Horowitz and Burgess (Child support)

[2018] AATA 5055

Horowitz and Burgess (Child support) [2018] AATA 5055 (29 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC015268

APPLICANT:  Ms Horowitz

OTHER PARTIES:  Child Support Registrar

Mr Burgess

TRIBUNAL:Deputy President J Walsh, Member P Sperling PSM

DECISION DATE:  29 November 2018

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that, on 21 March 2018, Ms Horowitz objected to the care percentage decision dated 17 March 2018.

CATCHWORDS

CHILD SUPPORT – date of effect determination – whether objection to care percentage decision lodged within 28 days from date notice of decision given – whether telephone contact within 28 days an objection – “disagreement” with objection decision expressed – decision under review set aside and matter remitted with direction

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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

1. The applicant mother seeks review in respect of an objection decision which had two components: a decision to assess care percentages for the parents’ children of 63% to her and 37% to the father; and a decision that these care percentages should have effect in the child support assessment from 30 July 2018. This latter decision was based on the objections officer’s view that the mother had not objected to the original care percentage decision dated 17 March 2018 until 30 July 2018 and a finding under section 87AA of the Child Support (Registration and Collection) Act 1988 that there were no special circumstances which had prevented her from objecting within 28 days of service of notice of the original decision. It is only the latter date of effect decision that the mother seeks to have the Tribunal consider; it follows we are not concerned with the care percentage decision itself.

2. At hearing, the mother’s case was simply stated. Soon after the original decision was made, she contacted the CSA and advised she disagreed with the care percentage assessment made. She understood her contact would be treated as an objection. However, it turned out the CSA did not proceed on that basis. She again raised the matter on 30 July 2018 and this contact was then treated as her formal objection. The father’s argument supported the CSA’s date of effect decision.

3. The material before us included a record of a file note dated 21 March 2018 which confirms the mother then disputed the recently made care percentage decision.       

4. Pursuant to section 80A of the Act, the mother was entitled to object to the care percentage decision of 17 March 2018. Section 84 provides the grounds relied upon must be provided. Was her contact on 21 March 2018 sufficient to constitute an objection?

5. The terms “object” and “objection” are not defined in the Act. It is therefore appropriate to give them their usual meaning. The word “object” can be either a noun or a verb, depending on the context. Relevantly here, the Macquarie Dictionary provides that “object” as a verb means “to express disapproval”. We considered it clear enough that in her contact with the CSA on 21 March 2018, the mother did express her disapproval with the care percentage decision of 17 March 2018; she plainly indicated she disputed it. She also explained the factual basis upon which she asserted the care percentage decision was incorrect. In context, this was sufficient to constitute an objection to the care percentage decision which had been made.

6. It follows the objection decision here proceeds on a wrong basis, relevantly that the mother was late in objecting. Strictly, the decision under review before us is the section 87AA decision not to find special circumstances prevented her from objecting within 28 days of being served with notice of the original decision. Ordinarily, the Tribunal’s powers in reviewing a decision of that kind is limited to either finding there were or were not special circumstances which prevented a timely objection. Formally, the Tribunal would ordinarily make or refuse to make a decision under subsection 87AA(2).

7. However, that approach does not, in terms, adequately deal with the circumstances we have accepted. In our view, it is not open to us to formally decide that the mother objected on 21 March 2018. It is therefore appropriate to remit the matter to the CSA based on a finding to that effect, so that the CSA can reconsider the date of effect issue on the proper basis.         

DECISION

The decision under review is set aside and the matter is remitted to the Child Support Registrar for reconsideration in accordance with the direction that, on 21 March 2018, Ms Horowitz objected to the care percentage decision dated 17 March 2018.