Marnham and Child Support Registrar (Child support)

[2021] AATA 1691

Marnham and Child Support Registrar (Child support) [2021] AATA 1691 (22 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC020403

APPLICANT:  Mr Marnham

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member R King

DECISION DATE:  22 March 2021

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the care percentages – jurisdiction of tribunal – decision under review affirmed – date of effect of the tribunal’s decision – late application for review – no special circumstances prevented the application for review being lodged in time – no determination under subsection 95N(2)

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. Mr Marnham and [Ms A] are the parents of [Child 1], who is currently aged 13 years. Under an administrative assessment, the Child Support Agency (CSA) has been collecting child support from Mr Marnham for payment to [Ms A]. Prior to 6 December 2017, [Child 1]’s care was recorded as 49% with Mr Marnham and 51% with [Ms A].

2. On 6 December 2017, Mr Marnham contacted the CSA and advised that he had been providing a higher level of care of [Child 1] since at least 20 March 2016. After taking evidence from both parents, the CSA decided, on 8 February 2018, not to change the existing care determination for [Child 1].

3. On 10 January 2020 (more than 28 days after receiving notification that the care percentages for [Child 1] remained the same), Mr Marnham objected to this care percentage decision.

4. On 4 May 2020, an objections officer allowed Mr Marnham’s objection. The objections officer found that evidence provided by Mr Marnham in the form of care diary dates and a third party statement established that he had 83 nights of [Child 1]’s care during the 119 nights between January and April 2020. This meant that he had 69% of [Child 1]’s care. The objections officer found that this pattern of care applied from 3 January 2020 but could only have effect from 10 January 2020 (the date Mr Marnham objected to the decision made on 8 February 2018), as there were no special circumstances that prevented him from lodging an objection within 28 days of the original decision.

5. On 7 December 2020 (more than 28 days after receiving the objection decision), Mr Marnham applied to the tribunal for review. [Ms A] did not apply to be added as a party to Mr Marnham’s application.

6. The tribunal conducted a hearing on 22 March 2021. Mr Marnham participated in the hearing telephone and provided sworn evidence..

CONSIDERATION

1. Mr Marnham told the tribunal that he welcomed the decision of the objection officer but believes that it should have applied from a much earlier date, as he had been providing most of [Child 1]’s care since before he notified the CSA, in December 2017. Mr Marnham said that it was unfair that he had still been assessed as owing child support in the sum of approximately $3,000 even though at all times he had been the parent providing the majority of the care. This was unacceptable, especially as he was now dependent on jobkeeper as a result of the impact of the COVID-19 pandemic on his employment. He said that he was particularly unhappy that the CSA had taken this amount from his tax refund entitlement and paid it to [Ms A], even though they had assured him that they would await the decision of the tribunal before doing this.

Application of the law

The jurisdiction of the tribunal

1. Under section 89 of the Child Support (Registration and Collection) Act 1988 (the R&C Act), a decision regarding care percentage can only be reviewed by the tribunal if it is “a decision on an objection to a decision (the original decision) of the Registrar).” This means that the jurisdiction of this tribunal is limited in this matter to the decision made by the objection officer in respect of the original decision.

2. In this case, the original decision was a decision made on 8 February 2018 not to change the care percentage for [Child 1]. 

3. The tribunal is of the view that the objections officer made two substantially independent decisions on 4 May 2020. The first was a decision affirming the original decision to maintain the care percentage for [Child 1] as 49% with Mr Marnham and 51% with [Ms A] from 6 December 2017. The objections officer then made findings to the effect that Mr Marnham had 69% of [Child 1]’s care from 3 January 2020. These findings allowed the CSA to determine a new care percentage with effect from that date.

4. Thus, while the objections officer stated that the objection had been allowed, the tribunal is of the view that this was an incorrect characterisation of the totality of the decision. The correct characterisation is that the objection was disallowed and a new care determination was made for a more recent period of care.

5. The tribunal is not satisfied that the decision flowing from the new care determination, which was conveyed to Mr Marnham in a notice of child support assessment dated 5 May 2020 (folio 17–18 of the hearing papers), met the requirements of section 89 of the R&C Act. Rather it was a new (original decision) of the Registrar that had not been reviewed.

6. It follows that the tribunal has jurisdiction over the original decision of 8 February 2018 to not change the care percentage for [Child 1] but not over the decision made on either 4 May 2020 or 5 May 2020 to change the care percentage such that Mr Marnham had 69% of [Child 1]’s care from 3 January 2020 and [Ms A] had 31% of her care from that date. If Mr Marnham wants this tribunal to review the latter decision, he must first ensure that it is internally reviewed by the CSA.

The care percentage for [Child 1] as at 8 February 2018

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the Child Support Agency for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA initially determined that Mr Marnham had 49% of the care of [Child 1] and [Ms A] had 51% of [Child 1]’s care.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, the original care percentage determination is revoked and a new care percentage determined that does correspond with the actual percentages of care provided by each parent.

4. The tribunal is satisfied, on the evidence before it, that Mr Marnham advised the CSA on 6 December 2017 that the amount of care he was providing [Child 1] had increased. The CSA was not satisfied that the evidence provided by both parties established a change of care percentage. On 8 February 2018, the CSA therefore declined to apply section 54F and the care percentages remained unchanged. When Mr Marnham objected to this decision, in January 2020, the objections officer reviewed the evidence originally considered by the CSA and reached the same conclusion about this evidence.

5. Mr Marnham submitted to the tribunal that the evidence regarding the level of care he provided in the first months of 2020 was equally applicable to the preceding years.  The tribunal does not accept that a pattern of care established for the first months of 2020 should necessarily overturn findings made by the CSA at the time of the original decision.  At that time, the CSA, after taking evidence from both parents, found that care of [Child 1] was shared equally by Mr Marnham and [Ms A]. 

6. The tribunal notes that Mr Marnham has not provided new evidence regarding the pattern of care for [Child 1] in late 2017 and early 2018. In the absence of new evidence relevant to this period the tribunal is not satisfied that there is a basis for overturning a care percentage decision that was made on the basis of evidence provided by both parents at the time.

7. Even if the tribunal was to accept Mr Marnham’s submission regarding the pattern of care in February 2018, there could be no practical effect. Mr Marnham did not apply to the tribunal for review of the decision made by the objections officer on 4 May 2020 until 7 December 2020. His evidence during the hearing is that the reason he did not make an earlier application to the tribunal was because it was not until he was notified that he had a child support debt that it became important to him to establish that he had a longstanding pattern of greater care than was recorded. Under section 95N of the R&C Act when a person seeks external review of a care percentage decision more than 28 days after receiving the objection decision, the date of effect of any change in care percentage is the date of application for external review, unless there were special circumstances that prevented the person from seeking external review within 28 days. In this case there was no special circumstance preventing Mr Marnham from seeking review within 28 days of receiving notification of the decision of the objection officer. He chose not to seek review because he did not consider the decision to be sufficiently consequential until he was notified that CSA planned to recover a child support debt. It follows that, if the tribunal decided to change the percentage of care as at 8 February 2018 (and it has not done so) the change would not have effect until 7 December 2020, by which time the care percentage was already changed.

DECISION

The tribunal affirms the decision under review.