Norman and Norman (Child support)

[2019] AATA 5100

Norman and Norman (Child support) [2019] AATA 5100 (10 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC016670

APPLICANT:  Mr Norman

OTHER PARTIES:  Child Support Registrar

Ms Norman

TRIBUNAL:Member W Budiselik

DECISION DATE:  10 September 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made - 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. Mr Norman (the applicant father) and Ms Norman (the mother) are the parents of two children (born in 1997 (the elder child) and 2000 (the younger child), respectively). The decision under review is about the attribution of the elder child’s care percentage to the parents from 1 September 2013.

2. On 17 May 2019, a Department of Human Services Child Support (the department) objections officer disallowed the applicant father’s objection to a decision made by a departmental officer on 26 September 2013, to attribute 100% of the elder child’s care to the applicant father from 1 September 2013. The tribunal notes the objections officer’s decision statement incorrectly identifies the mother as the person who lodged the objection to the department’s original decision.

3. On 4 June 2019, the applicant father lodged an application for a review of the department’s decision with the Administrative Appeals Tribunal (the tribunal). On 20 August 2019, the tribunal conducted a hearing into the application. The applicant father and mother attended the hearing and participated in it. Prior to the hearing the department provided the tribunal and the parents with a bundle of documents taken from the department’s files (folios 1–215). On 20 August 2019, the tribunal deferred its decision-making process to obtain additional information from the department. The information received from the department (folios C1–C8) has been provided to the parents.

4. When the applicant first lodged his application for review with the tribunal he identified the decision he wanted reviewed was an objections officer’s decision of 8 April 2019. An officer from the tribunal’s registry discussed the decision the applicant identified for review with the applicant. The officer explained there were two objections officer’s decisions, one made on 8 April 2019 and one made on 17 May 2019. The applicant said he would like both decisions reviewed by the tribunal.

5. The officer explained the decision made on 8 April 2019, would be scheduled for a separate tribunal review hearing because it required consideration of the department’s decision to refuse the applicant an extension of time within which to lodge an objection. The decision of 8 April 2019 is not before the tribunal. The tribunal notes the applicant father was informed by the tribunal the review application for the decision made on 8 April 2019, was discontinued on 6 August 2019.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. The issue which arises in this case is whether the department’s decision to attribute 100% of the elder child’s care to the applicant father from 1 September 2013 is correct.

CONSIDERATION

Issue: Is the department’s decision to attribute 100% of the elder child’s care to the father from 1 September 2013, correct?

1. The relevant provisions in this case are set out in Part 5 of the Act. These provide that if there is a change to a parent’s percentage of care, and that change would cause a change to the parent’s cost percentage, then the care determination that is in place must be revoked and replaced by a percentage of care determination that reflects the actual care that the person will have, or is likely to have in the care period.

2. Subsection 54F(2) of the Act sets out when care revocation decisions take effect. The legislation that was in effect at the relevant time in this case provided that if a person notified the department of a change of care more than 28 days after the change of care occurred, the date of effect of the change of care decision is the day before the change was notified.

3. Section 87AA of the Registration and Collection Act restricts the date of effect of a care percentage decision made by an objections officer, to the date the objection was lodged, if that objection was lodged more than 28 days after the person was notified of the original decision. Subsection 87AA(2) of the Registration and Collection Act provides that if there are special circumstances that prevented the person from lodging the objection within the 28-day period, then that period may be extended.

4. In this case the applicant lodged his objection to the department’s decision that took effect on 1 September 2013, on 8 March 2019. That is, even if the tribunal found the change of care decision was wrong, in the absence of special circumstances the date of effect of a new decision would be 8 March 2019. That is, the child care assessments for the elder child would not be changed because the date of effect is after the child support case ended (noting the child was born in 1997).

5. At the outset of the hearing the tribunal explained to the applicant father the decision under review was the decision to attribute him with 100% of the elder child’s care from 1 September 2013. The applicant father told the tribunal that decision was correct and that was not the decision he wished to have reviewed. The applicant explained the reasons for his application for review were:

a)because he owed arrears to the department,

b)the younger child was raised by his father-in-law and not the mother, and child support should be paid to the father-in-law and not to the mother, and

c)he wanted to know whether the department garnished his bank account while he was overseas in 2017.

1. The mother did not object to the objections officer’s decision of 17 May 2019. She did not argue to the tribunal the department’s decision was incorrect. The tribunal explained to the father its power to review a decision was restricted to reviewing the decision reviewed by the department’s objections officer about the applicant father assuming the elder child’s care on 1 September 2013. In effect, neither parent was seeking a review of the decision before the tribunal.

14.The tribunal reviewed the department’s papers in detail with the parents. The mother said she had previously notified the department the younger child was being cared for by her parents. She told the applicant father that she had financially supported the child when he lived with her parents and that when she receives a back payment from the department she intends to direct most of it to her father.

15.The tribunal sought information from the department about action it has taken to garnish the applicant father’s bank account. The department’s responses confirm his bank account was subject to garnishee action in 2017, and that the action ceased in 2017, after he entered into a payment plan.

DECISION

The decision under review is affirmed.