Confidential and and Confidential
[2010] AATA 585
•6 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 585
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0293
GENERAL ADMINISTRATIVE DIVISION ) Re Confidential Applicant
And
Executive Director, Social Security Appeals Tribunal
First Respondent
And
Confidential
Other Party
DECISION
Tribunal Senior Member A K Britton Date6 August 2010
PlaceSydney
Decision The decision of the Social Security Appeals Tribunal dated 9 December 2009 is set aside, and the Tribunal substitutes a decision that the applicant’s percentage of care for the period 21 November 2008 to 22 January 2009 is 34%, and the mother’s percentage 66%; and that from 23 January 2009, the applicant’s percentage of care is 50%, and the mother’s percentage is 50%. ....................[SGD].................
Senior Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
CATCHWORDS
CHILD SUPPORT – Percentage of care
Child Support (Assessment) Act 1989 (Cth) — ss 48, 50, 75
Child Support (Registration and Collection) Act 1988 (Cth) — ss 99, 103VA, 110X
Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth)
REASONS FOR DECISION
Senior Member A K Britton 1. The applicant seeks review of a “percentage of care” decision made by the Registrar of the Child Support Agency under the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) and affirmed by the SSAT. A “percentage of care” decision is central to the amount of financial support (if any) a parent is required to provide to the other parent, if they provide care to the child, and any non-parent carer of their child under the Assessment Act.
2. The applicant and his former wife separated in October 2008. They agree that since separation each has provided care to the only child of that relationship. However they have been unable to agree on the percentage of care each has provided. On 21 November 2008 the mother lodged an application for a child support assessment with the Child Support Agency. As there was no agreement between the applicant and his former wife when that application was lodged, the Registrar determined their respective percentages of care: s 50 of the Assessment Act. The applicant contends that the Registrar erred by deciding that his percentage of care was less than 50%.
3. Section 110X of the Child Support (Registration and Collection) Act 1988 (“the Registration and Collection Act”) makes it an offence to publish any account of these proceedings that identifies a party to the proceedings (other than the Registrar), or any other person related to a party to the proceedings. Accordingly in these reasons I have not included any details that could identify the applicant or anyone else, other than the Registrar. In these reasons I will refer to the applicant’s former wife as “the mother”, and to their child as “the child”.
Participation in the procceedings
4. The only person to participate in these proceedings was the applicant. The Registrar of the AAT sent a notice to the mother advising that the application had been listed for hearing for 26 July 2010. When contacted by my Associate a few days before the scheduled hearing date, the mother advised that she had not received the hearing notice and had recently changed address. She advised that in any event, she did not wish to attend the hearing, and that in her opinion the SSAT had made the correct decision.
5. Being satisfied that the mother was notified of the hearing, I decided to proceed to determine the application for review in her absence.
Statutory framework
6. Central to the statutory formula used to assess the annual rate (if any) of child support payable by a parent is the concept of “percentage of care”. Where there is no agreement, plan or order, the Registrar must determine the percentage (if any) of care of a child that a parent, or, non-parent carer of the child, is likely to have during the relevant period: s 50 of the Assessment Act. A person's percentage of care for a day in a child support period is the percentage of care that the person is likely to have during a 12 month period, commencing from the date an application is made for a person to be assessed in respect of the costs of a child, or else, the day any one of the six events listed in s 48(1)(b) occurs: s 48(1) of the Assessment Act. Generally, a person's percentage of care is worked out based on the number of nights that the child is likely to be in the care of the person during the care period: s 48(2) of the Assessment Act.
7. Prior to 1 July 2010, s 80 of the Registration and Collection Act permitted the carer or liable parent to lodge an objection to a percentage of care decision with the Registrar. The Registrar was required to consider any objection and either disallow it or allow it in whole or in part: s 87(1) of the Registration and Collection Act. The liable parent or carer may apply to the SSAT for review of the Registrar’s decision made under s 87: s 89 of the Registration and Collection Act. A party to proceedings before the SSAT may appeal that Tribunal’s decision to the AAT: s 103VA(1) of the Registration and Collection Act.
8. The Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (No. 65) amended the Registration and Collection Act and the Assessment Act. Schedule 2 of the amending Act commenced operation on 1 July 2010: Amendment Act, s 2. Item 101 of Schedule 2 provides:
(1) This item applies if:
(a) before the commencement day, a person's percentage of care for a child during a care period has been determined (the existing care determination ) under Division 4 of Part 5 of the Assessment Act; and
(b) the person's percentage of care under the existing care determination applies immediately before the commencement day.
(2) The existing care determination is taken to have been revoked immediately before the commencement day.
(3) The Registrar is taken, on the commencement day, to have determined (the new care determination ) under section 49 or 50 of the Assessment Act, as inserted by this Act, a percentage that is equal to the person's percentage of care under the existing care determination to be the person's percentage of care for the child during the care period.
9. In this matter, the care determination made under s 50 of the Assessment Act in December 2008 was subject to review by a Registrar acting under s 87 of the Registration and Collection Act in May 2009. Therefore that decision is taken is to have been revoked and substituted with a decision made under s 50 of the Assessment Act as amended.
Background to decsion under review
10. On 11 December 2008, the Registrar made a percentage of care decision in the following terms:
Assessment period: 21 November 2008 to 20 February 2010
Care percentages: Applicant 28%
Mother 72%
11. The Registrar did not give reasons for that decision or identify the information relied upon to calculate the above percentages. It would appear from the section 37 [Administrative Appeals Act 1975 (Cth)] documents that the calculations were based on information provided to the Agency by the mother, which was to the effect that over a 12 month period the child would be in her care for 261 nights and in the care of applicant for 104 nights (section 37 documents, p 37).
12. Following that assessment each of the parties contacted the Registrar and provided conflicting information. A file note made by an officer of the Agency on 11 December 2008 recorded that the applicant claimed that he had care of the child “every Tuesday and Thursday and two nights every second weekend”. A file note made on the same day records that the mother claimed that the applicant had the care of the child for only two nights a week.
13. A file note made on 22 December 2008 following a phone conversation with the mother recorded:
[Mother] stated that care up until now has been 2 days a week
[Applicant] has not been taking the child on the weekend
…
[Mother ] will fax in supporting documents
14. On 8 January 2009, the Registrar wrote to the parties and advised that the care percentages had been varied for the period from 11 December 2008. Child support assessments were issued in the following terms:
Assessment period: 21 November 2008 to 10 December 2008
Care percentages: Applicant 28%
Mother 72%
Assessment period: 11 December 2008 to 20 February 2010
Care percentages: Applicant 42%
Mother 58%
15. As is apparent, this revised assessment increased the applicant’s percentage of care to 42% (from 28%) for the period, 11 December 2008 to 20 February 2010 and preserved the calculation made for the earlier period.
16. The parties were not provided with reasons for this revised assessment. In a file note made on 8 January 2009 an officer of the Agency wrote:
Based on clear evidence provided by both parents
There is a clear pattern of 6 nights care of [the child] by applicant per fortnight
I am changing the care to 156 nights to applicant
17. The “clear evidence” referred to in the file note appears to be conflicting diary entries provided by the applicant and the mother (section 37 documents T 7, pp 98 & 99). I will return to consider this material.
18. On 22 January 2009, the applicant emailed the Agency objecting to the 8 January 2009 decision claiming that the care was “50/50:
My care consists of Tuesday, Thursday and every second Friday, Saturday and Sunday and returning [the child] to school on the Monday morning
19. In that email the applicant referred to “the decision made by the CSA… [d]ated 8/1/09 and received 12/1/09”. It is unclear whether the objection was directed towards the assessment for the period, 21 November 2008 — 10 December 2008, or, 11 December 2008 — 20 February 2010, or both.
20. Throughout the early part of 2009 the parties sought to resolve their differences but were unsuccessful. On 22 March 2009 the applicant lodged a formal objection against the 8 January 2009 decision. The Registrar granted leave for that application to be made out of time.
21. On 22 May 2009, a delegate of the Registrar decided to allow the applicant’s objection and decided:
Assessment period: 21 November 2008 to 10 December 2009
Care percentages: Applicant 35%
Mother 65%
22. As is apparent, in overall terms, that assessment was less favourable to the applicant as it reduced his percentage of care from 42% to 35% for the bulk of the period covered by the earlier assessment, that is, from 11 December 2008.
23. In her reasons for decision the Registrar’s delegate wrote that the percentages were based on the assumption that the care between the applicant and the mother was “shared” — i.e. 234 nights (the mother) and 131 nights (the applicant). The delegate stated that in making that decision she had regard to:
Statements provided by the applicant’s mother, his brother’s girlfriend and the director of the child care centre that the subject child attended
A care calendar completed by each party
24. It is unclear from the decision what period was covered by the revised assessment. In her reasons for decision the delegate stated that she was required to calculate the percentage of care of the child for the period, 21 November 2008 to 20 November 2009. However she concluded that:
The care of [the child] has been updated to reflect Shared care (234 nights to [the mother] and 131 nights to [the applicant]) for the period 21 November to 10 December 2008. [emphasis added]
25. From the information provided it is not possible to say whether the decision to apply the revised percentage to the limited period, 21 November to 10 December 2008, was a mistake or a deliberate decision. It also appears that the delegate left untouched the calculation made on 8 January 2009 in relation to the period from 11 December 2008.
26. On 12 August 2009, the Registrar made two further decisions:
Assessment period: 11 December 2008 – 31 August 2009
Care percentages: Applicant 42% (previously 35% to 10 December 2009)
Mother 58% (previously 35% to 10 December 2009)
Assessment period: 1 September 2009 – 30 November 2010
Care percentages: Applicant 42%
Mother 58%
27. There is nothing in the Agency’s file to indicate why that revised assessment was made or the information on which it was based.
28. On 25 August 2009 further revisions were made:
Assessment period: 11 December 2008 – 13 July 2009
Care percentages: Applicant 42%
Mother 58%
Assessment period: 1 September 2009 – 30 November 2010
Care percentages: Applicant 49%
Mother 51%
29. It is not clear why the intervening period, 14 July 2009 to 1 September 2009, was omitted from the 25 August 2009 decision.
30. On review the SSAT affirmed “the decision under review”.
What is the reviewbable decision?
31. As a first step to conducting this review I must identify the reviewable decision. This is not a straightforward task, given that multiple decisions have been made.
32. Where, as in this case, the Registrar varies or sets aside a decision after an application has been made to the SSAT for review, but before the determination of the review, the application for review is to be treated as if it were an application for review of the decision as varied or, where the decision is set aside, the new decision: ss 99(2) and 99(3) of the Registration and Collection Act.
33. The applicant lodged an application for review with the SSAT on 4 August 2009. Shortly after that application was made the Registrar varied the earlier objection decision and, on 25 August 2009, varied it again.
34. The SSAT made its decision on 9 December 2009. The SSAT mistakenly identified the reviewable decision as the objection decision made on 22 May 2009. By the operation of ss 99(2) and 99(3) of the Registration and Collection Act the SSAT was required to review the decision made by the Registrar on 25 August 2009.
35. Section 103VA of the Registration and Collection Act gives the AAT the power to review a decision of the SSAT and is in the following terms:
103VA Appeal to AAT on decisions relating to percentages of care
(1) A party to a review aggrieved by a decision of the SSAT under this Part relating to a party’s percentage of care for a child may apply to the AAT for review of the decision.
36. Where, as in this case, the SSAT fails to properly identify the reviewable decision, the AAT in my view, is not restricted to reviewing “the decision” that was the subject of the SSAT’s decision. Rather the AAT must review the decision that the SSAT was required to review — in this case, the decision made by the Registrar on 25 August 2009.
37. In addition, I must also decide on the percentage of care for the remaining period which was the subject of the applicant’s objection, but was not addressed by the 25 August 2009 decision — that is, the period 21 November 2008 to 10 December 2008.
Correct and preferable decision
38. As will be recalled, the Registrar made the following percentage of care decision on 25 August 2009:
Assessment period: 11 December 2008 – 13 July 2009
Care percentages: Applicant 42%
Mother 58%
Assessment period: 1 September 2009 – 30 November 2010
Care percentages: Applicant 49%
Mother 51%
39. It would appear that that the revised calculation for the period, 1 September 2009 – 30 November 2010, was made on the basis of advice provided by the parties that on or about 14 July 2009 agreement had been reached that the care of the child would be equally shared. A file note made on 21 August 2009 recorded:
[Applicant] rang to inform CSA of a change in care for [subject child].
Applicant informed me that he has care of [subject child] every Friday through to Monday every fortnight (3 nights x 26 = 78).
Also every Tues and Thurs 104 nights
This totals 182 nights which is exactly half
Informed customer if the other party does not agree then he will be required to submit evidence
40. However, it is unclear how the Registrar calculated the relevant percentage for the earlier period. This calculation increased the applicant’s percentage of care from 35% to 42%
41. Period from 14 July 2009 Where the decision maker is satisfied that an oral agreement between the parents has been made and that agreement allows the percentage to be determined, the percentage (if any) of care of a child is determined in accordance with that agreement: s 49(b)(i) of the Assessment Act.
42. The applicant testified in these proceedings that on 14 July 2009 he reached agreement with the mother that they shared the care of the child equally. File notes made by Agency officers following conversations with both parents around that time are consistent with that claim.
43. Accordingly, I am satisfied that the care percentages for each parent for the period from 14 July 2009 is 50%.
44. 21 November 2008 – 13 July 2009 It appears that the parties continue to dispute the level of care each provided to the child during this period.
45. The applicant testified in these proceedings that since he and the mother separated, the child usually stayed with him on Tuesday and Thursday nights and every second Friday, Saturday and Sunday. The first reference in the section 37 documents to the applicant making that claim is an email to the Agency dated 22 January 2009, in which he claimed that the care was “50/50”:
My care consists of Tuesday, Thursday and every second Friday, Saturday and Sunday night.
46. Earlier records indicate that the applicant had claimed that he had care of the child “every Tuesday and Thursday and two nights every second weekend”. A file note made on 11 December 2008 records the mother as claiming that the applicant had the care of the child for only two nights a week.
47. At the request of the Agency, each party provided a list of dates they claimed the child had been in the care of the applicant. The information provided by the mother spanned the period 20 August 2008 to 23 December 2008; that provided by the applicant, spanned the period 25 November 2008 to 6 January 2009. There is a discrepancy of six days for the period both parties provided dates — 25 November 2008 to 23 December 2008. The applicant claims that he had care of the child for 15 days during that period, while the mother claims that it was only nine days.
48. In addition, the applicant provided the Agency with statements in support prepared by his mother, a family friend, and the director of the child care centre attended by the child. The statement provided by the centre director, while generally consistent with the applicant’s claim that he played an active role in the care of the child, is of limited assistance as it lacks specificity. The statements provided by the applicant’s mother and family friend corroborate the applicant’s claim, but only in relation to two of the six disputed dates — 7 and 21 December 2008. Somewhat perplexingly, each claim that they saw the applicant with the child on a number of days on which, according to the applicant, the child was in the care of the mother.
49. The evidentiary difficulty all this presents is that I have sworn evidence from the applicant which is supported, to a certain extent, by other evidence. The mother declined to appear at the Tribunal hearing. Both the applicant and the mother made certain assertions to the Agency. However, these were not in the form of sworn evidence, and the mother does not appear to have offered any corroborative material in relation to her own calculations.
50. Both the Agency and the SSAT appear to have adopted a default position that the mother’s claims are more likely than not to be more accurate than the applicant’s, but have not provided a basis for preferring her evidence to his. The decision-making processes at both stages appear to be based on guesswork rather than cogent evidence. This is, obviously, an unsatisfactory state of affairs which is unfair to both the mother (if she is telling the truth) and the applicant (if he is).
51. It may be that both parents have honestly sought to recollect the pattern of care but one or the other has made an honest mistake. Given the paucity of reliable evidence it is very difficult for this Tribunal to make the appropriate findings of fact.
52. Doing the best I can with the limited material before me, it seems to me more likely than not that for the period, 21 November 2008 to 23 December 2008 (32 days), the applicant had care of the child for 11 nights. That finding is based on the applicant’s evidence where corroborated, . There is nothing to indicate that this pattern of care did not continue until 22 January 2009. Annualised and rounded down to the nearest whole number as required by s 48(3)(b) of the Assessment Act, this translates to a percentage of care of 34%.
53. As noted, the applicant advised the Agency on 22 January 2009 that he had care of the child for seven nights per fortnight (i.e. every Tuesday and Thursday and every second Friday, Saturday and Sunday). He gave sworn evidence to that effect. There is nothing in the material before me to contradict that claim. The mother was contacted after the objection decision was lodged but did not provide any additional information to the Agency.
54. In the absence of any material which contradicts that evidence, I find that the applicant had care of the child for seven nights per fortnight from 23 January 2009. His percentage of care is therefore 50% for that period.
Decision
55. In summary I find that the applicant’s percentage of care for the period 21 November 2008 to 22 January 2009, is 34%; and, from 23 January 2009, 50%. It follows that I must set aside the decision of the SSAT.
Agency Decision making
56. Making percentage of care decisions can be a difficult task. This is especially so where, as in this matter, the parties dispute the amount of care each provides and the relationship between them is strained. I do not doubt that the Agency’s investigative resources are fully stretched. Nonetheless, this review points to a number of shortcomings in its decision-making processes which, in my opinion, warrant consideration.
57. I recommend that in the interests of good decision making, the Agency review the type of information that is requested from the parties about the level of care when that is in dispute. I would also suggest that where, as in this case, the decision required to be reviewed by the SSAT is not the objection decision but a subsequent decision made under s 75 of the Assessment Act that written reasons be provided for the later decision. This would allow both review tribunals and, importantly, the parties, to understand the basis for that decision.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.
Signed:....................................................................................
Associate to Senior Member BrittonDate of Hearing: 26 July 2010
Date of Decision: 6 August 2010
The Applicant appeared in person.
No appearance for the Other Party.
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