Confidential and Child Support Registrar Confidential OTHER PARTY
[2012] AATA 245
•18 April 2012
[2012] AATA 245
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2180
Re
Confidential
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Confidential
OTHER PARTY
DECISION
Tribunal Senior Member CR Walsh
Date 18 April 2012 Place Perth Decision Summary
In accordance with section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision of the Social Security Appeals Tribunal, dated 6 May 2011, and remits the matter to the Child Support Registrar for reconsideration in accordance with the following Reasons for Decision.
..(sgs) C R Walsh.................
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 – Applicant liable to pay child support to Other Party in respect of their son - percentage of care of son disputed by Applicant – Applicant objected by telephone to a decision of Child Support Registrar to refuse to increase her percentage of care – Applicant’s telephone objection made more than 28 days after notification of the decision - Applicant did not lodge a written objection with Registrar within 28 days after notification of decision – Applicant made application to Registrar by telephone for an extension of time in which to lodge objection – Extension of time granted - Consideration of relevant provisions of Child Support (Registration and Collection) Act 1988 both before and after amendment by Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010, effective 1 July 2010 – Objection decision disallowed – Objection decision invalid – No change of care should have been recorded for the relevant period since Applicant had less than 14% care of the child in that period - Decision under review set aside and matter remitted to the Child Support Registrar for reconsideration
Legislation
Child Support (Assessment) Act 1989 - section 5(2) and (3) – section 12 – section 48 – section 50 – section 75
Child Support (Registration and Collection) Act 1988 – section 80 – section 80A – section 81 – section 82 – section 83 – section 87
Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 – section 2 – section 73 – section 74 – section 76
Cases
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307
Hospital Benefit Fund (WA) Inc v Minister for Health, Housing and Community Services (1992) 28 ALD 50; 111 ALR 1
Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72
Secondary Materials
Child Support Agency’s Guide – Part 2.2.1 - Part 4.1.2 – Part 4.1.4 – Part 4.1.5
REASONS FOR DECISION
Senior Member CR Walsh
18 April 2012
INTRODUCTION
The Applicant seeks a review of the decision of the Social Security Appeals Tribunal (SSAT), dated 6 May 2011, which affirmed the decision of a Child Support Agency (CSA) objections officer, dated 5 January 2011, to disallow the Applicant’s objection by telephone to the decision of made by a CSA officer on 17 November 2009 to refuse to change the Applicant’s percentage of care in relation to her son for the child support assessment period 25 September 2009 to 24 September 2010.
BACKGROUND FACTS
The Applicant and the Other Party have a son. The Applicant (the son’s mother) commenced being liable to pay child support to the Other Party (the son’s father), in respect of their son (Child), on 1 January 2008.
From 1 January 2008 to 24 September 2009, the Department of Human Services, CSA recorded that the Child was in the Other Party’s care 100% of the time.
According to the CSA’s records, on 25 September 2009, the Applicant telephoned the CSA advising it that she had a greater care percentage of the Child than that recorded by the CSA. In that conversation, the Applicant told the CSA, among other things, that:
·In January 2008 the Child went to live in a caravan owned by the Other Party, the Other Party worked on the mines on a fly-in, fly-out basis and that he was only home 4 days out of 14;
·The Child was attending school and working part-time and had to buy everything for himself;
·The Child spent all of the school holidays and long weekends with the Applicant and that she was the contact person for the school; and
·She considered that she and the Other Party had ‘shared care’ of the Child because the Other Party was away for a major part of the time the Child was in his care.
As a result of that telephone call, on 29 September 2009, the CSA telephoned the Other Party to discuss care arrangements for the Child. In summary, the CSA’s records show that the Other Party told the CSA that:
·The Child had probably spent about 4 weeks with the Applicant at Christmas of the previous year, and about 10 days in July;
·He could not recall whether the Child spent 10 days with the Applicant at Easter; and
·There was a possibility that the Child may go to stay with the Applicant on 7 October 2009 and that the Child was expected to resume school on 12 October 2009.
The CSA advised the Other Party that as the percentage care of the Child was in dispute, evidence from both the Applicant and the Other Party may be needed.
On or about 1 October 2009, the CSA telephoned the Other Party’s authorised representative and new wife (Representative) to discuss care arrangements for the Child. The CSA’s records indicate that the Representative advised the CSA that:
·The Child was expected to be in the Applicant's care from 8 to 11 October 2009;
·The previous Christmas, the Child spent about one week with the Applicant and then lived independently for the remainder of the school holidays, and had been working and earning $1,000 per week and was therefore ‘self-supporting’;
·She could not recall whether the Child had spent time with the Applicant in the April school holidays, but that he might have spent 2 weeks with her;
·The Child went to stay with the Applicant in the middle of the second week of the July school holidays and he stayed with the Applicant for the first week of the school term because the Applicant had had an operation and needed assistance from the Child;
·They had not had any discussion about the Child’s care and that there was no formal arrangement in place. The Child travelled by bus to see the Applicant and the fare was paid for by the Applicant. The Child was undergoing a traineeship through Year 11 at school and was hoping to get an apprenticeship or to go into the Army. If the Child was successful with either of those, he would spend less time with the Applicant;
·The Child was, at that particular time, living in a caravan owned by her and the Other Party while she and the Other Party built an extension to their home that would include a room for the Child and that all of the Child’s expenses were paid for by her and the Other Party; and
·She and the Other Party had no evidence to support the above information.
On 2 October 2009, a CSA officer again spoke to the Applicant by telephone. In summary, the Applicant informed the CSA that she had the Child in her care:
·From 18 December 2008 to 5 February 2009 and for 3 weeks in July 2009; and
·Every few weeks in between the school holidays.
On that occasion, the Applicant was told by the CSA officer that the CSA had conflicting information regarding her and the Other Party’s level of care of the Child and that the CSA needed evidence of care from both parties, such as proof of flights and bus travel.
On 12 October 2009, a CSA officer again spoke to the Other Party’s Representative. She said that the Applicant had care of the Child for 14 nights over Christmas, 6 nights at Easter, 12 nights in July and 3 nights in October. The Representative was asked to provide evidence, such as a statutory declaration from friends or neighbour, within 7 days.
On 12 October 2009, the CSA sent a letter to the Applicant requesting that evidence be provided by her within 7 days to support her claims regarding her care of the Child. That letter stated, in part:
“The number of nights the child will stay with you during the year affects how much maintenance is payable under the assessment.
As you advised us that you have 84 nights of care of [the Child] per year, as this has been disputed by [the Other Party], it is requested that you provide evidence to confirm the care of your child within 7 days.
Evidence may include diary entries or evidence from third parties, Court Order, Parenting Plan or Written Agreement, Centrelink.
A decision will then be made based on the information and evidence provided by each parents to substantiate their claims.”
Neither the Applicant nor the Other Party (personally or through his Representative) provided the requested evidence to the CSA by the required dates.
Following the above discussions with the Applicant and the Other Party, and his Representative, on 17 November 2009 the Registrar decided to refuse to change the care percentages it had recorded for the Child. That is, the Registrar continued to record that the Applicant cared for the Child 0% of the time and the Other Party cared for the Child 100% of the time. The Applicant and the Other Party were advised of the Registrar’s decision by letters dated 17 November 2009.
On 26 November 2009, the Applicant telephoned the CSA. According to the CSA’s record of that conversation, the Applicant told the CSA that she did not agree with the Registrar’s decision (of 17 November 2009) but that she was unable to provide evidence to support her case because she was in hospital. The CSA’s records further indicate that forms were sent to the Applicant in regard to her objection and that she was advised that “she will need to apply for an extension of time if the objection is outside of the 28days notice of decision letter.” No objection form/s was/were lodged by the Applicant with the CSA within 28 days of that date.
On 12 January 2010, during discussions with the CSA, the Applicant again complained about the CSA level of care assessment and advised that the Child was likely to be in her care for 90 nights over the next 12 months. She was informed that if the Other Party disputed the amount of care, she would need to provide the CSA with evidence of her care arrangements by 22 January 2010.
On 27 January 2010 the CSA rejected the Applicant’s claim for the reason that no evidence was received from her concerning the change in care arrangements for the Child and, therefore, that no change in child support assessment was required and advised both the Applicant and the Other Party of that decision.
The CSA’s computer records indicate that on 8 February 2010 the Applicant contacted it to lodge a care claim in respect of the Child. The CSA requested that the Applicant provide it with evidence of her care arrangements by 19 February 2010. On 2 March 2010 the CSA decided not to change the Applicant’s percentage of care as no evidence of her care arrangements of the Child was received by it by the required date and it advised both parties of its decision.
On 27 October 2010 the CSA made a decision, at the request of the Other Party, to end the Applicant’s child support liability with respect to the Child, effective 19 October 2010, on the basis that the Child had left school and was now working.
The CSA’s records, dated 8 November 2010, note that the Applicant telephoned the CSA on 5 November 2010 and that she wished to object to the decision made by the CSA on 17 November 2009 not to change the care percentages for the Child. Those records also included the following:
“[The Applicant’s] reasons for the decision to be reconsidered are captured below:
-[the Applicant] disputes CSA’s recorded care of [the Child] since 01 January 2008 and is specifically lodging this objection in relation to our decision on 17 November 2009regarding her percentage of care of the Child and that the objection had been made outside the 28 day timeframe.”
“On or around 1 January 2008 [the Child] and I had an argument and [the Child] wanted to move out and live with his father.
His father picked [the Child] up on 1 or 2 January 2008.
In mid-January [the Child] went camping with family and friends for a couple of weeks.
[The Child] maintained verbal contact with me and came to stay with me for the majority of each of the school holidays in 2008, long weekends, and some extra weekends.
Over the Christmas/ New Year period of 2008/2009, [the Child] returned to my care on 18 December 2008 and stayed in my care until February 2009.
In 2009 [the Child] maintained the same pattern of care, coming to stay with me for school holidays, long weekends and some extra weekends with the exception of July 2009.
In July 2009 I became seriously ill and [the Child] stayed on after the end of the school holidays and was schooled at home until sometime in early August when he returned to his fathers.
[The Child] finished the 2009 school year in mid-December and left his father’s and has not been back for maybe a couple of nights since.
In relation to [the Child’s] living circumstances I have always maintained contact and provided support and guidance. I was a contact for both schools [the Child] attended during this time.
During the time [the Child] stayed at [the Other Party’s] his father, [the Other Party] was working away in the mines on an 8 out of 14 days roster. [The Child] slept in a caravan on [the Other Party’s] property near the family home of [the Other Party], his new wife and [the Child’s] two half siblings.
[The Child] experienced some attendance issues at school in 2008 and 2009 and I dealt with the schools about these issues.
[The Applicant] has agreed that the objection has been captured correctly.
Kevin
HOB OBJ
CRQI”The Applicant’s objection to the CSA’a decision (dated 17 November 2009), which was made by telephone on 5 November 2010, was made more than 28 days after the original decision was made. The CSA’s records, dated 8 November 2010, show that in her telephone conversation with the CSA officer on 5 November 2010, the Applicant cited the following ‘special circumstances’ in support of her late objection by telephone:
“I have repeatedly been in contact or attempted contact with CSA objecting to the care
record since the decision of January 2008.
I do not believe that CSA has listened to my issues, taken my personal situation into
account or assisted me understand the process I had to undertake to make a proper
objection.
I have had major health issues since January 2009 that have meant I have not been able to
commit more time and effort than those contacts I have made with CSA attempting to
object.
When I am not in hospital I have to spend nearly all my spare mental and physical
resources on catching up with work, study and other commitments such as my
grandparents who died during this period.
I have only now been able to spend the time and effort required to progress my objection
as every time I try to talk to CSA it is even more arduous than the last time.
Additional Information:
-[The Applicant] disputes that CSA has had an accurate record for the care of [the Child] since 1 January 2008. [The Applicant] is aware that if she wishes to object to the care decision of 31 January 2008 she will have to submit an objection in writing and also request an extension of time to do so. This is due to the fact that that legislative changes that took effect on 1 July 2010 only allow for objections to ‘care percentage decisions’ to be taken over the phone, prior to 1 July 2008 CSA did not make care decisions as a “percentage” but as “nights of care”.
……….
Kevin Collidge
Objections Officer
General Objections Hobart”On 16 November 2010, the CSA wrote to the Applicant acknowledging her verbal objection of 5 October 2010 to its decision dated 17 November 2009. That letter also stated:
“CSA officer Kevin will consider your objection and any supporting information you and [the Other Party] provide. We will write to you and let you know the result of your objection. The due date for this decision is 4 January 2010.
Until then, your child support payments remain the same.
At your request we have reproduced a full copy of your objection and special circumstances application below.” [Emphasis added]
Also on 16 November, the CSA sent a letter to the Other Party advising him of the Applicant's telephone objection (on 5 November 2010) and inviting him to respond. The CSA received no response to that letter from the Other Party.
On 5 January 2011 a CSA officer telephoned the Applicant to follow up on the whereabouts of the evidence that the Applicant said that she would provide in support of her objection. According to the CSA’s records of that conversation:
“After some discussion it was established that she would be unable to provide any evidence in a reasonable timeframe given the due date of the objection.”
Consequently, the CSA officer decided to proceed to make a decision on the Applicant’s objection in the absence of further evidence from the parties.
As a result, on 5 January 2011, a CSA objections officer, a delegate of the Child Support Registrar (Registrar), disallowed the Applicant’s objection by telephone (made on 5 November 2010) to the CSA’s decision of 17 November 2009 not to change her percentage of care for the Child. The Applicant and the Other Party were advised of the objection decision by letters dated 20 January 2011.
On 27 January 2011, the Applicant lodged an application for review of the objection officer's decision (of 5 January 2011) with the SSAT.
The Applicant provided the SSAT with a calendar setting out the periods in which she cared for the Child during the child support assessment period 25 September 2009 to 24 September 2010. From that calendar, the SSAT identified that the Applicant cared for the Child in the following periods:
“
·6 October 2009 to 11 October 2009
·13 November 2009 to 15 November 2009
·27 December 2009 to 4 January 2010
·12 January 2010 to 17 January 2010
·21 January 2010 to 30 January 2010
·4 February 2010 to 7 February 2010
·27 April 2010 to 30 April 2010
·1 May 2010 to 3 May 2010
·7 May 2010 to 11 May 2010.”
On 6 May 2011, the SSAT affirmed the decision of the objections officer (dated 5 January 2011). In reaching this decision, the SSAT stated:
“14………In applying paragraph 75(2) of the [Child Support (Assessment) Act 1989] the Tribunal determined that even though [the Applicant’s] care percentage of [the Child] increased by more than 7.1% in the period this increase did not affect the annual rate of child support payable because the care percentage had not reached 14%. Consequently the Tribunal found it could not amend the child care assessment.
………….
18……….in the period 25 September 2009 to 24 September 2010 [the Applicant] has less than 14% of the care for [the Child] and that this percentage of care does not meet the requirements of the Act to change the percentage of care used in the assessment.”
The Applicant seeks a review of the SSAT’s decision by this Tribunal.
TIMING OF OBJECTION TO THE DECISION BY THE APPLICANT
Before the Tribunal, the Respondent raised the issue of whether the CSA objections officer had the power to make the objection decision (dated 5 January 2011) since the Applicant made her verbal objection to the original decision of the CSA (dated 17 November 2009) on 5 November 2010, being more than 28 days after the date of the original decision and because no written decision, granting the Applicant an extension of time in which to object, was made by the CSA before the objection decision was made. This issue is considered below.
The Child Support (Registration and Collection) Act 1988, (Registration and Collection Act) came into operation on 1 June 1988 and has subsequently been amended by numerous Acts. Relevant to this application is the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (Amendment Act) which, among other things, introduced new rules for “care percentage decisions”, commencing 1 July 2010, including new rules for objections against such decisions.
The provisions of the Registration and Collections Act which are most relevant to this application are contained in Part VII of that Act, titled “Internal objection procedures for certain decisions”.
Before being amended by the Amendment Act (effective 1 July 2010), section 80 of the titled “Decisions against which objections may be lodged”, detailed decisions against which objections may be lodged by a person. Section 80(1) stated:
“A person may lodge with the Registrar an objection in writing to a decision of the Registrar…” [Emphasis added]
The CSA’s “Guide” is its technical resource, setting out its guide to the administration of the child support scheme. The legislative requirement (in section 80(1) of the Registration and Collection Act, as it read before 1 July 2010), that an objection be “in writing”, is reflected in Part 4.1.4 of the CSA’s Guide, titled “What is a valid objection?”, which states:
“
· A valid objection must…..
· Be in writing from a person aggrieved by the decision.” [Emphasis added]
However, ssection 80 of the Registration and Collection Act was amended by the Amendment Act to specifically exclude objections to “care percentage decisions”, effective 1 July 2010, from the general rules applicable to objections (including the rule that objections must be “in writing”). Section 80(6), which was inserted into the Registration and Collection Act by the Amendment Act, states:
“Section does not apply to care percentage decisions
(6) This section does not apply to a decision that is a care percentage decision.”
Consequently, commencing 1 July 2010 there was no longer a requirement that objections to “care percentage decisions” be made by a person “in writing”. That is, they could also be made verbally, e.g. by telephone. This is reflected in Part 4.1.2 of the CSA’s Guide, titled “Decisions made under the Assessment Act to which a parent may object”, which states:
“Making an objection
The objection may be made orally or in writing. Section 80(6) states that the requirements of section 80, which requires that objections to a CSA decision be made in writing, do not apply to percentage care decisions.”
The general rule on time limits for lodging objections to decisions of the Registrar is set out in section 81 of the Registration and Collection Act, titled “Time limits on lodging objections”. Prior to 1 July 2010, section 81(1) of the Registration and Collection Act read:
“(1)An objection to a decision (other than an objection to an appealable collection refusal decision) must be lodged by a person within 28 days after a notice of the decision is served on the person.”
However, following amendments to section 81(1) of the Registration and Collection Act by the Amendment Act (commencing 1 July 2010), section 81(1) reads:
“Time limits on lodging objections
(1)An objection to a decision (other than an objection to an appealable collection refusal decision or a care percentage decision) must be lodged by a person within 28 days after a notice of the decision is served on the person.” [Emphasis added]
Accordingly, effective 1 July 2010, there was no longer a 28 day time limit on making an objection against to a “care percentage decision”. This is reflected in Part 4.1.2 of the CSA’s Guide, as follows:
“Time limits on lodging objections
The standard requirement that objections to CSA decisions be lodged within 28 days of receiving notification of the decision (90 days for a person in a reciprocating jurisdiction), does not apply to care percentage objections (section 81(1)). A person may object at any time. However if the objection is made more than 28 days (or 90 days for a person in a reciprocating jurisdiction) after notification of the care percentage decision, the date of effect of an objection decision that determines a different care percentage will be identified in accordance with section 87AA.”
Section 82 of the Registration and Collection Act, titled “Applications for extensions of time”, provides that a person may apply for an extension of time in which to lodge an objection in circumstances where the 28 day objection period (in section 81(1) of the Registration and Collection Act) has lapsed, as follows:
“Applications for extensions of time
(1)A person may lodge an objection under this Part after the period for lodging such an objection has ended if, at the time of lodging the objection or a later time, the person applies to the Registrar to consider the objection despite the period ending.
(2)The application must state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection as required by section 81.
(3)The application must be made in the manner specified by the Registrar.”[Emphasis added]
Relevant to this application the Tribunal notes that no amendments were made to section 82 of the Registration and Collection Act by the Amendment Act. Further, it is noted that section 82 does not prescribe any time limit on the making of an application for an extension of time in which to lodge an objection.
Section 82(3) of the Registration and Collection Act (as set out in paragraph 38 above) states that an application for an extension of time in which to lodge an objection “must be made in the manner specified by the Registrar”. According to Part 4.1.5 of the CSA’s Guide, titled “Extensions of time to lodge objections”:
“Applying for an extension of time
If a parent does not lodge an objection within 28 days…..they can apply for an extension of time to lodge their objection (section 82(1)). The application for an extension of time can be made over the phone or in writing (section 82(3)). The parent must explain why they did not lodge the objection within 28 days…The extension of time application can be made with the objection or after the objection has been lodged.”
Section 83 of the Registration and Collection Act, titled “Consideration of applications for extensions of time for lodging objections”, states:
“Consideration of applications for extensions of time for lodging objections
(1)If an application is sent to the Registrar under section 82 in relation to an objection under this Part, the Registrar must:
(a) consider the application; and
(b) within 60 days after the application is received by the Registrar:
(i) either grant or refuse the application; and
………….
(3)The Registrar must serve notice in writing of the decision on the person who made the application.
(4) The notice must include, or be accompanied by:
(a) the reasons for the decision;
…..
(5)A contravention of subsection (4) in relation to the decision does not affect the validity of the decision.
….” [Emphasis added]
Relevant to this application the Tribunal notes that no amendments were made to section 83 of the Registration and Collection Act by the Amendment Act.
Before 1 July 2010, section 87 of the Registration and Collection Act, titled “Consideration of objections by Registrar”, read:
“(1) If an objection is lodged with the Registrar under this Part, the Registrar must:
(a)consider the objection and any notice lodged with the Registrar under section 86 in relation to the objection. and:
(b) within 60 days after the objection is lodged with the Registrar, either:
(i) disallow the objection; or
(ii) allow it in whole or in part.
(2) The Registrar must serve notice in writing of the decision on:
(a)The person who lodged the objection; and
(b)Each other person who was entitled to be served a copy of the objection and the accompanying documents under section 85.
(3)A notice served on a person under subsection (2) must include, or be accompanied by:
(a) the reasons for the decision; …..”
Section 87 of the Registration and Collection Act, titled “Consideration of Objections by Registrar”, states, in part:
“(1)If an objection is lodged with the Registrar under this Part [i.e. Part VII], the Registrar must:
(a) consider the objection…..; and
(b) within 60 days after the objection is lodged with the Registrar, either:
(i) disallow the objection; or
(ii) allow it in whole or in part.”
Thus, from 1 July 2010, a person could object to a “care percentage decision” in writing or verbally at any time. It follows that, from 1 July 2010, where more than 28 days after notification of the relevant “care percentage decision” have lapsed, a person need not apply to the Registrar for an extension of time in which to lodge his or her objection pursuant to section 82 of the Registration and Collection Act. Further, in such circumstances, the Registrar is not required to satisfy the written notification requirements in section 83 of the Registration and Collection Act. This is clear from the opening words in section 83(1) which provide “If an application is sent to the Registrar under section 82…..” This is because, commencing 1 July 2010, a person making an objection to “care percentage decision” is not subject to the normal 28 day time limit in which to make an objection (by virtue of the excepting words in section 81(1)) such that he or she need not apply to the Registrar for an extension of time in which to object to the decision pursuant to section 82 of the Registration and Collection Act (i.e. an objection to a “care percentage decision” being able to be made at any time, in writing or verbally, by the relevant person). That is, in this situation there would be no extension application for the Registrar to consider and decide on.
However, the situation under the Registration and Collection Act, as it read before 1 July 2010, is quite different. That is, before being amended by the Amendment Act, the Registration and Collection Act required an objection to a “care percentage decision” to be made “in writing” (section 80(1) and Part 4.1.4 of the CSA’s Guide) and within 28 days of the person being notified of the decision (section 81(1) and Part 4.1.2 of the CSA’s Guide). If a person wished to make an objection after the 28 day objection period had lapsed, they had to make an application to the Registrar, over the phone or in writing (section 82(3)), for an extension of time in which to object (section 82). The Registrar then had 60 days in which to consider the application and either grant or refuse it, with reasons (section 83).
It is the law in force as at the date of the original decision that the Tribunal must consider: Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 939-945. Consequently, in this application the Tribunal is required to consider and apply the relevant provisions of the Registration and Collection Act as in force as at 17 November 2009, being the date of the original decision of the CSA. This is supported by the fact that the relevant provisions in Schedule 2 of the Amendment Act, as described above, are not expressed to have retrospective effect. Rather, Schedule 2 of the Amendment Act is described (in the table contained in section 2 of the Amendment Act) as commencing 1 July 2010.
As set out above (in the Background Facts), on 17 November 2009 the CSA decided not to increase the Applicant’s percentage of care of the Child. The evidence before the Tribunal is that the Applicant made no written objection against the decision of 17 November 2009, as required by section 80(1) of the Registration and Collection Act, as it applied before 1 July 2010. Rather, according to the CSA’s records, on 26 November 2009 the Applicant telephoned the CSA to say that she disagreed with its care percentage decision but was unable to provide evidence to support her case as she was in hospital. The CSA’s records show that this call was followed by a number of further calls being made by the Applicant to the CSA complaining about its assessment of her level of care for the Child. There is no evidence of the Applicant objecting specifically to the CSA’s decision of 17 November 2009 in any of those calls. Rather, the CSA’s records indicate that it was not until 5 November 2010 that the Applicant telephoned the CSA to say that she wished to object to the Registrar’s decision of 17 November 2009. A record of the content of that telephone objection is set out in the Background Facts above (at paragraph 19).
The Applicant’s objection by telephone on 5 November 2010 was clearly made more than 28 days after being notified of the CSA’s decision of 17 November 2009, as required by section 81(1) of the Registration and Collection Act, as it applied before 1 July 2010. However, when the Applicant telephoned the CSA on 5 November 2010 to verbally object to the CSA’s decision of 17 November 2009 the CSA’s records show that she cited various ‘special circumstances’ as the reason for her late objection (refer to paragraph 20 above). As set out above, section 82 of the Registration and Collection Act provides that a person may apply to the Registrar, in writing or over the phone (section 82(3) and Part 4.1.5 of the CSA’s Guide) for an extension of time in which to lodge an objection (i.e. in circumstances where the 28 day period in section 81(1) had lapsed), stating “….fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection as required by section 81.” As noted above, section 82 of the Registration and Collection Act does not prescribe any time limit on a person making an application for an extension of time in which to make an objection. Consequently, as a matter of law, there was nothing to prevent the Applicant from applying to the CSA by telephone for an extension of time in which to make an objection to the CSA’s decision (dated 17 November 2009) on 5 November 2010.
The Registrar was then required by section 83 of the Registration and Collection Act to consider the Applicant’s 5 November 2010 telephone application for an extension of time to lodge an objection and, within 60 days after receiving that application, either grant or refuse it and provide the Applicant with a notice of and reasons for his decision concerning the extension application. As detailed in the Background Facts (in paragraph 21 above), the CSA wrote to the Applicant on 16 November 2010 acknowledging her verbal objection of 5 November 2010 (to its decision dated 17 November 2009) and advised the Applicant that “CSA officer Kevin will consider your objection and any supporting information you and [the Other Party] provide. We will write to you and let you know the result of your objection. The due date for this decision is 4 January 2010.”The Tribunal considers that this letter is sufficient evidence to establish that the CSA’s officer (a delegate of the Registrar) considered the Applicant’s 5 November 2010 telephone application for an extension of time in which to make an objection to the CSA’a care percentage decision of 17 November 2009 (as he is required to pursuant to section 83(1)(a) of the Registration and Collection Act), decided to grant her that extension (pursuant to section 83(1)(b) of the Registration and Collection Act) and notified the Applicant of his extension application decision ‘in writing’, as required by section 83(3) of the Registration and Collection Act. Although the letter of 16 November 2010 was not accompanied by reasons for the CSA officer granting the Applicant the extension or a statement, as required by section 83(4)(a) and (b) of the Registration and Collection Act, the Tribunal notes that section 83(5) of the Registration and Collection Act provides that a decision concerning an extension application is not invalidated by a contravention of section 83(4).
The real difficulty in this application is that whilst the Applicant was entitled (pursuant to section 82 of the Registration and Collection Act) to apply by telephone on 5 November 2010 for an extension of time in which to make an objection to the CSA’s care percentage decision of 17 November 2009 and the CSA was permitted to consider and grant the Applicant that extension (pursuant to section 83 of the Registration and Collection Act), the Applicant did not then provide the CSA with an objection “in writing”, as required by section 80(1) of the Registration and Collection Act, as it applied before 1 July 2010 and at the time of original decision (being 17 November 2009). It follows that, as a matter of law, it was not open (under section 87 of the Registration and Collection Act) to the CSA’s objection officer (a delegate of the Registrar) to make the ‘objection decision’ that he did on 5 January 2011. This is because no written objection (as required by section 80(1) of the Registration and Collection Act, as it applied before 1 July 2010) was lodged by the Applicant with the CSA (Registrar) under Part VII of the Registration and Collection Act, as in force at the relevant time, in accordance with section 87 of the Registration and Collection Act. In this sense, the objection decision of the CSA dated 5 January 2011, which decision was subsequently reviewed and affirmed by the SSAT on 6 May 2011, was invalid. Consequently, the Tribunal sets aside the decision of the SSAT, dated 6 May 2011, and remits the matter to the Registrar for reconsideration in accordance with these reasons.
WHAT IS THE PERCENTAGE OF CARE OF THE CHILD PROVIDED BY THE APPLICANT IN THE PERIOD 25 SEPTEMBER 2009 TO 24 SEPTEMBER 2010?
Where, as is the case here, the Tribunal considers that an original decision reviewed by a first tier appeal body is legally wrong, and is consequently unable to be confirmed by that body, the Tribunal still has jurisdiction to review the decision following the approach adopted by the Tribunal in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 and on appeal by the Federal Court of Australia in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307.
In subsequent Full Federal Court cases, the approach adopted in Lawlor has been reaffirmed and extended: see Hospital Benefit Fund (WA) Inc. v Minister for Health, Housing and Community Services (1992) 28 ALD 50; 111 ALR 1 and Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72. In short, those cases found that the Tribunal had jurisdiction to hear an appeal, not only where the decision was defective, but also where the decision-maker was not empowered to make the decision. Adopting the Lawlor approach, the Tribunal considers that it has jurisdiction in this application to review the CSA’s decision under review.
The legislation relevant to this aspect of this application is contained in the Child Support (Assessment) Act 1989 (Assessment Act).
Section 48 of the Assessment Act, titled “Working out percentage of care”, relates to a person's ‘percentage of care’. Section 48(1) of the Assessment Act (as in force at 1 July 2008) states:
“(1)A person's percentage of care for a child for a day in a child support period is the percentage of care of the child that the person is likely to have during the period (the care period) of 12 months from:
(a)the day on which an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child; or
(b) the day on which the Registrar becomes aware of the following:
(i)a change of at least 7.1% in the percentage of care of the child that the person has that affects the annual rate of child support payable for the child;
(ii)that the person's percentage of care for the child has fallen
below 14%;
(iii)that the person's percentage of care for the child has increased
to 14%, or above 14%; or
(c)if the child is a relevant dependent child in respect of whom section 73A applies - the day specified in that section as the first day on which the parent is taken to have had the child.
Note: The Registrar is not entitled to amend an administrative assessment in respect of a person's percentage of care unless the Registrar becomes aware of an event mentioned in paragraph (1)(b) (see subsection 75(2)).
Section 75 of the Assessment Act, titled “Amendment of assessments”, sets out when it is appropriate to amend an assessment. Section 75 of the Assessment Act (as in force at 1 July 2008) provides:
“(1)The Registrar may, at any time, amend any administrative assessment by making such alterations and additions as the Registrar considers necessary to give effect to this Act or the Registration and Collection Act.
(2)However, if the amendment relates to a person's percentage of care of a child, the Registrar must not amend an administrative assessment unless:
(a) the change to the person's percentage of care is at least 7.1%, and the
change affects the annual rate of child support payable for the child; or
(b) the person's percentage of care falls below 14%, or
(c) the person's percentage of care increases to 14%, or above 14%; or
(d) the child is a relevant dependent child and the Registrar has become aware that the child was not taken into account for the purpose of
making the assessment.
Note: 7.1% is one night per fortnight.” [Emphasis added]
Section 50 of the Assessment Act, titled “Registrar determinations where no agreement, plan or order”, requires the Registrar to make a determination if there is no agreement, plan or order. Section 50 of the Assessment Act (as in force at 1 July 2008) states:
“(1)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 care period if there is no agreement, plan or order that allows such a percentage to be determined under section 49.
(2)In making the determination, the Registrar must take into account such period as is required in order for the Registrar to be satisfied that there is, has been, or will be, a pattern of care for the child.
(3) The Registrar may revoke or vary a determination made under this section.”
Sections 5(2) and 5(3) of the Assessment Act define the terms “regular care” and “shared care” respectively. According to section 5(2) of the Assessment Act, a person has “regular care” of a child if the person has at least 14%, but less than 35%, care of the child during a care period. Section 5(3) of the Assessment Act provides that a person has “shared care” of a child if the person has at least 35%, but no more than 65%, care of the child during a care period.
Section 12 of the Assessment Act, titled “Interpretation – happening of child support for terminating events”, sets out what constitutes a “terminating event” for child support liability purposes. Section 12 of the Assessment Act (as in force at 1 July 2008), states in part:
“(1) A child support terminating event happens in relation to a child if:
(a) the child dies; or
(b)the child ceases to be an eligible child under regulations made under subsection 22(1); or
(c) the child turns 18; or
(d) the child is adopted; or
(e) the child becomes a member of a couple; or
……….
(2)A child support terminating event happens in relation to a person who is a carer entitled to child support in relation to a child if:
(a) the person dies; or
(b) the person ceases to be an eligible carer of the child.
……….
(4)A child support terminating event happens in relation to a child and the persons who are respectively a carer entitled to child support and a liable parent in relation to the child if:
(a)either of the following subparagraphs applies in relation to the child and those persons:
(i)the carer entitled to child support elects by a notice that complies with section 151 (Election by carer entitled to child support to end administrative assessment) that the liability of the liable parent to pay or provide child support for the child to the carer entitled to child support is to end from a specified day;….”
This application essentially involves a factual dispute between the Applicant and the Other Party as to what percentage of care each parent had for the Child during the relevant child support assessment period, being 25 September 2009 to 24 September 2010.
The Applicant’s “Statement of Facts and Contentions”, which were lodged with the Tribunal on 22 December 2011, state (on pages 1 - 4):
“Prior to 25 September 2009 [the Child] was recorded as being in [the Other Party’s] care to 100% of the time.”
FACT:
From 5 February 1993 – January 2007 [the Child] was in his Mum’s, [the Applicant’s], care 99% of the time. [The Other Party] had barely spent much time with [the Child]at all.
In early January 2007 - In desperation [the Applicant] called [the Other Party] to Please help out with his son [the Child] as he has not been an active parent throughout [the Child’s] Life. [The Child] has been regularly assessed for his acting out behaviour. [The Child] was booked into [BC] Boarding School. It was understood [the Applicant] and [the Other Party] would share the costs. [The Other Party] contributed absolutely nothing towards the boarding school fees. (Nor any other school fees in prior years for that fact.) [The Applicant] was left to pay the $15,000 debt. Additionally, [the Other Party] paid for all travel majority of Friday afternoons to pick [the Child] up from Bindoon and take him to Perth for the weekend, returning Sunday night or Monday morning before school started. [The Other Party] was lucky if he saw his dad [the Other Party] on 2 occasions throughout the whole year.
2 January 2008 – 25 September 2009 – [the Child] was in [the Applicant’s] care at least 168 days = 26% at minimum from what is actually proved with proof of receipts and other times that were not recorded.
Contention: [The Other Party] would appreciate CSA to promptly amend her child support to the correct percentage and repay the over charged amounts.
2008 dates [the Child] was in direct care of [the Applicant]
16 April -21 April = 6
09 May – 11 May = 3
30 May- 2 June = 4
16 June – 20 June = 5
5 July – 18 July = 14
22 August 24 August = 3
12 September – 24 September = 3
22 September – 26 September = 5
4 October – 19 October = 16
14 November – 17 November = 4
5 December – 7 December = 3
16 December – 31 December = 16
Total = minimum of 81 days in [the Applicant’s]direct care = 22.19%
Dates [the Child] worked and Income earnt 2008
From 21 February 2008 – 26 June 2008 [the Child] was working after school/weekends at [J’s] Dinner earning $975 for the 18weeks. ($54.16p/w)
From 3 July 2008 – 4 November 2008 [the Child] was working after school/weekends for [NWH] earning $1121 for the 18weeks. ($62.28p/w)
From 17 December 2008 – 24 January 2009 [the Child] was working school holidays at [R] Caravan Park earning in excess of $4000 ($800 p/w) at least. This was cash in hand confirmed by a written letter and also (Subsection 95(3) T7 15 P95 Par 4)
2009 dates [the Child] was in [the Applicant’s] direct care
1 January – 25 January = 25
26 January – 1 February = 7 Days with [the Applicant’s] Family
6 February – 8 February – 3
20 March – 23 March = 4
9 April – 14 April = 6 ([the Child] had work on 15th)
16 April – 23 April = 5 *
8 May – 10 May = 3
13 May – 17 May = 5 *
10 July – 26 July = 16 Total = minimum of 71 days = 21.09%
* Majority of time between April & May, when [the Child] was not with his Mum, [the Applicant], he stayed with friends to complete school, as he did not want to be at his Dads. This also includes from 17 September – 8 October = 22 days, 6 of these days he spent with his grandparents.
Dates [the Child] worked and Income earnt 2009
1 January – 24 January – [the Child] worked school holidays at [R] Caravan Park at least 6 days a week from 5-8hrs per day @ $20p/h. (cash)
20 February 2009 – 30 June 2009 [the Child] was working after school/weekends at [P] Garage and Service Station earning $2040 for 18 weeks ($113.30p/w)
June 2009 – Sept 2009 [the Child] was working weekends with his Uncle at Least 1-2days per week @ $100 - $150 per day (cash)
Contention:
[The Applicant] to be correctly assessed for the period of 1 January 2008 – 25 September 2009
[The Child] had to earn his own money to pay for his own clothes, underwear, shoes, personal necessities as [the Other Party] refused to purchase these for [the Child] from the child support paid.
When [the Child] was in Perth, [the Applicant] would always pay for haircuts, cloths, underwear and whatever else [the Child] was in need of. Phone cards were also continuously purchased as [the Child] was not allowed to use the phone at his dads place to ring his mum.
The costs incurred by [the Applicant] on a low income, the time spent dealing with [the Child’s] schooling issues, The fact that [the Other Party] was literally unavailable whilst working in the mines out of Perth 8 days of 14, being unavailable to majority of [the Child’s] care/supportive requirements. [the Child] was living independently in a Caravan separate to the house. [The Child] financially supported himself from his own income whilst in Pemberton. [The Applicant’s] financially assisted [the Child] whilst in her care, providing him with what necessities were needed. This has not been taken into consideration in working out percentage of care nor amount of child support to be paid.” [Emphasis added]
The above contentions of the Applicant relate to the period 1 January 2008 to 25 September 2009 and are therefore outside the scope of the Tribunal’s review and the Tribunal is unable to vary the Applicant's care percentage and assessment of child support for this period.
The Applicant’s “Statement of Facts and Contentions” further provide (at pages 4 – 6):
“From 25 September 2009 [the Applicant] has been assessed at no more than 7% of care for [the Child] and continually subjected to child support payments being taken out of pay when [the Child] was virtually self-sufficient with the assistance and support of [the Applicant].
FACT:
2009 dates [the Child] was in [the Applicant’s] Direct Care
8 October – 11 October = 4 *
13 November – 15 November = 3
27 December – 31 December = 5 [The Child] with [the Applicant’s] Family
[The Child’s] movements for 2010
1 January – 5 January = 5 [the Child] with [the Applicant’s] Family
5 January – 9 January = 4 [the Child] with friends in Manjimup
12 January – 18 January = 7 [the Child] Perth
18 January – 26 January – [the Child] with [the Other Party’s] Family in Busselton & Friends in Manjimup
27 January – 31 January = 5 [the Child] Perth
1 February – 2 February – [the Child] Pemberton
3 February – 4 February = 1 [the Child] Manjimup with friends
4 February – 7 February = 7 [the Child] Perth with Mum [the Applicant]
8 February – [the Child] moved in friends [CF] Manjimup
27 April – 3 May = 6
7 May – 11 May = 4
5 July - There is no more travel evidence as [the Child] had his own car and was travelling to Perth at his own expense. Though [the Child] has continuously kept in contact with his mum [the Applicant], visiting regularly on a 2-3 week basis.
Income [the Child] earnt 1July 2009 – 30 June 2010
1/7/2009 – 3/7/2010 [PG] Income = $102
9/2/2010 – 25/3/2010 [MM] Income = $279
8/4/2010 – 30/6/2010 G & B [B] Income = $2134.
Income [the Child] earnt 1 July 2010 – 30 June 2011
1/7/2010 – 20/6/2011 G & B [B] Income = $17,363
22/7/2010 – 30/6/2011 [B] Harvesting = $3187
25/5/2011 – 30/6/2011 [C] Hotel = $2827
Issue: Percentage of Care of [the Child] proved by [the Applicant]in the Period 25 September 2009 – 24 September 2010. (Ref: PC30223. P 3 of 7)
FACT:
[The Applicant] has been in constant contact with [the Child], speaking to him regularly via phone up to 3 times per week, when [the Child’s] out of his home in Perth.
[The Applicant] has always provided a home environment to [the Child], his entire life.
[The Child] has been 100% Self supportive since January 2010. [The Applicant] has financially supported [the Child], paying for his travel to and from Perth to Manjimup whilst he’s been living self-sufficiently with friends in his Manjimup rented property.
ISSUE: [The Applicant] has continuously claimed to of provided more than 14% of care to her son [the Child].
FACT: “Section 48 of the Act sets out how to work out a person’s percentage of care. Subsection 48(1) state in part: (1) A person’s percentage of care for a child for a day in a child support period is the percentage of care of the child that the person is likely to have during the period
Section 48 (1)(b)(i) “a change of at least 7.1% in the percentage of care of the child that the person has that affects the annual rate of child support payable for the child.
Ref 11. Page 4 of 7 Section 75, “Subsections 5(2) and (3) of the Act define the terms “regular care and shared care”. Subsection 5(2) states that a person has regular care of a child if the person has at least 14% but less that 35% care during the care period
CONTENTION: [The Applicant] requests to assessed correctly for at least regular care percentage and all care costs to be considered which affect the “annual rate of a child support payable for the child”
ISSUE: Ref 11. Page 4 of 7. ” “The child support formula takes into account the cost of care of the child when a parent has at least 14% care (52 nights over a 12month period).”
FACT: [The Applicant] has paid for all of [the Child’s] travel costs between his parents. [The Child] had to make his own way from his caravan on his Dad’s property to the bus stop as early as 6am to catch a bus from his dad’s and not arriving back till 9pm.
CONTENTION: All meals for days of travel were all paid for by [the Applicant]. So therefore there are 3 days of care.
ISSUE: (Ref 11. Page 5 of 7). CSA reports that 25 September 2009. Is the first time [the Applicant] made contact to dispute these matters.
FACT: [The Applicant] has made numerous attempts to have this matter heard respectfully. In May/June 2009 [the Applicant] made appointment to be seen by a CSA representative in Broome. Each of these appointments were cancelled by the CSA themselves. Phillip Austin, and a Sharee were at least 2 of the representatives who cancelled these appointments.
[The Applicant] has objected to CSA’s assessment continuously.
Obtaining evidence has been a timely event. Requiring legal assistance for information to be released, such as, All travel costs proving her direct care with [the Child], [the Child’s] income.
CONTENTION: 19 February 2010 Documentation was sent to CSA providing evidence of [the Child] travelling to be with [the Applicant] from Trans WA and South West Coach lines. Proof of address that [the Child] had moved out to [CF], and request to be reimbursed any child support payments.” [Emphasis added]
As set out above (in paragraph 56), section 75 of the Assessment Act stipulates that a change of care should not be recorded if a person has less than 14% of care for the child for the relevant child support assessment period. Based on the evidence before the Tribunal, including calendar of dates the Applicant provided to the SSAT (refer to paragraph 26 above), and which the Applicant confirmed as being correct before this Tribunal, and the information provided in the Applicant’s “Statement Facts and Contentions” (refer to paragraphs 61 and 63 above), the Tribunal finds that the amount of care the Applicant had of the Child in the 12 month child support assessment period 25 September 2009 to 24 September 2010 was less than 14%. Whilst on the evidence before the Tribunal the Applicant’s care percentage of the Child appears to have increased by more than 7.1% in the relevant period, the increase does not affect the annual rate of child support payable by the Applicant to the Other Party in respect of the Child for that period since the Applicant’s care percentage did not reach 14% as required by section 75(2) of the Assessment Act.
Further, before the Tribunal the Applicant contended that the Child was “100% Self supportive since January 2010” (refer to paragraph 63 above). The Tribunal notes that this statement is inconsistent with the other information concerning the Child’s living arrangements in 2010 provided by the Applicant in her “Statement of Facts and Contentions” under the heading “[The Child’s] movements for 2010” [refer to paragraph 63 above] along with the Applicant’s subsequent statement “[The Applicant] as financially supported [the Child], paying for his travel to and from Perth to Manjimup whilst he’s been living self-sufficiently with his friends in his Manjimup rented property” (refer to paragraph 63 above).
The CSA’s computer records reveal that the Other Party telephoned the CSA on 27 April 2010 advising it that the Child had moved out of his house and was living nearby with friends but that he continued to look after the needs of the Child “in terms of his clothing and any other expenses that [the Child] might incur.”
The evidence of the Applicant and the Other Party concerning the living arrangements and financial circumstances of the Child in 2010 are clearly conflicting. However, based on the evidence before it, the Tribunal does not consider the fact that the Child moved out of the [Other Party’s] house sometime in early 2010 to constitute a “terminating event”, as defined in section 12 of the Assessment Act, for child support liability purposes. In this instance, the relevant “terminating event” for child support liability purposes occurred when the Other Party requested that he stop receiving child support from the Applicant in respect of the Child, effective 19 October 2010, on the basis that the Child had left school and was now working (which request was accepted by the CSA on 27 October 2010): section 12(4)(a)(i) of the Assessment Act.
DECISION
For the above reasons, in accordance with section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision of the SSAT, dated 6 May 2011, and remits the matter to the Child Support Registrar for reconsideration in accordance with the above Reasons for Decision.
I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR WALSH.
.....(sgd) T Freeman..............
Associate
Dated 18 April 2012
Date of hearing 24 February 2012 Representative of Applicant Self-represented Representative of the Respondent Ms M Conlan
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Administrative Review
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Statutory Interpretation
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Legitimate Expectation
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