Sylvan and Child Support Registrar (Child support)

[2018] AATA 3082

Sylvan and Child Support Registrar (Child support) [2018] AATA 3082 (25 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014326

APPLICANT:  Ms Sylvan

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Deputy President J Walsh

DECISION DATE:  25 July 2018

CATCHWORDS
Child support – Percentage of care – Pattern of care in accordance with a court order – No practical difference to child support assessment – Tribunal satisfied that the application is frivolous, vexatious, misconceived or lacking in substance – Application for review dismissed

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.

DISMISSAL OF APPLICATION FOR REVIEW:

1. In this matter, the applicant mother seeks review of an objection decision dated 13 June 2018 which determined that the care of the parents’ daughter was 70% to her and 30% to the father with effect in the child support assessment from 6 February 2018. The original decision, which the mother had objected to, had assessed care as 75% to her and 25% to the father   

2. I convened a directions hearing on 17 July 2018 in order to ensure that I properly understood the mother’s case. Her position is that it is appropriate that the father’s level of care be assessed at 72 nights per year, or 19%. The basis for this approach derives from a court order dated 19 February 2016 pursuant to which the mother contends the father should not have any allowance for school holiday care.

3. After some discussion at the directions hearing, I formed the view that this AAT application seemed to be an appropriate candidate for summary dismissal under paragraph 42B(1)(a) of the Administrative Appeals Tribunal Act 1975. Mindful that such a course ought not be lightly taken, I gave the mother time to provide any written submission she wanted considered. As she foreshadowed, the mother has not submitted anything further.

Consideration

1. The test for the CSA, and the Tribunal on review, in relation to care percentage matters is to consider the actual or likely pattern of care over an appropriate care period. Here the court order is plainly relevant. Contrary to the mother’s position, the objection decision took into account likely school holiday care for the father in determining a higher care percentage of 30%. The mother objects to this approach, since it necessarily involved a forecast which might not turn out to reflect what actually occurs. However, an element of forecasting likely care, on the available evidence, is part of the relevant test in this context. The mother says school holiday care for the father requires written agreement between the parents. However, that view misapprehends the court orders which provide, in default of such agreement, for the father to have specified periods of holiday care. The only proviso is that he be on annual or other leave: see, for example, order 4(g).

2. I noted that the child support liability in this case was unaffected by any difference in care percentage for the father between 14% and 34%. So whether the mother’s position of 19% care for the father, the original decision of 25% or the objection decision of 30% is accepted, his child support liability is the same. Against that background, I asked the mother what practical point there was in her application. She accepted it made no difference to the assessment, but maintained she wanted the ‘correct’ outcome. She also suggested it might assist in some way in future court proceedings if she had an official document detailing care correctly.

Conclusion

1. Amendments to the AAT Act made by the Tribunals Amalgamation Act 2015 broadened the scope of the Tribunal’s dismissal powers. Section 42B(1) relevantly provides:

   (1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a) is frivolous, vexatious, misconceived or lacking in substance; or

   (b) has no reasonable prospect of success; or

   (c) is otherwise an abuse of the process of the Tribunal.

The Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained that these powers “would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.”

1. The Tribunal’s statutory objective is, inter alia, to provide a mechanism of review that is fair, just, economical, informal and quick: see section 2A of the AAT Act. It is trite that the power to dismiss an application on the basis it is frivolous (or ‘futile’ in this context) or lacking in substance ought be sparingly invoked.

2. In my view, on an objective assessment, there is no practical utility in this application proceeding. There would be further expense and inconvenience if the matter were permitted to proceed to a hearing. The father would have to be invited to be a party and then the Tribunal would have to be constituted by a member to conduct a hearing and deliver a decision. Since any decision of the Tribunal would simply turn on an assessment of actual or likely care as at the time of the original decision on 11 April 2018, it is difficult to see how any material weight might be placed on such a decision by a court in any future proceedings between the parents. Importantly, in the context here, any Tribunal decision would make no difference to the child support liability in this matter.     

3. In the circumstances, and guided by the Tribunal’s statutory objective under section 2A of the AAT Act, I have decided that it is appropriate to exercise the power available under paragraph 42B(1)(a). Permitting proceedings that make no practical difference to the child support assessment to continue would be inconsistent with notions of justice, fairness, economy and proportionality that the Tribunal must take into account. Accordingly, I dismiss this application.