MacCauley and Shersby (Child support)

[2022] AATA 3959

MacCauley and Shersby (Child support) [2022] AATA 3959 (27 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC024077

APPLICANT:  Mr MacCauley

OTHER PARTIES:  Child Support Registrar

Ms Shersby

TRIBUNAL:Member M Douglas

DECISION DATE:  27 October 2022

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 the Registrar amend under section 75 of the Child Support (Assessment) Act 1989 the administrative assessment of child support for [the child] made on 19 March 2020 to correct the error in the assessment arising from Mr MacCauley’s relevant dependent child not being taken into account in the assessment.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether relevant dependent child should have been included from start of case – decision under review set aside and sent back with directions

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. Mr MacCauley and Ms Shersby are the parents of [the child].  On 5 March 2020 Ms Shersby applied to the “Child Support Smart Centres” for an administrative assessment of child support to be made for [the child].  The Tribunal understands that the Child Support Smart Centres is a section within Services Australia.  The Child Support Registrar acts through staff employed within Services Australia, to whom the Registrar has delegated the necessary powers to make decisions on her behalf. 

2. On 19 March 2020 Services Australia accepted Ms Shersby’s application for a child support assessment to be made for [the child]. That required Services Australia, in accordance with subsection 31(1) of the Child Support (Assessment) Act 1989 (the Act), to assess under Part 5 of the Act the annual rate of child support one parent was to pay the other for [the child] from the date upon which the application was made.  In short, it required Services Australia to issue an assessment of child support for [the child].

3. Broadly speaking, an assessment of child support is done in accordance with a formula prescribed under Part 5 of the Act.  The formula is applied to several variables to work out the amount of child support one parent pays the other.  Those variables include “a child support income amount for each parent” which is calculated in accordance with the method stipulated under section 41 of the Act.  Relevant to that calculation is whether a parent has a “relevant dependent child”.  If a parent does, then an amount that is calculated in accordance with section 46 is deducted for that child when calculating the parent’s child support income amount.

4. A relevant dependent child is a child under the age of 18 who is not a member of a couple and in regards to whom the parent has at least 35% care. 

5. The assessment that Services Australia made on 19 March 2020 for [the child] did not include a relevant dependent child for Mr MacCauley.  On 29 April 2022 Mr MacCauley contacted Services Australia and told them he had a relevant dependent child, namely [Child 2].  Mr MacCauley told Services Australia that [Child 2] had been in his care all the time since her mother died some years back. 

6. Services Australia then decided to include [Child 2] as Mr MacCauley’s relevant dependent child from 29 April 2022 only. 

7. On 11 May 2022 Mr MacCauley objected to Services Australia’s decision to include [Child 2] as a relevant dependent child from 29 April 2022, seeking that [Child 2] be included as a relevant dependent child from the commencement of the assessment of child support for [the child]. 

8. On 20 May 2022 Services Australia disallowed his objection.  Services Australia said in reasons it published for its decision that because Mr MacCauley had not advised it of [Child 2] being his relevant dependent until 29 April 2022 that, in accordance with subsection 73A(1) of the Act, Services Australia was only permitted to amend the assessment from the date it was notified of [Child 2] being his relevant dependent child.

9. On 14 June 2022 Mr MacCauley applied to the Tribunal for review of Services Australia’s decision disallowing his objection.  The Tribunal held a hearing of his application on 31 August 2022 at which time Mr MacCauley gave sworn evidence to the effect that [Child 2] was in his full-time care for many years before an assessment of child support was made for [the child].  He said at the hearing that he advised Centrelink of that so as to obtain a family tax benefit.  He said that he regularly thereafter informed Centrelink that he remained [Child 2]’s full-time carer because he had to advise Centrelink of the income he was earning so that it could determine the rate at which he was to be paid the family tax benefit.

10. The Tribunal decided at the end of hearing Mr MacCauley’s oral evidence on 31 August 2022 to adjourn the hearing to 11 October 2022 and direct that the Child Support Registrar provide specified documents to the Tribunal and to make submissions when the hearing resumed on 11 October 2022.

11. A document that Services Australia produced to the Tribunal in compliance with that direction included a screen shot from Services Australia’s IT platform titled “external information care – production”, the content of which revealed that the Family Assistance Office informed Services Australia on 9 March 2020 that [Child 2] had been in Mr MacCauley’s full-time care since 29 November 2015.  In other words, as at 19 March 2020 when Services Australia accepted Ms Shersby’s application for an assessment of child support to be made for [the child], and when Services Australia issued an assessment of child support for [the child], Services Australia was aware that [Child 2] was a relevant dependent child of Mr MacCauley.

12. The consequence of that information is that section 73A of the Act does not apply to this case because that section is only engaged when Services Australia is notified or becomes aware of a relevant dependent child after an assessment of child support has come into force. Services Australia when it issued the assessment of child support for [the child] on 19 March 2020 was aware of [Child 2] being Mr MacCauley’s relevant dependent child and ought to have deducted an amount calculated in accordance with section 46 of the Act when calculating Mr MacCauley’s child support income under section 41 of the Act. 

13. In short, Services Australia made an error with respect to the assessment of child support for [the child] when it issued the assessment on 19 March 2020, by not taking into account Mr MacCauley’s relevant dependent child despite it being aware from 9 March 2020 of Mr MacCauley’s relevant dependent child.

14. What all this means is that the primary decision Services Australia made following Mr MacCauley contacting Services Australia on 29 April 2022 to advise them of [Child 2] was wrong in that [Child 2] ought to have been recognised as a relevant dependent child at the time the assessment for [the child] was initially made on 19 March 2020. Rather than making a decision under section 73A of the Act, because that provision did not apply, Services Australia ought to have made a decision under section 75 of the Act to amend the assessment made for [the child] on 19 March 2020 to correct the error of Mr MacCauley’s relevant dependent child not being taken into account.

15. The Tribunal shall therefore set aside the objection decision of Services Australia and remit the matter to Services Australia for reconsideration in accordance with the direction that the Registrar amend the assessment of child support for [the child] that was made on 19 March 2020 so as to correct that error of not taking into account Mr MacCauley’s relevant dependent child.

16. In conclusion the Tribunal notes that the hearing it conducted of Mr MacCauley’s application for review was done using Microsoft Teams.  The Tribunal on both occasions attempted to connect Ms Shersby to the Tribunal but used an incorrect number to do so.  Consequently Ms Shersby did not participate in those hearings.  When the Tribunal’s error with respect to Ms Shersby’s telephone number was discovered, Ms Shersby was contacted by the Tribunal’s Registry staff and advised that the hearing would be rescheduled if she wished so that she could be heard with respect to Mr MacCauley’s application.  She declined that offer but instead sent in a brief written submission with respect to the matter, which the Tribunal has taken into account.

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 the Registrar amend under section 75 of the Child Support (Assessment) Act 1989 the administrative assessment of child support for [the child] made on 19 March 2020 to correct the error in the assessment arising from Mr MacCauley’s relevant dependent child not being taken into account in the assessment.