Scruton and Tichenor (Child support)

[2021] AATA 4490

Scruton and Tichenor (Child support) [2021] AATA 4490 (22 October 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022067

APPLICANT:  Ms Scruton

OTHER PARTIES:  Child Support Registrar

Mr Tichenor

TRIBUNAL:  Member S Cullimore

DECISION DATE:  22 October 2021

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for further consideration and for new determinations to be made regarding the child support entitlements of Ms Scruton for the child [Child 1], for the period from 4 September 2020 onwards, in accordance with the findings and directions contained in the Reasons for Decision.

This means that the application for review is partly successful.

CATCHWORDS

CHILD SUPPORT – percentage of care – care change notification was actually application for administrative assessment – 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

1. This matter has an unusual and complex history.

2. The following background information is taken from the records of the Child Support Agency (“the CSA”) and is not in dispute, and the Tribunal finds each matter as fact.

3. Ms Scruton and Mr Tichenor are the parents of three children, now aged 18 ([Child 1]), 16 ([Child 2)) and 14 ([Child 3]).

4. The child support case commenced 2 January 2008 and has been Registrar collect since 12 March 2020.

5. Care of [Child 1] was recorded as nil care to either parent after 5 September 2019. He had lived independently of the parents after that date.

6. On 4 September 2020 Ms Scruton contacted the CSA.[1]

   [1] See discussion below.

7. On 13 October 2020 a delegate decided to change the care percentages for [Child 1] to 100% care to Ms Scruton and 0% care to Mr Tichenor from 4 September 2020 and the care percentages for [Child 3] to equal shared care from 8 September 2020.[2]

   [2] C36

8. Ms Scruton objected to those decisions on 5 February 2021.

9. On 14 April 2021 either the same objections officer wrote two separate objection decisions, one about each child, or two different objections officers dealt with the objection lodged by Ms Scruton.[3]

   [3] It is not clear who wrote each objection decision.

10.In either event, there were two different objection decisions, one for each child.

11.The objection decision for [Child 1] stated that it “allowed” the objection and made a new care determination, namely that care of [Child 1] was 100% to Ms Scruton from 21 July 2020 (i.e. not from 4 September 2020).

12.However, because Ms Scruton was “late to object”, the objections officer decided that this new care determination was only effective in the child support assessment from the date of objection: 5 February 2021.

13.A similar objection decision was made the same day in respect of [Child 3], which decided that care of [Child 3] had been 100% care to Ms Scruton from 8 September 2020, but effective in the child support assessment from date of objection: 5 February 2021.

14.Ms Scruton sought further review of both matters by this Tribunal.

15.On 10 August 2021 a different Tribunal Member, Senior Member R Ellis, in review 2021/BC021426, affirmed the objection decision regarding the care of [Child 3].

16.That review did not deal with the objection decision in respect of the care of [Child 1].

17.That is the subject of this review.

18.The child support case for [Child 1] ended 27 May 2021.

DOCUMENTARY EVIDENCE AND HEARING

19.The Tribunal had before it a bundle of documents provided by the CSA. This bundle is referred to in this decision as C1 to C168.

1. The parents attended the hearing on 13 October 2021, via teleconference, and gave evidence and made verbal submissions.

2. The Tribunal deferred to consider the relevant law, the impact of the earlier AAT decision, and the legally correct outcome for this matter.

3. This decision was made on 22 October 2021.

ISSUES

23.The principal issues to be decided by the Tribunal are:

·What was the 4 September 2020 contact about and how should it have been processed and determined?

·Was there in fact a change in care for [Child 1]?

·If so, what was it and when did it occur?

·What is now the legally correct outcome for this matter?

CONSIDERATION

The relevant child support law

24.The law relevant to applications to register a child support case is contained in section 25 onwards of the Child Support (Registration and Collection) Act 1988 (“the R and C Act”).

25.The law relevant to determining care at the commencement of a new child support case, and then later care changes, is contained in sections 49 to 54L of the Child Support (Assessment) Act 1989 (“the Act”).

26.As to how care is determined, when a new child support case is commenced, or subsequently, where there are no court orders or other legally binding arrangements, care percentages normally follow the pattern of actual care which is occurring between the parents: section 50 of the Act.

27.An objection may be made to a decision to register a new child support case (e.g. as to the date the case commences) or to a care determination made by a delegate.

28.For objections to care matters, as such, there is no time limit to object, but section 87AA of the R and C Act provides that if a person lodges an objection more than 28 days after receipt of the delegate decision, and:

the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the [original care] determination to which the care percentage decision relates, or substituting a new determination…

then the date of effect of the review decision is the day the objection was lodged, unless “special circumstances prevented” the person from lodging the objection in time, in which case time can be extended.

1. Other objections are subject to a 28 day time limit.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

30.The Tribunal has carefully considered all of the information on the CSA file, including the verbal and documentary evidence as presented by the parents to the CSA; the evidence and submissions presented to it; and the terms of the previous AAT decision regarding the care of [Child 3].

31.The Tribunal noted that the objections officer in this matter decided, as a fact, that care of [Child 1] had changed on 21 July 2020, some six weeks earlier than the date fixed by the delegate decision, which was 4 September 2020.

32.Neither parent disputed that [Child 1] had come into the 100% care of Ms Scruton on 21 July 2020, and the Tribunal therefore finds as fact that care of [Child 1] was 100% to Ms Scruton from 21 July 2020.

33.Much then turns on what happened in the recorded contact between Ms Scruton and the CSA on 4 September 2020.

34.The Tribunal finds that the CSA in error treated this contact as a notification of a care change for [Child 1].

35.In reality, the Tribunal finds, Ms Scruton was applying for a new child support case for [Child 1], and was making this application under section 25 of the R and C Act. It should be recalled that [Child 1] had been out of the care of either parent for about a year.

36.  There was no dispute that as at 4 September 2020 [Child 1] was in her 100% care, and so she was entitled, had the matter been correctly processed and determined, to have a new child support case registered from (at least) 4 September 2020, on that basis. However, the CSA, in error, treated her as having made a “care change notification” on 4 September 2020.

37. As she then objected “late” to the delegate decision, section 87AA of the R and C Act has been relied upon by the objections officer to decide effectively that Ms Scruton cannot have a new child support case registered in her favour until the date she objected, 5 February 2021.

38.  This outcome was unfair, misconceived and legally incorrect.

39.  What Ms Scruton was objecting to, in the Tribunal’s view, was the correct start date of the new child support case for [Child 1], and while she was late in her objection (because she should have objected within 28 days of receiving the delegate decision) she should have been told that she could apply for an extension of time to object.

40.  In any event, as at the date she objected she should have had in place a decision in her favour that her new child support case had commenced from 4 September 2020. Instead, the outcome has been that she currently has no child support entitlement at all before 5 February 2021.

41.  In these unusual circumstances, the matter is now sent back to the Child Support Registrar with the findings as set out above, and with the following directions:

• Ms Scruton’s contact on 4 September 2020 now be treated as an application by her to register a new child support case, on the basis that she had had 100% care of [Child 1] from 21 July 2020 onwards;

• The Child Support Registrar should consider and determine the start date of the new child support case and the issue of whether the new case should be Registrar collect (in which case arrears of child support may be payable by Mr Tichenor) based upon what is set out in this decision and any further evidence supplied or submissions made to the Child Support Registrar on those matters by the parents before those matters are determined.

42.The Tribunal finally wishes to make clear that it cannot, via this decision, change the earlier AAT decision regarding [Child 3]. That decision would need to be appealed to AAT Level 2.

DECISION

The decision under review is set aside and the matter is sent back to the Child Support Registrar for further consideration and for new determinations to be made regarding the child support entitlements of Ms Scruton for [Child 1], for the period from 4 September 2020 onwards, in accordance with the findings and directions contained in the Reasons for Decision.

This means that the application for review is partly successful.