Massengill and Child Support Registrar (Child support)

[2021] AATA 2736

Massengill and Child Support Registrar (Child support) [2021] AATA 2736 (13 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC020844

APPLICANT:  Ms Massengill

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member A Byers

DECISION DATE:  13 May 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change of care on 19 March 2017. Accordingly, Ms Massengill continued to have 100% of [Child 1]’s care on and from this date.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – date of effect – late objection – 87AA – special circumstances found – 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

1. Ms Massengill and Mr [A] are the parents of [Child 1] and this matter relates to her care.  [Child 1]’s care is not regulated by a court order, parenting plan, or other written agreement between the parents.

2. On 19 March 2019 Mr [A] contacted the CSA to say that [Child 1] went to live with her grandmother around two years earlier and subsequently went to live with an aunt for around nine months.  At the time of contact the Child Support Agency (CSA) was calculating Mr [A]’ child support liability on the basis that Ms Massengill had 100% of [Child 1]’s care. 

1. After not hearing from Ms Massengill, on 23 April 2019 the CSA decided that, from 19 March 2017, both Mr [A] and Ms Massengill had 0% of [Child 1]’s care.  Based on this result, the CSA also decided there was a child support terminating event for [Child 1] from 19 March 2017.

2. On 3 May 2019 Ms Massengill contacted the CSA to advise [Child 1] had not lived with her (maternal) grandmother and, as advised to Centrelink, had only moved into the care of her aunt (Ms Massengill’s sister) in October 2018.

3. On 26 June 2019 Ms Massengill submitted a written statement with reasons challenging the CSA’s decision.  For some reason this was not treated as an objection.[1]  On 24 January 2020 Ms Massengill queried the progress of her objection.  However, Ms Massengill was transferred to Centrelink on the understanding she had sought review of a decision to raise family tax benefit debts resulting from the CSA’s care decision.

   [1] It appears plainly to have satisfied the requirements in sections 80 and 84 of the Child Support (Registration and Collection) Act 1988.

4. It appears from CSA records that Ms Massengill provided supporting documentation on 18 September 2020, including a statement from [Child 1]’s grandparents (Ms Massengill’s parents) to the effect that, although [Child 1] visited them, she never lived with them.  

5. According to the CSA, Ms Massengill then lodged an objection to its care decision on 28 September 2020.  After being contacted by the CSA, Centrelink advised that Ms Massengill did seek a review of her family tax benefit debts.  The debts were said to have increased after Centrelink received the CSA’s care decision.  A second review application apparently remained outstanding.

6. On 29 January 2021 an objections officer disallowed Ms Massengill’s objection.  According to the objections officer, neither parent had provided any evidence about the care situation and there was Centrelink “confirmation” of a change of care on 19 March 2017.  On this footing Mr [A]’s unsubstantiated claims were accepted.  It appears the objections officer must have oversighted the documentation Ms Massengill supplied on 18 September 2020.

7. Ms Massengill sought review of this decision by the Tribunal on 19 February 2021.  Mr [A] declined to be a party to the application.  As Ms Massengill had recently changed her mobile phone number and was having difficulty with her service provider, I was unable to contact her on the scheduled hearing day (13 May 2021).  However, as the subsection 37(1) documents provided by the CSA contain all the material needed to make an informed decision, Ms Massengill consented to a review without a hearing.[2]

   [2] In accordance with section 34J of the Administrative Appeals Tribunal Act1975.

10.  I accepted into evidence the CSA’s subsection 37(1) documents, comprising folios 1 to 103 (marked Exhibit 1).    

CONSIDERATION

11. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Child Support (Assessment) Act 1989.[3]  Section 49 applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care.  As noted, prior to Mr [A]’s contact on 23 September 2019 the care determinations (under sections 49 and 50) in place were that he had 0% and Ms Massengill 100% of [Child 1]’s care.   

[3] All further legislative references are to this Act unless otherwise stated.

12.  Before a determination under section 49 or 50 can be made, the care percentage determination in place for that person must be revoked.  A revocation under section 54F can occur only if the Registrar were to determine (under section 49 or 50) a different percentage of care and the person’s cost percentage would change as a result. 

13.  As noted, the objections officer accepted Mr [A]’s unsubstantiated claim that a change of care occurred around two years before his contact with the CSA on 19 March 2019.   Although, as noted, the objections officer appears to have been fortified in this approach by a Centrelink decision “confirming” there was a change of care on 19 March 2017, (as noted) according to Centrelink it raised increased family tax benefit debts based on the CSA’s care percentage decision.

14.  The position outlined by the Full Bench of the Federal Court in McDonald v Director-General Social Security [1984] FCA 57 is that (in the absence of statutory provisions to the contrary) there is no onus of proof in administrative law. However, a party asserting a claim (whilst addressing the requirements of a statutory provision) needs to ensure sufficient probative evidence is tabled to support the claim. Where the evidence tabled is insufficient for a decision-maker to establish on balance if the claim is made out, the decision-maker is to dismiss the claim.

15.  As Mr [A] has not provided a skerrick of evidence to support his claim regarding a change of care, his claim should have been dismissed.  I also draw an adverse inference from the fact Mr [A] declined to have his assertion tested before this Tribunal. 

16.  Although this would be sufficient to decide the matter in Ms Massengill’s favour, as noted she has also supplied supporting documentation, including a statement from her parents to the effect that [Child 1] has never lived with them.  There is no indication in Mr [A]’s contact with the CSA that he was referring to [Child 1]’s paternal grandparents.  As Mr [A] had no care of [Child 1], this possibility would be unlikely in any case.

17.  Accordingly, I am satisfied no change of care occurred on 19 March 2017.  The decision under review will therefore be set aside.

18.  As noted, the CSA decided the cessation of care by both parents gave rise to a child support terminating event on 19 March 2017.  I presume this was pursuant to subsection 12(2AA).  Section 74 then provides the CSA with a broad power to “take such action as is necessary to take account of the happening of the event or change of circumstances (whether by amending any administrative assessment or otherwise)”.  As there are no constraints on this power, the appropriate course (which the CSA followed) is to amend the administration assessment with effect from the date of the terminating event.

19.  Section 76 then requires the CSA to immediately give written notice of the assessment to the liable parent and the carer entitled to child support.  The CSA issued two notices to both parents on 23 April 2019.  One advised that the care percentage for each parent from 19 March 2017 for [Child 1] was 0%, which resulted in the child support assessment for [Child 1] being “suspended” from this date.  The other notice signalled that, from 19 March 2017, the child support assessment did not include [Child 1].

20. Accordingly, there are effectively two relevant operative decisions. The first is a care percentage decision and the second a decision that there was a terminating event. There are different statutory considerations for each decision where a person lodges an objection outside 28 days of notice. A decision that there is a terminating event would require a formal request for an extension of time under section 82 of the Child Support (Registration and Collection) Act 1988 (the R&C Act). A care percentage decision is separately dealt with in section 87AA of the R&C Act.

21. As the Tribunal’s power is essentially that of the CSA’s Registrar, the date of effect limitation in section 87AA of the R&C Act will bind the Tribunal. Essentially, where a person objects to a care percentage decision more than 28 days after receiving notice of the decision, a decision on review varying or setting aside that decision takes effect on the day the person lodged their objection. The period of 28 days can be extended where there are special circumstances that prevented the person from lodging the objection within 28 days.

22. I am satisfied Ms Massengill lodged an objection to the CSA’s care percentage decision on 26 June 2019. On this date Ms Massengill challenged the decision in writing in terms that met the requirements of sections 80 and 84 of the R&C Act. As the CSA decision notice was dated 23 April 2019, the objection was lodged outside 28 days of receipt.

23. However, Ms Massengill contacted the CSA on 3 May 2019 to challenge the care percentage decision and was not offered the CSA’s standard option of lodging an objection using a telephone record reduced to writing. I am satisfied this failure satisfies the requirements in section 87AA of the R&C Act and accordingly that the time for lodging an objection should be extended to 26 June 2019.

24.  Although full effect can be given to my decision that Ms Massengill continued to have 100% care of [Child 1] on and from 19 March 2017 and it follows that no terminating event occurred on that date, the CSA’s (incorrect) decision that there was a terminating event remains in place.  It seems to me therefore that if Ms Massengill wished to have this decision formally changed an extension of time application would be required.            

25.  For completeness, my decision has the effect for family tax benefit purposes described in subsection 35U(2) of the A New Tax System (Family Assistance) (Administration) Act 1999.  In essence, as the considerations outlined above regarding the existence of a terminating event decision are irrelevant for family assistance purposes, my decision will require  Centrelink to recalculate any family tax benefit debts raised on the basis of the CSA’s original care percentage decision.  That is, the debts will need to be recalculated on the basis that Ms Massengill continued to have 100% of [Child 1]’s care on and from 19 March 2017.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change of care on 19 March 2017.  Accordingly, Ms Massengill continued to have 100% of [Child 1]’s care on and from this date.