Quinn and Tarrant (Child support)

[2017] AATA 2950

Quinn and Tarrant (Child support) [2017] AATA 2950 (11 December 2017)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/PC012016

APPLICANT:  Mr Quinn

OTHER PARTIES:  Child Support Registrar

Ms Tarrant

TRIBUNAL:  Member S Cullimore

DECISION DATE:  11 December 2017

DECISION:

The Tribunal sets aside the decision under review and sends the matter back to the Child Support Registrar for further consideration based upon the findings of fact contained in this decision and with the following directions:

• That an objections officer now conducts a full merits review of both of the delegate decisions made on 16 February 2017.

This means that the application for review is partly successful.

CATCHWORDS

Child Support – Percentage of care – Determination of the likely pattern of care – Full merits internal review not conducted – Decision under review set aside and remitted for reconsideration with directions

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 following information is taken from the records of the Department of Human Services – Child Support (“the CSA”).

2. Mr Quinn and Ms Tarrant are the parents of two children, [Child 1] and [Child 2], who are now 13 and 11.

3. This review is about the care percentages used for both parents for the children in the recent child support assessments.

4. On 16 February 2017 a delegate (or possibly two different delegates) made two separate decisions regarding the care percentages recorded by the CSA in this matter.

5. The first decision was to (i) change the care percentages for [Child 1] from 100% to Ms Tarrant and 0% to Mr Quinn to 86% to Ms Tarrant and 14% to Mr Quinn from 2 September 2016; and (ii) change the care percentages for [Child 2] from 51% to Ms Tarrant and 49% to Mr Quinn to 72% to Ms Tarrant and 28% to Mr Quinn from 1 September 2016.[1]

   [1] C69.

6. Because of the late notification of the care changes, these changes did not impact upon the child support assessments until 29 December 2016.

7. The second decision was expressed as being a refusal to make a further care determination regarding the care of [Child 1] (only).[2]

   [2] See C65 and 66.

8. Mr Quinn lodged an objection on 31 March 2017.[3]

   [3] C103.

9. On 17 June 2017 an objections officer disallowed Mr Quinn’s objection.

10.On 29 June 2017 Mr Quinn sought a further review by this Tribunal.

DOCUMENTARY EVIDENCE AND HEARING

11.The Tribunal had before it the original bundle of documents provided by the CSA, C1 to C205 and an updated bundle, C206 to C273.

1. Mr Quinn attended the hearing on 23 November 2017 by conference telephone and gave evidence and made verbal submissions.

2. Ms Tarrant took no part in the Tribunal proceedings.

3. The Tribunal deferred to consider the legal issues raising out of the review and made this decision on 11 December 2017.

ISSUES

15.The principal issue to be decided by the Tribunal in a case such as this is normally (1) whether the original decision/s made on 16 February 2017 to change (or not to change) the care percentages was or were the correct and preferable decision/s in all of the circumstances, and, (2) if not, what was the correct and preferable decision in all of the circumstances?

CONSIDERATION

The relevant child support law

16.The law relevant to this type of review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act).

17.In the usual course of events, the CSA makes child support assessments using the child support formula in Part 5 of the Assessment Act. This statutory formula contains a number of elements including a “percentage of care” and a “cost percentage” for each parent in relation to each child.

18.The CSA makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Assessment Act.

19.The legislative scheme provides for a new care percentage determination to be made following notification to the CSA of a change of care arrangements.

20.Under section 54F if the Registrar is notified that the actual care arrangements do not correspond with the existing care percentages, and if changing the care percentages would produce a change in the person’s “cost percentage”, then the Registrar must make a new care determination.

21.Any new care determination takes effect from the date that care changed or, if the Registrar is not notified within 28 days of care changing, then the date of the notification: subsection 54F(2).

22.Significantly, where there are no court orders, written agreements, or similar legally binding arrangements between the parties regarding care, the original decision-maker is required by section 50 of the Assessment Act to assess the actual or likely pattern of care of the children, by reference to an appropriate period from which a pattern can be deduced (this is called “the care period”), and then determine whether to revoke the existing care determination and make a new one.

23.As in this case, where some time has passed before the Tribunal conducts the review, further changes to the care arrangements, and further notifications of care changes, may have occurred (see below). However, the Tribunal may review only the legal correctness of the objection decision based on what evidence was available to the original decision maker as supplemented by any further relevant material supplied to the objections officer.

24.In the Tribunal’s view, the legislative scheme deals with any subsequent change of care by requiring further notification to be made to the CSA of such changes, so that a new care percentage decision or decisions can be considered and made if appropriate.

The relevant facts

25.The Tribunal has considered the documentary evidence and the verbal evidence of Mr Quinn and finds the following facts. These facts were not in issue:

·There are no court orders, written agreements, or similar legally binding arrangements between the parties regarding care;

·From 9 April 2016 to 31 August 2016 care was recorded as Ms Tarrant having 100% of the care of [Child 1] and care of [Child 2] being split 50/50 between the parents;

·On 29 December 2016 the CSA was notified by Ms Tarrant of a change in care;

·She stated that the care of both children had changed from 1 September 2016;

·The new care arrangement was that she had 86% of the care and Mr Quinn had 14% of the care of both children;[4]

[4] This is what she said at C56.

·On 21 January 2017 the CSA contacted Mr Quinn regarding the care change notification;[5]

[5] C50. See also C56.

·He advised that between September and December 2016 he had had 14% care of [Child 1] (two nights per fortnight) and 28% care of [Child 2] (four nights per fortnight) but that the parents had agreed that from 18 December 2016 care would be 50/50 on a week on / week off basis. However, he had just had care for a two week “block” in December because Ms Tarrant had gone away from [the town], where the parties and children live;

·The CSA treated Mr Quinn’s statement on 17 January 2017 that the parents had agreed that from 18 December 2016 care would be 50/50 on a week on / week off basis as new care change notification;

·Ms Tarrant lodged a change of assessment application on 4 January 2017 seeking a higher level of child support than provided for in the administrative assessments;

·That resulted in a decision by an objections officer on 18 May 2017 that for the period from 23 December 2016 to 30 June 2017 Mr Quinn’s adjusted taxable income be fixed at $127,417;[6]

[6] C135.

·Based on the care levels as determined by the CSA the resulting child support liability was $17,421pa;[7]

[7] C147.

·Since 1 July 2017 Mr Quinn has been paying either the fixed annual rate (“FAR”) or the minimum annual rate of child support;

·There have been numerous further changes of care notified by the parties since the objection decision.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

26.The Tribunal noted that it can only hear appeals from decisions of objections officers. It cannot hear an appeal directly from a delegate’s decision. The only decision under review is therefore the objection decision of 17 June 2017. The Tribunal can only affirm, set aside or vary that decision.

27.It is clear to the Tribunal that the objection decision related only to the second decision made on 16 February 2017, and it is noted that that decision was described by the objections officer as a decision “to refuse to reflect a new care determination for [Child 1] and [Child 2] from 18 December 2016” - which was not in fact the delegate’s decision. The delegate’s decision only related to [Child 1].

28.The objections officer, then, purported to review a decision which had never been made, and did not undertake any review of the first decision, the substantive care change made on 16 February 2017, which was to change the care percentages for [Child 1] from 100% to Ms Tarrant and 0% to Mr Quinn to 86% to Ms Tarrant and 14% to Mr Quinn from 2 September 2016 and to change the care percentages for [Child 2] from 51% to Ms Tarrant and 49% to Mr Quinn to 72% to Ms Tarrant and 28% to Mr Quinn from 1 September 2016 (but effective only from 29 December 2016).

29.In fact, the objections officer treated those care arrangements as being the previous care arrangements, in place from 1 September 2016, in order to measure whether a further care change as notified by Mr Quinn (the 50/50 care from 18 December 2016) had occurred.[8] In the view of the Tribunal, those care arrangements were themselves the very subject of the objection of Mr Quinn: they were not to be treated as the status quo to determine if some supposed further change had occurred.

[8] See C16.

30.Mr Quinn gave evidence to the Tribunal that, as at the date he lodged his objection, 31 March 2017, he had intended to object to all recent care determinations made by the CSA. Indeed, his written objection expressly refers to it being an objection “..to diciosns [sic] made on care arrangements.’[9]

[9] See C103.

31.Care diaries as supplied by Mr Quinn indicate to the Tribunal that as at the date of the delegate’s decisions a pattern of care had emerged over the previous two months that each party was having about 50/50 of the care of the children.[10] He also provided some third party evidence of his care levels.

[10] C7

32.Taking into account all of the above, the Tribunal has decided that the legally correct and preferable decision in this matter is now that the matter be sent back to the Child Support Registrar for further consideration, with the direction that Mr Quinn’s objection of 31 March 2017 be treated as an objection to both of the delegate decisions made on 16 February 2017 and a proper merits review of each of those decisions now be undertaken.

33.It would be preferable if the objection be considered afresh by a different objections officer.

34.The Tribunal notes that there could be a substantial amount of child support at stake as:

·The departure determination that for 23 December 2016 to 30 June 2017 Mr Quinn’s adjusted taxable income be fixed at $127,417 will result in a significantly lower child support liability for Mr Quinn for that period if his evidence of his care levels of the children (equal shared care) is accepted; and

·The FAR (which was $1,373pa per child in 2016 and $1,390pa in 2017), which has been applied at times since 1 July 2017, cannot be applied to Mr Quinn at all for any period he has 35% care or more of any child.

DECISION

The Tribunal sets aside the decision under review and sends the matter back to the Child Support Registrar for further consideration based upon the findings of fact contained in this decision and with the following directions:

• That an objections officer now conducts a full merits review of both of the delegate decisions made on 16 February 2017.

This means that the application for review is partly successful.