Caba and Child Support Registrar (Child support)

Caba and Child Support Registrar (Child support) [2020] AATA 4917 (6 October 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/BC019679
APPLICANT:  Ms Caba
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Member M Douglas
DECISION DATE:  6 October 2020
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

Pursuant to subsection 50(2) of the Child Support (Assessment) Act 1989, Ms Caba’s percentage of care for all children is 100%.
Pursuant to subsection 49(2) of the Child Support (Assessment) Act 1989, Mr [A]’ percentage of care for all children is 0%.
The Tribunal otherwise orders pursuant to subsection 43(6) of the Administrative Appeals Tribunal Act 1975 that the date of effect of the Tribunal’s decision at 1 and 2 above is 20 December 2019.

For the sake of clarity, the Tribunal notes that the above decision does not affect the several care percentages decisions that the Department of Human Services/Services Australia made regarding changes in the pattern of care of the children that were notified as having occurred subsequent to the original decision made on 1 April 2011.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – late objection – date of effect of the Tribunal’s decision - 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

The Tribunal is reviewing a decision dated 20 July 2020 to disallow an objection Ms Caba lodged to a determination of her and Mr [A]’ percentages of care for their four children. A delegate of the Child Support Registrar made the determination on 1 April 2011. Ms Caba lodged her objection on 20 December 2019.
The Tribunal observes that in accordance with subsection 30(1) of the Administrative Appeals Tribunal Act1975 (the AAT Act), the parties to proceedings in the Tribunal include the party who is entitled to apply for review of a decision and has duly applied for review, which in this case is Ms Caba, and the person who made the decision, which in this case is the Registrar. The Tribunal notes that the Registrar acts through staff employed by the government department known as Services Australia (previously called the Department of Human Services). A reference to Services Australia in this decision is to be read as a reference to the Registrar.
The Tribunal also observes that subsection 30(1) of the AAT Act allows a person to be a party to the proceedings if that person’s interests would be affected by the decision of the Tribunal and that person has applied under subsection 30(1A) to be a party and the Tribunal has accepted that application.
In this case, the Tribunal posted Mr [A] an invitation to apply to be a party to the proceedings. Mr [A] did not respond to that invitation. Accordingly, he is not a party to these proceedings and has not been heard by the Tribunal with respect to the Tribunal’s review of the objection decision.
The chronology relevant to the objection decision is as follows.
On 28 March 2011 Ms Caba applied to Services Australia for an administrative assessment of child support to be issued with respect to her and Mr [A]’ four children. Subsections 49(2) and 50(2) of the Child Support (Assessment) Act 1989 (the Act) required Services Australia thereupon to determine Ms Caba and Mr [A]’ percentages of care for their children.
In accordance with subsection 54K(1) of the Act where the Family Assistance Office has determined percentages of care under A NewTax System (Family Assistance) Act 1999 (the Family Assistance Act) then that determination has effect as if it were a determination of Services Australia under subsections 49(2) and 50(2) of the Act. Simply put in different words, any care percentage determinations the Family Assistance Office has made also become the care percentage determinations Services Australia must use in a child support assessment.
On 1 April 2011 the Family Assistance Office informed Services Australia that the Family Assistance Office had determined Ms Caba and Mr [A]’ percentage of care for the children to be, respectively, 86% and 14%. Hence, in accordance with subsection 54K(1), those percentages of care took effect as determinations Services Australia made under subsection 50(2) of the Act.
On 1 April 2011 Services Australia sent letters to both Ms Caba and Mr [A] advising them that it had accepted Ms Caba’s application for a child support assessment. It also attached to those letters a document titled “Your child support assessment”, also dated 1 April 2011. That document notified Ms Caba and Mr [A] of the child support that Mr [A] had been assessed as being liable to pay Ms Caba for their children and also notified them of the relevant details upon which Mr [A]’ liability had been calculated. Those details included their respective percentages of care for their children.
In both the letter that Services Australia posted to Ms Caba and Mr [A] on 1 April 2011 and attached document, they were advised that if they did not agree with the assessment they could object and seek a review of the decision.
As mentioned earlier, Ms Caba lodged an objection to the care percentages that Services Australia had notified her had been determined for her and Mr [A]’s children by its correspondence of 1 April 2011.
As indicated at the outset, Services Australia on 20 July 2020 disallowed Ms Caba’s objection and she then applied to the Tribunal for a review of that objection decision.
The Tribunal observes that in between Services Australia’s letter of 1 April 2011 and the time Ms Caba lodged her objection, she and Mr [A] had notified Services Australia of several subsequent changes to the pattern of care of their children and that Services Australia had made decisions on 23 September 2015, 24 March 2016 and 21 August 2019 varying the care percentages.

ISSUES

The issue the Tribunal must consider is, as at 1 April 2011, the actual care that Ms Caba and Mr [A] were likely to have of their children during the relevant care period.
A further issue also arises in this matter as a consequence of Ms Caba not lodging her objection to Services Australia’s decision of 1 April 2011 until 20 December 2019. As will be explained below, any decision of Services Australia on Ms Caba’s objection to change the care percentages could only be given effect from the date she lodged her objection unless there were special circumstances that prevented her from lodging her objection within 28 days of being notified of Services Australia’s original decision. Because of that, the Tribunal will also need to consider from what date any decision it makes varying the child support percentages should take effect.

CONSIDERATION

The Tribunal notes that because the decision of the Family Assistance Office with respect to Ms Caba and Mr [A]’s care percentages took effect as though it were a determination of Services Australia made under subsection 50(2) of the Act, Ms Caba was entitled to object to that decision under section 80A of the Child Support (Registration & Collection) Act 1988 (the R&C Act). Further, Services Australia when considering that objection was required to consider whether the care percentages that the Family Assistance Office had determined, and which it notified to Services Australia on 1 April 2011, were correct. This is because the determination of the Family Assistance Office took effect, in accordance with subsection 54K(1) of the Act, as though it were a determination of Services Australia under subsection 50(2) of the Act. That is confirmed by subsection 35U(1) of the Family Assistance Act which contemplates that Services Australia can vary on objection a care percentage determination that has effect pursuant to section 54K of the Act as a care percentage determination of Services Australia.
The Tribunal notes that that was not the approach taken by the officer who considered Ms Caba’s objection. That officer merely considered whether Services Australia had any discretion, with respect to its decision of 1 April 2011, other than to accept the care percentages that the Family Assistance Office had determined.
Ms Caba gave sworn evidence to the Tribunal, when it heard her application on 6 October 2020, that Mr [A] moved out of the former matrimonial home on 11 January 2011 after he had assaulted her. Thereafter, for many years he did not have any care of the children.
The Tribunal observes that in the papers that Services Australia provided to the Tribunal in accordance with its obligation under subsection 37(1) of the AAT Act there is recorded at page 23 a note an officer of Services Australia made on 7 April 2011 which reads “can also see that spoke with PP on Mon 01/04/2011 and he too confirmed care as being 100% with mum”. “PP” is an acronym for paying parent, that is Mr [A].
Further, the objection that Ms Caba lodged with Services Australia included a statutory declaration her mother made on 19 December 2019 in which Ms Caba’s mother declared that Ms Caba had “100% care of her children... between 28 March 2011 and 10 September 2015”. There was also a statutory declaration made by Dr [B] on 18 December 2019 in which Dr [B] declared that she was Ms Caba’s neighbour “for the period in question”. Dr [B] also said that the matters that Ms Caba had stated in her objection were true to the best of her knowledge. It is apparent from what Dr [B] said that she had read Ms Caba’s objection, in which Ms Caba clearly articulated that the children were in her full-time care from the date she and Mr [A] had separated.
Based on that evidence the Tribunal is satisfied that, as at 1 April 2011, it was likely that Ms Caba’s care of the children would be 100% and Mr [A]’s care of the children would be 0% for a care period of one year from the date upon which they separated.
Given that, the Tribunal must set aside the decision under review and substitute a decision that pursuant to subsection 50(2) of the Act Ms Caba’s percentage of care of the children was 100% and pursuant to subsection 49(2) of the Act Mr [A]’s percentage of care of the children was 0%. As earlier mentioned, that brings into consideration another issue which is the date upon which the Tribunal’s decision is to take effect.
Subsections 87AA(1) and (2) of the R&C Act together have the effect that if a person objects to a care percentage decision more than 28 days after being served with notice of it, then any decision of Services Australia on the objection that varies or substitutes the primary care percentage decision will only apply from the date the objection was made, unless there were special circumstances that prevented the person from lodging the objection within 28 days. If there were special circumstances, then Services Australia has a discretion to permit the varied or substituted decision to apply from a later date.
Ms Caba did not lodge her objection to the care percentage decision until more than eight years after she received notice of it. With respect to whether there were special circumstances that prevented her from lodging it within 28 days, Ms Caba’s evidence to the Tribunal was that she had been the victim of domestic violence not long before the time that she received notice of the decision. She said she was going through a lot at that time, having to care for four young children as well as working part time. She said she wasn’t diligent in reading all the “paper work” she was receiving. She said that she just left it to “child support” to get it right.
In the Tribunal’s view the circumstances Ms Caba has described would clearly have caused her distress, but they would not have prevented her from objecting to the decision. All she needed to do was to telephone Services Australia to inform it the care percentages were wrong and to object to the decision. Her circumstances were not such that they prevented her from doing that.
Even if the Tribunal is wrong with respect to that, then the circumstances Ms Caba described were still not such that they would have prevented her from lodging her objection for more than eight years. That is to say, if the Tribunal is wrong with its finding set out in the previous paragraph, and Ms Caba’s circumstances were such that they prevented her from lodging an objection within 28 days of receiving notice of the decision, then it seems to the Tribunal that she would have been able to lodge an objection by no later than September 2015, which is when Services Australia was subsequently notified of a later change in the care of the children.
Therefore, even if it be assumed that there were special circumstances that prevented Ms Caba from lodging her objection (which to repeat, is not the finding of the Tribunal), it seems to the Tribunal that had Services Australia made the correct decision on Ms Caba’s objection, that is to allow the objection and to substitute care percentage determinations of 100% to Ms Caba and 0% to Mr [A], the maximum time that Services Australia would have allowed Ms Caba under subsection 87AA(2) to lodge her objection would have been until September 2015. This is because by that time Ms Caba’s circumstances were such that she was able to discuss with Services Australia what the care arrangements for the children were. Further, Services Australia would have had to consider, when exercising its discretion under subsection 87AA(2), the effect on Mr [A] of an extension of time (see 4.1.8 of the Child Support Guide). The effect would have been that he would instantly be in arrears in his child support obligation from a period some years earlier. In those circumstances, and as said, the Tribunal considers that had Services Australia made the correct decision on Ms Caba’s objection, the maximum extension of time it would have allowed Ms Caba to lodge her objection would be September 2015. Because that date was also well before the date upon which she lodged her objection, the effect in practical terms would be no different. That is, there would be no change in the assessment of Mr [A]’s child support obligation.
In any event, as said, the Tribunal considers that Ms Caba’s circumstances were not such that they prevented her from lodging her objection within 28 days of receiving notice of it.
It seems to the Tribunal that Ms Caba ought not to be in any better position by virtue of the Tribunal now making its decision regarding the care percentages of Ms Caba and Mr [A] than the position in which she would otherwise have been had Services Australia made the correct decision on her objection. Any other result would defeat the purpose of subsection 87AA(2) of the R&C Act.
The Tribunal therefore “otherwise orders” pursuant to subsection 43(6) of the AAT Act that the date of effect of the Tribunal’s decision with respect to the care percentages for the children takes effect on 20 December 2019, which is the date upon which Ms Caba lodged her objection with Services Australia.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

Pursuant to subsection 50(2) of the Child Support (Assessment) Act 1989, Ms Caba’s percentage of care for all children is 100%.
Pursuant to subsection 49(2) of the Child Support (Assessment) Act 1989, Mr [A]’s percentage of care for all children is 0%.
The Tribunal otherwise orders pursuant to subsection 43(6) of the Administrative Appeals Tribunal Act 1975 that the date of effect of the Tribunal’s decision at 1 and 2 above is 20 December 2019.

[2020] AATA 4917

6 October 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Judicial Review