was taken to have 0% care of [the child] and Ms Elwes 100% care of [the child] from 25 March 2022.

4. Mr Tuckey objected to that decision and, on 6 November 2022, that objection was allowed.  The objections officer decided that there should be no change to the care percentages for [the child] that had applied in the child support assessment since 6 May 2019, which recorded Mr Tuckey as having 100% care.

5. However, the objections officer decided that the date from which their decision would apply to the child support assessment was 30 August 2022 as they were not satisfied that special circumstances had prevented Mr Tuckey from making his objection within 28 days of being notified of the original decision (the decision under review).  On 28 March 2023, Mr Tuckey applied to this tribunal seeking an independent review.

6. A hearing into the application for review was held by the tribunal on 7 August 2023. Mr Tuckey discussed the application for review with the tribunal by telephone and gave sworn evidence during the hearing. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. The tribunal had before it 189 pages of relevant documents provided to it and to the parties to the review, by Child Support, pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the AAT Act), copies of which Mr Tuckey confirmed he had received prior to the tribunal hearing.

7. Ms Elwes had been sent a letter to advise her of the date and time of the hearing on 17 July 2023. Ms Elwes was also sent SMS reminders about the date and time of the hearing on 2 August 2023, 3 August 2023 and 4 August 2023. When a tribunal hearing attendant attempted to contact Ms Elwes for the purposes of setting up the telephone conference to be used for the hearing, the calls were not answered. Pursuant to paragraph 40(1)(b) of the AAT Act, the tribunal proceeded with the hearing in the absence of a party who has had reasonable notice of the proceedings.

ISSUES

1. The statutory provisions relevant to this application for review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue that arises in this application for review is whether or not there were special circumstances that prevented Mr Tuckey from making an objection within 28 days of being notified of a decision not to change the care percentages for [the child].

CONSIDERATION

1. Mr Tuckey has successfully objected to Child Support’s decision, made on 3 April 2022, to change the care percentages that were applying in the child support assessment for [the child].

2. There is no time limit within which a person must lodge an objection against a care percentage decision.  However, if the person makes their objection more than 28 days after the date the notice of the decision is served upon them, and they are successful in their objection, the objection decision has effect from the date they made their objection pursuant to subsection 87AA(1) of the Act.

3. This is the case unless there are special circumstances that prevented the person from lodging the objection within 28 days, in which case the Registrar (or myself standing in the Registrar’s shoes) may treat the reference to 28 days in subsection 87AA(1) of the Act as a reference to a longer period as determined by the Registrar to be appropriate (subsection 87AA(2) of the Act refers).

4. The letter about the decision to record Mr Tuckey as having 0% care of [the child] from 25 March 2022 was sent to Mr Tuckey on 3 April 2022.  At that time, Mr Tuckey received his correspondence from Child Support by regular post and the letter is thus taken to have been delivered on 19 April 2022.[1]  Mr Tuckey therefore had until 17 May 2022 to make his objection within 28 days.

   [1] See sections 160 and 163 of the Evidence Act 1995

5. The objections officer has determined that Mr Tuckey made his objection on 30 August 2022.  However, having examined the evidence, I noted that Mr Tuckey first contacted Child Support about the decision made on 3 April 2022 on 16 August 2022.  A record of that contact says the following:

   Mr Tuckey called to inform that [the child] is in his care from 2019.

   Advised that [the child] was in his care from 06/05/2019.

   Advised that CNLK has made a decision that [the child] is in Ms Elwes’ care 100% from 25/03/2022.

   Advised that CNLK made the decision and he has to object to the decision with CNLK.

   Transferred to CNLK.

6. Objections against a decision about a percentage of care do not have to be made in writing (subsection 80(6) and section 80A of the Act).  A person can object by contacting Child Support and making their objection by telephone.  The only provision which specifies the requirements for the making of an objection is section 84 of the Act, which says that an ‘objection must state or give fully and in detail the grounds relied on’.  However, Child Support’s policy, set out in the Child Support Guide (the Guide) at 4.1.4,[2] is that if a person fails to detail the grounds upon which they object, Child Support is to clarify the grounds for the objection before it is determined.

   [2] Child Support Guide, Guides to Social Policy Law, the Department of Social Services, version 4.72, can be found at >

   Having regard to the file note of 16 August 2022, I was satisfied that Mr Tuckey made his dissatisfaction with the decision of 3 April 2022 sufficiently clear to Child Support on 16 August 2022, such that he can be taken to have objected to the decision on that date.  Therefore, the objections officer’s decision should apply from 16 August 2022, and not from 30 August 2022, unless there were special circumstances that prevented Mr Tuckey from objecting before 17 May 2022.

7. The legislation does not define special circumstances.  For assistance, I had regard to the Guide at 4.1.8, which describes special circumstances thus:

   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.

   I noted that I am not bound by policy as set out in the Guide.  However, in Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39, the 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 instance, I accepted the policy is unobjectionable and, in the interests of consistency of decision-making under the Act, considered that this policy should be applied.

8. Mr Tuckey advised me that from January 2022 to December 2022 he was working interstate.  He advised me that he made no arrangements to deal with his mail and he was not expecting any correspondence unless it related to road tolls.  Since 2019 he had not been required to deal with Centrelink or Child Support, so he did not expect to receive mail from them.

9. Mr Tuckey’s evidence was that he would return home from his interstate work once or twice a month.  However, when asked, Mr Tuckey was unable to explain why he did not open his mail during these visits.  Mr Tuckey said that it was unfair that he was successful in his objection and was still being charged child support when it was Ms Elwes who made false claims to Centrelink that [the child] had been in her care.

10. Having considered the matter, I was not persuaded that there were any special circumstances that prevented Mr Tuckey from objecting within 28 days.  He chose not to make arrangements to deal with his mail while working interstate and chose not to open his mail when he returned home once or twice per month.  Ultimately, Mr Tuckey is the author of his own misfortune and, had he made different choices, he could have objected within 28 days.

11. I declined to exercise the discretion provided for in subsection 87AA(2) of the Act in Mr Tuckey’s favour.  This means that the objections officer’s decision applies from the date Mr Tuckey made his objection, which was 16 August 2022.

12. I noted that Mr Tuckey was not given notice of the objections officer’s decision until 30 March 2023.  I consequently concluded that there are no issues with the timing of Mr Tuckey’s application to this tribunal that I must address.

13. Therefore, and for these reasons, I decided to set aside the decision under review and substituted my own decision.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that the care percentages determined by an objections officer on 6 November 2022 apply in the child support assessment from 16 August 2022, as this is the date on which Mr Tuckey should be taken to have made his objection.