Robins and Child Support Registrar (Child support)

Robins and Child Support Registrar (Child support) [2022] AATA 953 (1 March 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2021/BC022799

APPLICANT: Ms Robins

OTHER PARTIES: Child Support Registrar
TRIBUNAL:Member S De Bono
DECISION DATE: 1 March 2022
DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that the tribunal does not have jurisdiction to deal with the application for review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no jurisdiction – decision under review set aside and sent back with directions

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

Ms Robins and [Mr A] are the separated parents of [Child 1]. There was a child support assessment in place since 5 October 2006. From 27 October 2018 the percentages of care were 100% to Ms Robins and 0% to [Mr A].
On 3 June 2021 Child Support made two decisions. They determined that Ms Robins’ care of [Child 1] changed from 100% to 0% care and applied from 24 June 2020 and [Mr A’s] care remained at 0%. Child Support decided on 3 June 2021 that there had been a terminating event in relation to the child support assessment, and the assessment consequently ended from 24 June 2020.
Child Support has also recorded that on 5 May 2021 there was a notification that [Mr A’s] care had changed from 0% to 100% from 25 February 2021. It is unclear to the tribunal who made this notification, however, it appears the notification was made to Centrelink (possibly in relation to an application for family tax benefit). The tribunal assumes in this instance that [Mr A] was the person who applied for family tax benefit although there was no further information about the circumstances of this notification in the hearing papers. As a result of this information, Child Support decided on the basis of a determination by Centrelink that [Mr A] had a care percentage of 100% for [Child 1] from 25 February 2021. This care percentage did not immediately have any effect for child support purposes, as the child support assessment had been ended from 24 June 2020 and no new application for a child support assessment had been received.
On 10 June 2021 [Mr A] made an application for a child support assessment in respect of [Child 1]. This was accepted by Child Support on 6 July 2021, and a care determination of 100% to [Mr A] and 0% to Ms Robins was recorded from 10 June 2021.
On 28 June 2021 Ms Robins contacted Child Support to advise that she has had the care of [Child 1] since she was born except for the period in which she had to give up care for 3 months from 25 February 2021. During this phone call to Child Support Ms Robins also says [Mr A] did not have care when he made the application for a child support assessment on 10 June 2021. Ms Robins was also unclear why there had been a decision that [Child 1] was in third party care from 24 June 2020 as she says she had care at that time. It seems to the tribunal that Ms Robins was objecting to the decision made on 5 May 2021 to record Ms Robins’ care of [Child 1] as 0% from 24 June 2020. This was a terminating event in respect of the registration of child support. But it does not appear that this decision has been reviewed by Child Support.
On 2 August 2021 Ms Robins’ objected to the decision to determine the care of [Child 1] was 100% to [Mr A] from 25 February 2021. On 3 October 2021 an objections officer partially allowed Ms Robins’ objection finding that [Mr A] had 100% care of [Child 1] from 16 April 2021.
On 23 November 2021 Ms Robins applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. [Mr A] did not apply to be a party to the proceedings and was removed as a party. On 1 March 2022 Ms Robins gave evidence under affirmation to the tribunal. The tribunal had before it a bundle of documents (185 pages – referred to as the hearing papers) which had been sent to Ms Robins prior to the hearing. Ms Robins also provided additional information prior to the hearing (A1–A62). Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

LAW AND CONSIDERATION

The law relevant to this review is found in the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

There has been a court order in place in relation to the care of [Child 1] from 31 August 2011. The order provides that [Child 1] lives with Ms Robins and spends two hours every alternate weekend at the [named] Contact Centre with [Mr A]. Ms Robins said [Mr A] has spent very little time with [Child 1] since she was born and she has had 100% care of [Child 1] since her birth.
Ms Robins did not dispute she was in [a named] Correctional Centre from 25 February 2021 and she was released on 24 May 2021. Ms Robins said she arranged for her friend [Friend A] and his mother [Friend B] to move into her house to stay with [Child 1] during this period. She said she left money in her bank account which [Child 1] had access to, and she left money for [Friend A] and [Friend B] for expenses. She said she would text or speak with [Child 1] most days. During the period Ms Robins was imprisoned she said [Mr A] paid no bills or rent for her house. When she was released she had incurred rental arrears as well as bills which she then had to pay.
Ms Robins said [Mr A] moved into her home with [Child 1] on 16 April 2021 and he asked [Friend A] and [Friend B] to leave, which they did. She said [Mr A] also reported [Friend A] to Child Safety and applied for a Domestic Violence Order [in] March 2021. Ms Robins said she was upset that [Mr A] had moved into her home with [Child 1] and said he did this because he was homeless at the time and not because he was worried about [Child 1]. She said both [Friend A] and [Friend B] were distressed about [Mr A’s] behaviour during this period. When Ms Robins became aware that [Mr A] had moved into her house she also contacted Child Safety for an investigation to occur to determine if [Child 1] was safe in her father’s care. On [a day in April 2021 Child Safety determined that [Child 1] was a child not in need of protection and that [Mr A] had taken full-time care of [Child 1].
Ms Robins said that when she was released from prison on 24 May 2021 she returned to her home and [Mr A] left on that date, and she resumed the care of [Child 1].
It appears to the tribunal that Ms Robins initially attempted to object to the decision that [Child 1] had left her care on 24 June 2020. Ms Robins said that [Child 1] was still in her care on that date, and remained in her care up until 25 February 2021. It appears that she first attempted to object to that decision on 28 June 2021, and she was advised by Child Support that she should lodge a care decision with “Centrelink FAO” (according to the note at page 58 of the documents provided by the Child Support Registrar). It seems to the tribunal that Ms Robins was objecting to the decision to determine her care was 0% from 24 June 2020, however, this decision has not been reviewed by Child Support. It seems to the tribunal that Child Support can review this decision.
The only objection decision that appears to have been made in this matter is the decision made by an objections officer on 3 October 2021 to partially allow Ms Robins’ objection to determine that care of [Child 1] was 0% to her and 100% to [Mr A] from 16 April 2021.
The summary of the objections officer’s decision states:
SUMMARY OF OBJECTION DECISION
We have made the decision that from 16 April 2021 [Ms Robins] provides 0% care and [Mr A] provides 100% care of [Child 1], notified to us on 5 May 2021.
OTHER MATTERS
It is noted that there have been subsequent decisions made regarding the care arrangements for [Child 1]. As these are new decisions, they are accompanied with fresh objection rights.
The objections officer states that the decision under review is:
[Ms Robins] is objecting to the decision on 3 June 2021 to accept [Ms Robins] provides 0% care and [Mr A] provides 100% care of [Child 1] from 25 February 2021, notified on 5 May 2021.
[Ms Robins] has objected to this decision and wrote she placed [Child 1] in another person`s care for a period of time when she was incarcerated and was not expecting [Mr A] to make a child support application.
The tribunal is satisfied that although Ms Robins attempted to object to the decision that she had 0% care of [Child 1] from 24 June 2020, no objection decision has been made in relation to that decision. The tribunal does not have any material before it as to why or how that decision was made, and therefore makes no findings as to [Child 1’s] care from 24 June 2020.
However, the tribunal is satisfied that as at the date of the original decision on 3 June 2021, there was no child support assessment in place and no new application for child support had been received until at least 10 June 2021.
The tribunal is further satisfied that on 6 July 2021 a decision was made by the Child Support Registrar to accept Ms Robins’ application for registration of child support, which determined that Ms Robins had 100% care of [Child 1] from 24 May 2021 (and [Mr A] had 0% care) from this date.
Section 80A of the Registration Act provides that either the carer entitled to child support or the liable parent can object to a care percentage decision. Insofar as it is relevant here, a care percentage decision is defined in subsection 4(1) of the Registration 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
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. In the tribunal’s view, the care of [Child 1] for the period under consideration in the objection decision cannot be a particular of the child support assessment, as there was no child support assessment in existence at that time.
The objection decision here purports to determine care for a period from 25 February 2021 to 24 May 2021 (when a subsequent care decision was made). Care for this period is simply not relevant to any child support assessment for [Child 1].
It follows that the tribunal does not consider the decision of 3 June 2021 that the father had 100% care of [Child 1] from 25 February 2021 was a care percentage decision as defined. The result is that Ms Robins was not entitled to object to it nor was Ms Robins entitled to then seek tribunal review.
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, the tribunal’s jurisdiction is limited here to that which was properly open on objection. Since it was not open to object to the decision of 3 June 2021 that the father had 100% care of [Child 1] from 25 February 2021, the appropriate course is to set aside the decision under review and remit the matter on the basis there was no jurisdiction to consider Ms Robins’ objection.

DECISION

[2022] AATA 953

1 March 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Judicial Review

Procedural Fairness