Travis and Talley (Child support)

[2019] AATA 5102

Travis and Talley (Child support) [2019] AATA 5102 (8 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017035

APPLICANT:  Mr Travis

OTHER PARTIES:  Child Support Registrar

Ms Talley

TRIBUNAL:Member C Breheny

DECISION DATE:  08 October 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether relevant dependent child added correctly from an earlier date – was the Registrar notified - 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. Ms Talley and Mr Travis are the separated parents of [Child 1], born June 2006 and [Child 2], born July 2007. A child support case has been registered with the Department of Human Services – Child Support (the Department) since 1 February 2012 and child support liability is calculated on the basis that the children are in shared care.

2. On 14 February 2019 Ms Talley contacted the Department to check whether her “relevant dependent child”, [Child 3], had been correctly added to her Departmental record. It was then discovered that Ms Talley had informed the Family Assistance Office on 13 August 2015 of the birth of her son on 11 July 2015 (to her current partner), but that record had not been transferred correctly to the Department.

3. On 16 May 2019 the Department corrected the error and added a “relevant dependent child” to Ms Talley’s record from 13 August 2015 (date of notification). This created an overpayment of $1,112.96 for Mr Travis from 13 August 2016 for the time Ms Talley was required to pay child support to Mr Travis. It also increased Mr Travis’s child support liability by $649.27 from 14 November 2016, when he was assessed as paying child support to Ms Talley.

4. On 27 May 2019 Mr Travis objected to the decision and on 24 July 2019 an objections officer disallowed the objection.

5. On 29 July 2019, Mr Travis applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 8 October 2019. Mr Travis and Ms Talley attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the statement and documents provided by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 29 August 2019 (documents numbered 1-224).

ISSUES & CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act).

2. The rate of child support payable by a liable parent is usually based on an administrative assessment calculated in accordance with the relevant formula under Part 5 of the Act.  The statutory formula takes into account factors such as the number of children, the level of care provided and the income of each parent.  Another factor that impacts the rate of child support, is the existence of a relevant dependent child.

3. A relevant dependent child is defined in section 5 of the Act as follows:

   relevant dependent child, in relation to a parent, means a child or step-child of the parent, but only if:

   (a) the parent has at least shared care of the child or step-child during the relevant care period; and

   (b) either:

   (i) the child or step-child is under 18; or

   (ii) if the child or step-child is not under 18—a child support terminating event has not happened under subsection 151D(1) in relation to the child; and

   (c) the child or step-child is not a member of a couple; and

   (d) in the case of a step-child:

   (i) an order is in force under section 66M of the Family Law Act 1975 in relation to the parent and the step-child; or
   (ii) the parent has the duty, under section 124 of the Family Court Act 1997 of Western Australia, of maintaining the step-child; and

   (e) in the case of a child—the parent is not assessed in respect of the costs of the child (except for the purposes of step 4 of the method statement in section 46).

4. In this case there is no dispute that Ms Talley’s son, [Child 3], was born on 11 July 2015 and that he has been in her care 100% of the time. He is under 18 years of age and I am satisfied that [Child 3] is Ms Talley’s relevant dependent child for the purposes of the Act.

5. Section 73A of the Act provides that a relevant dependent child must be added to the record for the purposes of making a child support assessment. To do so, an administrative assessment must be in place at the time and the date from which the child is added to the administrative assessment depends on whether the Registrar was notified within 28 days after the day that the child came into a person’s care. This section relevantly states:

   73A  Registrar becoming aware of relevant dependent child

   (1) If:

   (a) an administrative assessment of child support is in force in relation to a parent; and

   (b) the Registrar is later notified, or otherwise becomes aware, of the fact that the parent has a relevant dependent child who was not taken into account for the purposes of making the assessment;

   then, for the purposes of working out the parent’s relevant dependent child amount under section 46, the parent is taken to have the relevant dependent child:

   (c) if the Registrar was notified, or otherwise became aware, of the fact that the child is a relevant dependent child of the parent within 28 days after the day on which the child became such a child—on and from the day the child became such a child; or

   (d) if paragraph (c) does not apply and the Registrar was notified, or otherwise became aware, of the fact within 28 days after giving a notice under section 34 (giving notice of successful application)—on and from the day on which the application was made; or

   (e) if neither paragraph (c) nor (d) applies—on and from the day the Registrar was notified, or otherwise became aware, of the fact that the child is a relevant dependent child of the parent.

   …

6. I note that since the legislative changes on 1 July 2010, a person may either inform the Registrar (Child Support) or the Secretary (Centrelink/Family Assistance Office) that a child came into their care. In this case Ms Talley notified the Family Assistance office on 13 August 2015 of [Child 3]’s birth (on 11 July 2015), which is more than 28 days after the event and thus the date any amendment to the assessment takes effect is the date the Department became aware of the relevant dependent child.  In accordance with paragraph 73A(1)(e) of the Act that date is 13 August 2015.

7. Mr Travis submitted that it was not fair that the child support assessment should be amended retrospectively for so many years and thus create an overpayment for him. He noted that other provisions in the legislation only allow for a much shorter “backdating period” (e.g. “opt-in” arrears can only be collected for the past three months).

8. Ms Talley agreed that the decision was correct and that she had properly notified the Family Assistance Office (and thereby the Registrar) of the birth of her son.

9. In this case the facts are not in dispute and whilst it is unfortunate that the error had not been discovered much earlier, it needed to be corrected once it was discovered. The changes retrospectively made to the administrative assessment are in accordance with the legislation and I affirm the decision under review.

DECISION

The decision under review is affirmed.