Auster and Norris (Child support)
[2024] ARTA 203
•5 November 2024
Auster and Norris (Child support) [2024] ARTA 203 (5 November 2024)
Applicant:Mr Auster
Respondent: Child Support Registrar
Other Party: Miss Norris
Tribunal Number: 2024/SC028201
Tribunal:General Member J von Doussa
Place:Adelaide
Date:5 November 2024
Decision:The Tribunal sets aside the decision under review and substitutes a decision disallowing the objection dated 10 May 2023.
CATCHWORDS
CHILD SUPPORT – change to percentage of care – decision made after incorrect information erroneously given by father – date of revocation – procedural error – not new care change notification but objection to primary decision – historical chronology – repayment based on incorrect date – no change to cost percentage – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Mr Auster and Miss Norris are the separated parents of [the child], born in 2012.
This review came to the Tribunal as an application by Mr Auster to review an objection decision of the Child Support Registrar (Child Support) dated 2 February 2024, provided to the parties by letter dated 18 March 2024.
The objections officer conducted a review of the primary decision of Child Support to reflect the percentage care of [the child] as 100% to Miss Norris from 12 January 2019.
The actual date of the original primary decision is somewhat unclear. In some documents it is referred to as a decision dated 17 July 2023 and in other Tribunal documents it is referred to as a decision dated 13 November 2023. The reasons for this confusion are explained below and can also be gleaned from the chronology at the end of these reasons. However, having considered all the information in the Tribunal papers, this procedural history misconstrues events.
An initial care percentage determination for assessing child support had been in place since 10 June 2014 where Mr Auster had 100% care percentage of [the child] and Miss Norris had 0% care percentage.
On 29 January 2020, Child Support made a decision to revoke the initial care percentages and record new care percentages, namely 11% care to Mr Auster and 89% care to Miss Norris effective from 4 January 2020. This was based on a care notification received on 22 January 2020.
On 10 May 2023, in what is recorded as a “Pending Online Care Advice” in the Tribunal papers, Mr Auster informed Child Support that he had 0% care and Miss Norris had 100% care of [the child] from 12 January 2019 (T167).
The exact circumstances of the 10 May 2023 contact by Mr Auster are somewhat unclear. On 27 November 2023 Mr Auster told Child Support over the telephone that he had been contacted by Child Support on 10 May 2023 and was having a “difficult time” and in response to a question about care, he mixed up the years and agreed that Miss Norris had 100% care of [the child] from 12 January 2019 (T285). Later, Mr Auster realised he had made an error, and he now maintains, as he informed the objections officer and the Tribunal, that the care change actually occurred in January 2020, as had previously been recorded, not from January 2019.
On 17 July 2023 Child Support made a decision accepting that care changed from 12 January 2019 according to the 10 May 2023 contact. This gave rise to a great deal of confusion and uncertainty and caused misunderstandings among Child Support officers and the parents. It was later summarised by Child Support that “a care determination has been made out of order...in running this new care decision this has resulted in a terminating event…” (T208).
Child Support then carried out a series of investigations into the case and appears to have made a further decision on 13 November 2023 in an attempt to rectify problems that arose due to accepting the care change as per Mr Auster’s 10 May 2023 contact.
Mr Auster’s contact of 10 May 2023 was treated by Child Support as a new care change notification, when in my view in context, it should be construed as an objection to the primary decision made on 29 January 2020.
As a result of Child Support treating the contact of 10 May 2023 as another primary decision, the administration of child support assessment fundamentally miscarried from that point onwards.
For the purposes of this review, the Tribunal is treating Mr Auster’s contact of 10 May 2023 as an objection to the care determination decision dated 29 January 2020 that had effect from 4 January 2020. The Tribunal is reviewing this decision.
In the Tribunal's view, when Mr Auster contacted on 10 May 2023, he was expressing disagreement with a decision that had already been made (albeit erroneously) by disagreeing with a key component of that decision, namely the date of revocation. With some benefit of hindsight therefore, the Tribunal views the correct construction of the contact as an objection to an existing care percentage determination decision, and not the notification of a new one. The fact that Child Support treated the contact as a new advice of a change of care has confused and complicated matters greatly, but the Tribunal is satisfied that the contact properly construed was an objection to the primary decision of 29 January 2020.
On 5 July 2024 Mr Auster lodged his application for review by the Tribunal.
The Tribunal hearing took place on 27 September 2024. Mr Auster participated in the hearing by conference telephone and gave sworn evidence. Miss Norris was unable to be contacted by telephone despite numerous attempts made over a period of 20 minutes. The Tribunal was satisfied that Miss Norris was given adequate notice of the hearing and had not contacted the Tribunal to advise of her inability to attend or to seek to have the matter rescheduled. Therefore, the Tribunal proceeded in Miss Norris’s absence. The Child Support Registrar did not participate in the hearing and did not attend.
Prior to the hearing, the Tribunal was provided with a bundle of documents from Child Support numbered 1–413: copies of these documents were sent to Mr Auster and Miss Norris in advance of the hearing.
A detailed chronology is outlined at the end of these reasons to demonstrate the widespread confusion that has occurred in this matter. As this review was complicated and complex, there has been a delay in providing the Tribunal’s decision and reasons for decision.
CONSIDERATION
The statutory provisions relevant to this review are contained in:
· the Child Support (Assessment) Act 1989 (the Assessment Act), and
· the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).
The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage care determinations which are then used as part of the child support formula to assess child support rates.
The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, while it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
In making its decision, and in determining the approach taken by the Tribunal, particular regard was had to the objectives of the Tribunal as stated in the Administrative Review Tribunal Act 2024 (the ART Act). Subsection 9(a) of the ART Act states that the Tribunal must pursue the objective of providing “an independent mechanism of review” that is “fair and just”. By reviewing the objection dated 10 May 2023, the Tribunal is confident that it is achieving this objective of the Tribunal to provide a decision that is “fair and just” to the parties in this matter.
ISSUES
The issues for the Tribunal to determine are:
· should the existing care percentage determinations as in place from 4 January 2020 be revoked? If so,
· what is the care percentage change and what is the date of effect?
Should the existing care percentage determinations be revoked?
Since 10 June 2014 a child support assessment had been in place. The initial care percentage determinations were recorded as 100% care to Mr Auster and 0% care for Miss Norris.
On 29 January 2020 a care percentage decision was made whereby Mr Auster had 11% care percentage and Miss Norris had 89% care percentage with effect from 4 January 2020. Child Support notified this decision to both parents by letters dated 29 January 2020 (T12–15).
Pursuant to section 54F of the Assessment Act, the pre-existing care percentage determinations of 100% for Mr Auster and 0% for Miss Norris were revoked on 3 January 2020, being the day before the change of care day. The new care percentage determinations were in effect from 4 November 2020.
On 10 May 2023 Mr Auster made an objection to the care decision of 29 January 2020.
The issue to be determined by the Tribunal is therefore whether the existing care percentage determinations in place from 4 January 2020 should be revoked and if so what the date of effect is.
Care percentage determinations
Sections 49 and 50 of the Assessment Act require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked.
The term “care” is not defined in child support legislation.
As regards to determining a parent’s percentage of care, section 50 of the Assessment Act requires the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision-maker’s task is to determine care percentages calculated having regard to the actual care a person has had, or is likely to have, during a care period. The Tribunal’s task on review is the same.
Section 54A of the Assessment Act provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person. Relevant considerations, therefore, are both the care likely to occur and, where relevant, the actual care that has occurred.
According to section 54F of the Assessment Act the Registrar must revoke an existing care percentage determination for a child made under section 49 or 50 of the Assessment Act if, among other requirements, the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care and the Registrar is satisfied that a new care percentage determination would change the cost percentage.
The actual care percentage is not in issue in this matter, rather it is the date that the care changed that is critical and needs determining.
The Tribunal notes that, as can be seen from the table below, the care percentages of either 89% or 100% for Miss Norris and either 11% or 0% for Mr Auster do not give rise to any changes for cost percentage applications for the purposes of determining child support. Therefore, these percentage differences are largely ignored in these reasons: section 54H of the Assessment Act.
Section 55C of the Assessment Act contains a table that is used to work out a person’s cost percentage:
Cost percentages
Item
Column 1
Percentage of care
Column 2
Cost percentage
1
0 to less than 14%
Nil
2
14% to less than 35%
24%
3
35% to less than 48%
25% plus 2% for each percentage point over 35%
4
48% to 52%
50%
5
more than 52% to 65%
51% plus 2% for each percentage point over 53%
6
more than 65% to 86%
76%
7
more than 86% to 100%
100%
The parents dispute the date that the care percentage changed from 100% for Mr Auster to 89% (or 100%) for Miss Norris. Mr Auster claims the care change took place on 4 January 2020, however Miss Norris maintains that it took place on 12 January 2019.
The care percentage change was recorded as occurring on 12 January 2019 based on the evidence Child Support had at the time. This evidence initially came from Mr Auster, who now himself disputes this date as he says on 10 May 2023 he gave the incorrect year as 2019 instead of 2020.
The objections officer found that they were unable to reconcile the statements of the parents as to which date to accept. On 25 January 2024 the objections officer telephoned Miss Norris who maintained that she had the care of her son from 12 January 2019.
The objections officer relied on evidence from the school dated 29 November 2023 that stated [the child] was enrolled from 22 October 2018 to 10 February 2020 and it was recorded that he resided with his father for the entire period of his enrolment (T297). The objections officer noted that the date of 4 January 2020 was more accurate than 10 February 2020 and was satisfied that this was the case.
The Tribunal is also satisfied that 4 January 2020 is the correct date the care changed.
In reaching this conclusion the Tribunal relies on the letter from the school dated 29 November 2023, as well as additional evidence that had been before the objections officer.
The Tribunal relies on an Occupational Therapy Assessment Report dated 20 October 2019 for an assessment conducted on 18 August 2019 in which [the child]’s father and step-mother were interviewed. (T293) The report, where the address of [the child] is redacted, states “[The child] seeks a lot of attention at home and will become upset or hostile with his brother or step-mother if ….”
Further, Mr Auster submitted a Patient History Statement for [the child] that sets out medical treatment for [the child] over a period from 23 May 2018 to 20 August 2019 (T298) and also a Patient History form for scripts dispensed between 21 October 2016 and 22 November 2019 (T299). This evidence suggests [the child] remained in his father’s care beyond January 2019 and that this care was continuing in November 2019.
The Tribunal also relies on the much earlier and contemporaneous notification made on 22 January 2020 that from 4 January 2020 Mr Auster had 11% care and Miss Norris had 89% care of [the child] (T11, T17).
Miss Norris did not submit any contradictory documentary evidence to the objections officer. Miss Norris did not attend the Tribunal hearing or submit any further evidence to the Tribunal.
On reviewing the evidence, including the oral testimony of Mr Auster at the hearing, for the reasons above, the Tribunal is satisfied that the care change occurred on 4 January 2020 and not on 12 January 2019.
The objection of 10 May 2023 (as so construed by the Tribunal) to revoke the care percentage determinations in place from 4 January 2020 is therefore disallowed.
What is the care percentage change and what is the date of effect?
As the Tribunal has disallowed the objection of 10 May 2023, there is no need for the Tribunal to consider any date-of-effect provisions in the legislation. The Tribunal also does not need to examine whether special circumstances arose in relation to section 87AA of the Registration and Collection Act.
These issues are addressed in the objection decision but are not relevant to the Tribunal’s decision in light of the objection being disallowed.
Chronology
The following chronology is largely historical, but it demonstrates to the parties and Child Support the state of confusion and complexity caused by Child Support accepting the care change having occurred from 12 January 2019.
10 June 2014
· Child support was calculated on the basis of 100% care of [the child] to Mr Auster and 0% care to Miss Norris.
22 January 2020
· A notification was made of a care percentage change of 11% care to Mr Auster and 89% care to Miss Norris effective from 4 January 2020.
29 January 2020
· Child Support made a decision to accept the care change of 11% care to Mr Auster and 89% care to Miss Norris effective from 4 January 2020.
· Child Support sent letters and accompanying child support assessments to the parents informing them of this care percentage change (T12–28).
10 May 2023
· Mr Auster made what is recorded as an “online care advice” by stating that the care of [the child] changed on 12 January 2019, such that Miss Norris had 100% care of [the child] and he had 0% care (T167).
· Mr Auster’s later evidence is that he mistakenly gave the incorrect date of care change as 12 January 2019, and it should have been 4 January 2020, as was already in place.
26 June 2023
· Child Support telephoned Miss Norris who confirmed the care change of 100% to her and 0% to Mr Auster from 12 January 2019.
· Miss Norris was advised “the agency will make a decision to accept the care as they have agreed with the details supplied by Mr Auster” (Mr Auster) (T182).
· Child Support sent letters to the parents advising of a change in child support
(T168–169). Four child support assessments were attached for the periods 24 January 2023 to 30 January 2023, 31 January 2023 to 19 June 2023, 20 June 2023 to 30 October 2023 and 31 October 2023 to 31 October 2023 each with Miss Norris’s care percentage as 89% and Mr Auster’s care percentage as 11% (T170–181).17 July 2023
· Child Support accepted the change in care “as both parties have agreed to the change in care” (T182).
· As this care decision pre-dated the current care already recorded for [the child] from 4 January 2020, some unintended results occurred. The case where Miss Norris was the paying parent was closed from 11 January 2019 and the case where Miss Norris was the receiving parent, which should have been active, ended from 9 June 2014. (T198).
· Two different letters were sent from Child Support to both parents.
· One letter informed the parents that a new child assessment calculation where Miss Norris’s care percentage was 72% and Mr Auster’s cost percentage was 28% for the assessment period 12 May 2014 to 9 June 2014 (T183–189). This is clearly incorrect.
· Another letter was sent to both parents entitled “Your child support has changed” (T190–193). It advised of a change in child support for the period 1 September 2018 to 11 January 2019. It advised each parent that their child support amount is $0.00 per fortnight. It stated that Miss Norris had overpaid Mr Auster $380.02 in child support. This letter contained information about the objection rights to this decision.
· In essence, as the Tribunal understands it, it is Mr Auster’s understanding of having to repay $380.02 to Miss Norris that led to his objection application.
· The “child support assessment” issued on 17 July 2023 for the period 1 September 2018 to 11 January 2019 attached to the second letter had the care percentages as Mr Auster 100% and Miss Norris 0%. The assessment stated that the “Final annual Child Support Amount” was “Miss Norris is to pay $427 to Mr Auster for the support of the children in this assessment.” (T194–196).
18 July 2023
· Mr Auster telephoned Child Support to query the care arrangement. He was advised that a care arrangement problem had occurred. The nature of the problem was explained to Mr Auster as follows: “I have identified that the care arrangement recorded and changed for [the child] on 17 July 2023 has varied the assessment for case: 383001635 for the period 12 January 2019 to 30 November 2019 and refused the assessment for case: 96767880 from 26 October 2012.” Mr Auster was informed by the Child Support officer that “this issue will need to be investigated and resolved” (T197).
11 August 2023
· Miss Norris telephoned Child Support to seek clarification of the care arrangements (T198–199).
· Miss Norris was advised that the 17 July 2023 decision resulted in the case 383001635 where she is the paying parent being closed from 11 January 2019 and the case 96767880 where she is the receiving parent, which should be active, ending from 9 June 2014.
· She was told the matter would be escalated to a senior service officer to review and “we may need to liaise with Centrelink to determine the correct date of notification.”
2 November 2023
· Mr Auster telephoned Child Support and was told “there is case officer who is working on (the) case in the background which I can’t comment on.”
7 November 2023
· The case is referred to [a manager] for analysis. The Child Support notes refer to a “COMPLEX factual error” being made. Action taken to “prevent worsening the error” is that the matter is “escalated to [a manager] for potential invalid decision to be recognised” (T210).
· It would appear from the Tribunal papers that due to the complexities that resulted from the 10 May 2023 contact and decision of 17 July 2023, Child Support attempts to sort out the misunderstandings by making a subsequent decision on 13 November 2023.
13 November 2023
· Child Support unsuccessfully attempted to telephone both parents to make further enquiries for their investigation. Child Support wanted the parties to clarify whether the change of 100% care percentage for Miss Norris occurred in January 2019, as per the 10 May 2023 contact, or in January 2020, when it had been previously notified to Centrelink.
· Mr Auster contacted Child Support by telephone. The notes of the conversation are unclear as they state: “Customer informed that the care should be displaying from January 2019 is [sic] when this was confirmed” (T207).
· Child Support notes in the hearing papers T208–210 entitled “Error Correction Submission” contain an excellent summary of all the errors that seem to have occurred. The summary outlines the sequence of events of the case and the consequences these had. They contain a “Recommended Decision that this care decision be made invalid as this new care … would not change liability rates of the case as (RP) Mr Auster still would have below regular care.”
14 November 2023
· Child Support notes: “Date to look at backdating via error correction: 17/7/23.”
· Child Support unsuccessfully attempted to contact the parents by telephone to “discuss error correction” that:
after careful analysis of all events we have determined there is no error that has occurred here. The care information that we initially thought was supplied by FAO was not and in fact our care. This is care Mr Auster reported on 10/5/2023 the service officer incorrectly reflected this as FAO care” (T211, 213).
15 November 2023
· Letters were sent to the parents entitled “Acceptance of Your Child Support Assessment Application” which was stated to cover the period 22 October 2023 to 21 January 2025 (T220–222).
· A total of 19 separate child support assessment notices, all issued on 15 November 2023, were sent to the parents covering periods from 22 January 2020 to 21 January 2025. Each child support assessment notes Miss Norris’s care percentage is 89% and Mr Auster’s care percentage is 11% (T223–279).
27 November 2023
· Mr Auster lodged his objection of the Child Support decision reflecting care of [the child] as 100% to Miss Norris from 12 January 2019.
· Letter sent to Miss Norris stating that Mr Auster had lodged an objection to the Child Support decision of 17 July 2023 (T290).
2 February 2024
· Objection decision reached.
· The Tribunal observes that Child Support, in the heading of its 2 February 2024 objection decision, refers to the original decision as having been made on 13 November 2023, however it is clear in its reasons that it was treating the decision made on 17 July 2023 as the reviewable decision.
· The objection decision was allowed in part, determining the care percentage for [the child] as 100% to Miss Norris from 4 January 2020, but the date of effect from 27 November 2023.
· The objections officer found that while the care percentage changed from 4 January 2020, it determined that Mr Auster’s objection made on 27 November 2023 was more than 28 days from the original decision made on 17 July 2023.
· The objections officer considered Mr Auster’s reasons for not lodging his objection within 28 days of the original decision and found that they did not fit the criteria for special circumstances under subsection 87AA(2) of the Registration and Collection Act, therefore the care percentage was only found to take effect from 27 November 2023, being the date Mr Auster sought review (T6).
· The Tribunal notes that if the original decision was indeed 13 November 2023 as Child Support states in the letter to the parents (T3) and in the objection decision itself (T4), then Mr Auster’s objection lodged on 27 November 2023 was clearly within 28 days. It is on this basis that the Tribunal notes that Child Support must have used the decision on 17 July 2023 as the operative decision (see also T290).
· The objection decision further notes that although it found that the care percentages were 100% and 0% effective from 27 November 2023, the care percentages of 89% for Miss Norris and 11% for Mr Auster would remain because there would be no changes to the cost percentage for [the child]. The objection decision explained that under section 54H of the Assessment Act, a new determination is not required if there would be no change to the assessment rate (T7).
18 March 2024
· Child Support sends letters to the parents advising them of the outcome of the objection decision and enclosing the Details of the Objection Decision (T3–7).
5 July 2024
· Mr Auster filed an application for review by the Tribunal.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision disallowing the objection dated 10 May 2023.
| Date of hearing: | 27 September 2024 |
| Representative for the Applicant: | Self-Represented |
| Representative for the Other party: | No appearance by the Other party |
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