Malone and Malone (Child support)

[2018] AATA 4515

Malone and Malone (Child support) [2018] AATA 4515 (6 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC014795

APPLICANT:  Ms Malone

OTHER PARTIES:  Child Support Registrar

Mr Malone

TRIBUNAL:Member S Letch

DECISION DATE:  06 November 2018

DECISION:

The Tribunal decides to:

(a)vary the care decision under review so that care for [Child 1], [Child 2] and [Child 3] is to be recorded as 75% to Ms Malone and 25% to Mr Malone from 5 April 2017, the day Ms Malone applied for a child support assessment; and

(b)affirm the decision not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989, resulting in the date of effect of the Tribunal’s decision in (a) being 22 May 2018, the day Mr Malone objected to the decision of 1 May 2017.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the pattern of care that the parents were likely to have from the start date of the assessment – decision under review varied

CHILD SUPPORT – date of effect of the objection decision – whether special circumstances prevented the person objecting within time – No special circumstances – decision under review affirmed

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

BACKGROUND

1. Ms Malone and Mr Malone are the parents of [Child 1], [Child 2] and [Child 3].

2. Ms Malone made an application for child support on 5 April 2017. On 1 May 2017, the Department of Human Services (“the Department”) decided to record care of the children as 90% to Ms Malone and 10% to Mr Malone. Ms Malone and Mr Malone briefly reconciled for the period 8 April 2017 to 26 June 2017 (notably less than a six month period, so it was not a “terminating event” for child support purposes).

3. On 22 May 2018, Mr Malone objected to the decision. On 1 August 2018, an objections officer decided that care for the children should be recorded as 51% to Ms Malone and 49% to Mr Malone from 4 April 2017; however, because Mr Malone had not objected within 28 days of the original decision, the decision could only take effect from 22 May 2018, the date he formally objected.

4. On 14 August 2018, Ms Malone applied to this Tribunal for review of the objections officer’s decision.

5. The Tribunal conducted a hearing on 5 November 2018. Mr Malone did not answer the Tribunal’s calls at, and around, the time of the hearing. Ms Malone participated in the hearing by conference by telephone, and gave sworn evidence.

CONSIDERATION

1. Ms Malone told the Tribunal that she and Malone had separated at the time of her application for child support on 5 April 2017; they remained “under one roof”. They decided to reconcile on 8 April 2017. Mr Malone’s income (as [occupation]) was paid into a joint bank account; part of the terms of the reconciliation was that he was able to retain a small sum himself for his own discretionary expenditure. Ms Malone was responsible for meeting all the expenses for the children and running the household finances. Mr Malone would regularly do shift work and would regularly sleep during the day. Ms Malone worked a normal “8:30 to 5:00” roster with Wednesdays off (she said she would finish early on Tuesdays to attend to a school extracurricular activity). She was primarily responsible for caring for the children, including school and child care drop-offs and pick-ups, and preparing meals and lunches. Mr Malone would do drop-offs and pick-ups when his shift work permitted that to happen.

2. Ms Malone told the Tribunal that when they decided to separate on 26 June 2017, Mr Malone no longer directed his income to a joint account. They used the child support website to work out how much Mr Malone was to transfer to Malone for child support, as well as additional sums to continue to meet joint debts. Ms Malone said the property settlement has now been finalised.

3. Ms Malone disputed Mr Malone’s assertion to the Department that he had not received Departmental letters. She nominated the former matrimonial home as her and Mr Malone’s home addresses for correspondence; she received all her letters. She sees no reason that Mr Malone would not have received his correspondence at the same address.

4. Ms Malone told the Tribunal that there was “no way” care was as high as “50/50”. At its highest, Ms Malone estimated Mr Malone would have had about 25% care. Ms Malone said Mr Malone had travelled overseas for around a month in October/November 2017 (after they had separated again). They had intended for Malone to have two nights a fortnight and half the school holidays; since, Ms Malone said that it has “not worked out that way”, with Mr Malone having less care as a result of his work arrangements (the Tribunal advised Ms Malone during the hearing it was concerned with how care should have been recorded as of 5 April 2017; later changes in care are subject of separate notifications and separate decisions).

5. In the Tribunal’s assessment, on the evidence available to it, the Tribunal is not satisfied the care was being shared equally from 5 April 2017. It appeared the care being provided by Mr Malone from 5 April 2017 (when separated under one roof) was not materially distinguishable from the day-to-day care arrangements when Ms Malone and Mr Malone had reconciled for the period 8 April 2017 to 26 June 2017.

6. Ms Malone’s estimate of the care being provided by Mr Malone was, at its highest, 25%. It appeared from Ms Malone’s evidence about Mr Malone’s involvement that Mr Malone’s care was at least at the 14% level.[1]

   [1] The Tribunal observes that a person’s “cost percentage” (which affects the child support formula) is 0% in the care range of 0% to less than 14%; in the range of 14% to less than 35%, the cost percentage is 24%. In other words, whether care is recorded as 14% or 25%, child support liability will be the same.

7. In the Tribunal’s assessment, the best evidence of Mr Malone’s care is Ms Malone’s estimated 25% care.

8. The Tribunal will determine that, from the day of Ms Malone’s application for a child support assessment, care for the children should be recorded as 75% to Ms Malone and 25% to Mr Malone (replacing the “90/10” determination in Ms Malone’s favour).

What is the date of effect of the decision? 

1. Mr Malone did not object to the original decision of 1 May 2017 until 22 May 2018, more than 28 days after the tribunal is satisfied he was notified of the decision. 

2. The significance of Mr Malone objecting outside the 28 day period would be that any new determination made as a result of the objection process would take effect, under section 87AA of the Child Support (Registration and Collection) Act 1989, from the date of the objection unless special circumstances existed.[2] Further, this Tribunal may exercise only the powers and discretions conferred on the Child Support Registrar on objection (under subsection 43(1) of the Administrative Appeals Tribunal Act1975). In that case, the Tribunal’s decision could take effect only from the date of the objection unless special circumstances existed which prevented Mr Malone from objecting within 28 days.

   [2] A decision of the Registrar to make a determination under subsection 87AA(2) or not to make such a determination is not an objection decision but a primary decision even though it is made by an objections officer. A person affected by it may apply to the Tribunal for AAT first review.

3. Mr Malone did not participate in the hearing. The Tribunal accepted Ms Malone’s evidence that the Department had been notified that Mr Malone’s address was the same address as Ms Malone’s (the former matrimonial home). Ms Malone received her correspondence; the Tribunal finds it very likely Mr Malone received his correspondence and was properly notified of the original decision.  

4. The Tribunal is not satisfied there were special circumstances which prevented a proper objection being made by Mr Malone within 28 days. He was not “prevented” from objecting in time. The Tribunal finds no proper basis to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989.  The effect of the Tribunal’s decision to vary the recorded care will be 22 May 2018.

5. As the Tribunal has reached a different conclusion to the objections officer, the decision under review will be varied. 

DECISION

The Tribunal decides to:

(a)vary the care decision under review so that care for [Child 1], [Child 2] and [Child 3] is to be recorded as 75% to Ms Malone and 25% to Mr Malone from 5 April 2017, the day Ms Malone applied for a child support assessment; and

(b)affirm the decision not to make a determination under section 87AA of the Child Support (Registration and Collection) Act 1989, resulting in the date of effect of the Tribunal’s decision in (a) being 22 May 2018, the day Mr Malone objected to the decision of 1 May 2017.