Nayah and Craymer (Child support)

[2018] AATA 3797

Nayah and Craymer (Child support) [2018] AATA 3797 (19 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/BC013057

APPLICANT:  Mr Nayah

OTHER PARTIES:  Child Support Registrar

Ms Craymer

TRIBUNAL:Deputy President J Walsh

DECISION DATE:  19 June 2018

DECISION:

The decision under review is set aside and a decision substituted that there was no jurisdiction to consider the objection to the decision as to care for the period 6 August 2015 to 4 October 2016.

CATCHWORDS

Child support - Percentage of care - Care percentage determination for a period before the start date of the administrative assessment - Whether the department had jurisdiction to consider an objection - No jurisdiction - 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 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. The applicant father seeks AAT review of an objection decision dated 23 May 2017 which determined each parent was to be attributed with a care percentage for their child of 50% from 6 August 2015, said to be effective in the child support assessment from 6 October 2016.

2. The relevant background is that the mother applied for a child support assessment which was accepted by the CSA from 6 October 2016. Care was assessed as being 50% to each parent.

3. Subsequently, in late November 2016, the CSA became aware via a data transfer from the Family Assistance Office that the father had claimed 100% care from 6 August 2015. On 28 March 2017, the CSA made a decision of 100% care to the father from 6 August 2015 to 4 October 2016. It can be noted that, since this period pre-dated any child support assessment, the decision had no effect for child support purposes. It seems likely, however, given the linkages with the family assistance system, there were family tax benefit consequences flowing from this decision.

4. On 3 April 2017, the mother objected to the March 2017 care decision. The result was the objection decision of 23 May 2017 which determined 50% care to each parent from 6 August 2015.

5. On 6 December 2017, the father applied to the Tribunal for review.

6. On 1 March 2018, I ordered the Child Support Registrar to provide a written submission as to the basis upon which it was open to the objections officer to determine care percentages for any period prior to the commencement of the child support case. In effect, I sought submissions as to the objections officer’s jurisdiction in the circumstances. The Registrar’s submissions in response were to the effect that the objections officer did have jurisdiction to make the decision made.

7. I then convened directions hearings on 23 April and 6 June 2018. The Registrar was represented at the earlier proceeding after which I allowed the Registrar further time for any additional written submissions to be filed.        

CONSIDERATION

1. The simplified outline of Part 7 of the Child Support (Registration and Collection) Act 1988 details that certain persons can object to certain child support decisions: see section 79D. Generally, where a person objects, the Registrar is then required to reconsider the decision and either disallow the objection or allow it in whole or in part. If a person is dissatisfied with the outcome, they can seek AAT review.

2. By section 80A of the Collection Act, either the carer entitled to child support or the liable parent can object to a care percentage decision. Section 89 then permits AAT review of any such objection decision. Insofar as it is relevant here, a care percentage decision is defined in subsection 4(1) of the Collection Act:

   care percentage decision means a decision as to the particulars of an administrative assessment … to the extent that the decision involves (wholly or partly):

   (a) a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act; or

   (b)  a determination relating to a person that has effect, under section 54K of that Act, as if it were a determination made under such a provision.

3. The care percentage decision definition is tied to the particulars of a child support administrative assessment. The term ‘particulars’ is not defined, but should be understood as referring to material details in the child support assessment. A basic understanding of the child support formula and its operation makes it clear that care percentages are material variables in a child support assessment under Part 5 of the Child Support (Assessment) Act 1989. However, not all decisions as to care will be within the description of a decision ‘as to’ particulars of the administrative assessment. Whilst it may be accepted that the term of connection ‘as to’ can be given a reasonably wide construction, the subject decision must still have a sufficient nexus with the particulars of the child support assessment before it might be characterised as a care percentage decision as defined.

4. In this case, the child support assessment commenced from 6 October 2016. On 31 October 2016, a care percentage decision of 50% to each parent was made in the context of the decision to accept the mother’s child support application.

5. The primary decision here from which the mother sought to object was made later on 28 March 2017. The material from the CSA indicates a decision of 100% care to the father for the period 6 August 2015 to 4 October 2016 was made by the Family Assistance Office and then replicated in the CSA’s computer system; the CSA’s decision was in identical terms. Just why the CSA should have considered it necessary or desirable to make a care decision for a closed period, prior to any child support assessment existing, is not entirely clear.

6. In any event, the mother then sought to object. This was authorised under the Collection Act only if the subject decision was a care percentage decision as defined.

7. The Registrar submitted the subject decision was a care percentage decision. The final care determination was to be based on the pattern of care assessed by reference to an appropriate care period in the particular circumstances. There was nothing to prevent some or all of that care period including dates before child support became payable. This much may be accepted. The Registrar also points to the alignment of care provisions in the Assessment Act and the Family Assistance legislation. Finally, reliance is placed on the objections officer characterising the subject decision as the father providing 100% care from 6 August 2015, effective in the assessment 06 October 2016.

8. The objection decision here purports to determine care for a period from 6 August 2015 to 4 October 2016. So much is clear from the reasons for decision which state “We must now determine what level of care occurred from 06 August 2015 to 04 October 2016.” Care for this period is simply not relevant to the child support assessment, in respect of which a separate care percentage decision had previously been made. Even if regard had been had to some part of the period to 4 October 2016 in terms of assessing the actual or likely pattern of care for an appropriate care period, that alone would not be enough to make any such care period a particular of the child support assessment. The relevant particular is the care percentage itself, based on an assessment of care for a care period. It is the care percentage which finds its way into the formula assessment of child support, not the care period. The Registrar’s submission points to the form of words in the objection decision to determine care from 6 August 2015, effective in the assessment 06 October 2016, as supplying the necessary connection to the child support assessment. I do not accept that submission. It puts form over substance. I consider the care determination made on objection had no substantive effect whatsoever in the child support assessment. The words ‘effective in the assessment 06 October 2016’ cannot operate to convert something of no effect to something of relevant substance.

9. It follows I do not consider the decision of 28 March 2017 was a care percentage decision as defined. The result is that the mother was not entitled to object to it. Nor was the father entitled to then seek AAT review.

10. However, an objection decision has in fact been made. It is the fact of this decision, and not its legal effectiveness, which gives the Tribunal jurisdiction. However, my jurisdiction is limited here to that which was properly open on objection. Since it was not open to object to the decision of 28 March 2017, the appropriate course is to set aside the decision under review on the basis there was no jurisdiction to consider the mother’s objection.

11. At the most recent directions hearing, the parents explained that each had incurred family tax benefit debts as a result of the objection decision. In the circumstances, I explained the Tribunal could not consider these debts in its child support jurisdiction in any event. I suggested they might consider seeking authorised review officer review within Centrelink, after which it would be open to seek AAT review if necessary.             

DECISION

The decision under review is set aside and a decision substituted that there was no jurisdiction to consider the objection to the decision as to care for the period 6 August 2015 to 4 October 2016.