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Tribunal: Member Jean Cuthbert

The Department of Human Services – Child Support (the Department) had made child support assessments under which Mr Bramley was liable to pay child support to Ms Jennings.

The Child Support (Assessment) Act 1989 (the Act) provides a statutory formula to be used when calculating the child support payable by one separated parent to the other. This formula contains variables such as the percentages of care the parents have of the children. The applications for review concerned decisions about care percentages that applied in the child support assessments in respect of two children of Ms Jennings and Mr Bramley and the dates of effect of objection decisions.

The care percentages of the children were changed by the Department on two occasions in July 2013 and December 2013 to reflect changes in the pattern of care of the children. On 3 February 2017, Ms Jennings lodged objections to both of the changes and an objections officer partly allowed the objection decreasing the care percentages attributed to Mr Bramley in 2013. However, as Ms Jennings did not lodge her objection within 28 days of receiving notice of the two decisions the date of effect of the objection decision is the date she lodged her objection. This may be waived if there were special circumstances preventing her from lodging her objection.[1] The objections officer decided there were no special circumstances and therefore both care percentages applied from 3 February 2017. Ms Jennings requested a review of this decision and the care percentage decisions by the Tribunal.

The Tribunal had to determine whether there were changes to the pattern of care such that the care percentages should be changed in the two relevant periods and, if so, whether there were special circumstances that prevented Ms Jennings from lodging her objections within 28 days.

The Tribunal affirmed the decisions of the objections officer. The Tribunal found that after the first change in July 2013 there was a pattern of care for both children such that it could be expected that Mr Bramley would continue to have at least 14% care.  The Tribunal found that the pattern of care for both children changed in December 2013, such that it was no longer expected that they would be in Mr Bramley’s care 14% of the time and care percentages of 5% for Mr Bramley and 95% for Ms Jennings were accepted as accurate by the Tribunal.  

The Tribunal then considered any special circumstances that may have prevented Ms Jennings from objecting within time. Ms Jennings claimed that she did not receive the letters sent to her advising her of the changes to the care percentages. She told the Tribunal that when she applied for a child support assessment she had specifically asked to be sent letters by post rather than receiving access online. The Tribunal noted that a person using the MyGov system receives an SMS message advising that a document has been loaded and was available to be viewed online. In the period 1 August 2013 to the end of 2014 only one letter was sent to Ms Jennings by post and five letters were posted online. She would have received five SMS messages. In those circumstances, the Tribunal found that Ms Jennings’s failure to read online documents did not amount to special circumstances that prevented her from lodging her objections within the required timeframe.

The Tribunal therefore affirmed the care percentage decisions and the decisions not to backdate the date of effect of Ms Jennings’s successful objection decisions.

Read the full written decision on AustLii.

[1] Section 54F of the Child Support (Assessment) Act 1989