Tuckman and Redner (Child support)

[2021] AATA 5035

Tuckman and Redner (Child support) [2021] AATA 5035 (2 December 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC022432

APPLICANT:  Miss Tuckman

OTHER PARTIES:  Child Support Registrar

Mr Redner

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  02 December 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – date of effect of care decision – section 87AA Child Support (Registration and Collection) Act – objection lodged more than 28 days after care decision made – whether there were special circumstances that prevented the objection being lodged in time – special circumstances not found – decision under review affirmed

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. This review is about the date of effect of care percentage determinations made for Miss Tuckman and Mr Redner in respect of their children [Child 1] (born September 2011) and [Child 2] (born March 2013).

2. On 14 February 2019 a new child support case was registered by the Child Support Agency with the liability commencing from 22 January 2019.  The Child Support Agency also made the decision to record the level of care for [Child 1] and [Child 2] as 65 per cent care to Miss Tuckman and 35 per cent care to Mr Redner from 10 October 2016 (the original decision).

3. On 8 July 2021 Miss Tuckman objected to this decision and on 13 September 2021 the Child Support Agency allowed the objection in part and made the decision to reflect that Miss Tuckman provides 93 per cent care and Mr Redner provides 7 per cent care of the children from 10 October 2016.  As special circumstances were not met the date of effect of the care decision was 8 July 2021 being the date Miss Tuckman lodged her objection (the objection decision).

4. On 29 September 2021 Miss Tuckman applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the date of effect of the objection decision.

5. The Tribunal conducted a hearing into the application on 2 December 2021.  Miss Tuckman and Mr Redner gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (190 pages). The Tribunal also received additional information from Miss Tuckman prior to the hearing and a copy was distributed to the parties (A1–A4).

ISSUES

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

2. The issue which arises in this case is whether or not there were special circumstances that prevented Miss Tuckman from making her objection to the original decision within 28 days of the date the notice of that decision was served upon her.

CONSIDERATION

1. Miss Tuckman told the Tribunal that she had objected to the original care decision because it was wrong and it was important to her to ensure the record was correct.  Miss Tuckman said this followed legal advice she had received through [a named agency].

2. Miss Tuckman explained that she was late to object primarily because she was going through a personal crisis at the time and struggling to manage a range of issues including child support.  Miss Tuckman said she was trying to deal with a drug addiction and her life was spiralling out of control.  Miss Tuckman said she was incapable of obtaining legal advice sooner as she could not leave the house and even the simplest tasks were difficult.

3. Miss Tuckman said to compound matters she also feared for the safety of the children and had a violence restraining order against Mr Redner which was still in place.  Miss Tuckman said, furthermore, her grandmother passed away [in] April 2019.

4. The Tribunal notes in evidence from Miss Tuckman a copy of a Family Violence Restraining Order dated [in] November 2020.  Mr Redner is the person bound by the order and the applicant is Miss Tuckman.  The order is extended to operate for the benefit of the children.  The Tribunal also notes in evidence from the Child Support Agency that Mr Redner was incarcerated from [March] 2021 until [September] 2021.

5. Mr Redner said he did not dispute that Miss Tuckman was going through a difficult time in 2020 and 2021 and this may have been the reason for the late objection to the care decision.  Mr Redner said both parents were experiencing similar problems at that time.

6. There is no time limit within which a person must lodge an objection against a care percentage decision.  If, however, the objection is made more than 28 days after the date the notice of the decision is served upon them, and the objection is either allowed in full or in part, the objection decision has effect from the date upon which the objection was lodged pursuant to subsection 87AA(1) of the Act.

7. The Child Support Agency may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) of the Act that subsection 87AA(1) applies as if the reference to 28 days was a reference to such longer period as determined to be appropriate.

8. In this case the Child Support Agency did not find special circumstances existed and declined to make such a determination.  As a consequence the date of effect of the objection decision is 8 July 2021 being the date Miss Tuckman lodged her objection.  A decision by the Child Support Agency to either make a determination under subsection 87AA(2) or not to make such a determination is separately reviewable by the Tribunal.  Miss Tuckman has applied to the Tribunal for a review of the date of effect decision.

9. The Act does not define the term special circumstances, but the Family Court in Gyselman & Gyselman [1991] FamCA 93 has held, “as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary”.

10. The Child Support Guide also states at 4.1.8, in relation to special circumstances, that:

    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.

11. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

12. The Tribunal finds that Miss Tuckman was notified of the outcome of the original decision in a letter from the Child Support Agency dated 14 February 2019.  As Miss Tuckman did not submit her objection within 28 days from the date she received this correspondence the Tribunal is satisfied that consideration of special circumstances is required.

13. Miss Tuckman has told the Tribunal her late objection was due to a number of factors including her grandmother passing away, her fear for the safety of the children at the time and personal issues she was dealing with which made it extremely difficult to address child support matters.

14. While having considerable sympathy in relation to the various events Miss Tuckman was trying to manage at the time, the Tribunal is not satisfied these events would have prevented her from objecting for more than two years.  The Tribunal notes that Miss Tuckman was able to submit a form to Centrelink on 20 November 2020 notifying of a change in care.  This would suggest Miss Tuckman was able to attend to child support matters.  Miss Tuckman did not submit her objection to the original decision, however, until 8 July 2021.

15. The Tribunal is satisfied there were no special circumstances preventing Miss Tuckman from objecting sooner to the original decision made on 14 February 2019.  The Tribunal therefore affirms the decision made by the Child Support Agency not to exercise the discretion provided for in subsection 87AA(2) of the Act.

DECISION

The decision under review is affirmed.