Confidential and Executive Director, Social Security Appeals Tribunal

[2010] AATA 726

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 726

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos      2010/0939,

GENERAL ADMINISTRATIVE  DIVISION		)  2010/1537
Re		Confidential

Applicant

And Executive Director, Social Security Appeals Tribunal

Respondent  

Confidential

Other Party

DECISION

Tribunal Senior Member A K Britton

Date23 September 2010 

PlaceSydney

Decision

In Application No. 2010/0939:

1.     The decision of the Social Security Appeals Tribunal made on 10 February 2010 to refuse an application  to lodge an out of time application for review of the decision of the Child Support Agency made on 22 June 2009 is affirmed.

In Application No. 2010/1537:

1.     The Administrative Appeals Tribunal does not have jurisdiction to entertain the decision made by the Social Security Appeals Tribunal on 9 March 2010 affirming the decision made by the Child Support Agency on 15 November 2007 to accept as a “child support agreement”, the orders made by the Family Court on 24 November 2003.

2.     The decision made by the Child Support Agency regarding the parentage of care of the applicant’s children for the period, 25 August 2008 to 14 March 2009, is affirmed.

3.     The decision made by the Child Support Agency regarding the parentage of care of the applicant’s daughter for the period, 29 July 2008 to 25 August 2008, is set aside and remitted to the Child Support Agency for reconsideration in accordance with the directions contained in these Reasons. 

....................[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 - extension of time to seek review of decision by SSAT - principles applicable to grant of extension of time.

CHILD SUPPORT - decision to accept a child support agreement - jurisdiction of AAT - where decision relates to acceptance of agreement and to a percentage of care.

PRACTICE AND PROCEDURE - jurisdiction of the Administrative Appeals Tribunal - where decision under review failures to address matters raised by party.

Child Support (Registration and Collection) Act 1988 — ss 80, 87, 91, 92, 110X
Child Support (Assessment) Act 1989 — ss 48, 49, 50
Administrative Appeals Tribunal Act 1975 (Cth) — s 25

The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & Anor (1961) 106 CLR 48
Hunter Valley Developments v Cohen (1984) 3 FCR 344
Confidential and Executive Director of the Social Security Appeals Tribunal [2008] AATA 1006
Confidential and Executive Director, Social Security Appeals Tribunal [2009] AATA 851
Commissioner of Taxation v Brown (1999) 42 ATR 672

REASONS FOR DECISION

23 September 2010  Senior Member A K Britton           

1.      The applicant and his former wife have been separated since about 2002. They are the parents of two children.  The applicant seeks review of two decisions which concern his liability for child support payments. The first relates to a decision made by the Social Security Appeals Tribunal (SSAT) to refuse to extend time to appeal against a decision made by the Child Support Agency.  The second relates to a decision made by the Agency that the applicant asserts constitutes a “percentage of care” decision and is therefore reviewable by the Administrative Appeals Tribunal.

2. 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, these reasons I do not include any details that could identify the applicant or anyone else, other than the Registrar. I will refer to the applicant’s former wife as “the former wife”, and to the children as “the son” and “the daughter”.

A. Extension of time decision (No. 2010/0939)

3.      On 28 January 2010, the SSAT refused to grant the applicant an extension of time to lodge an application for review against a decision that had been made by the Agency on 22 June 2009 (“the subject decision”).

4.      To understand the basis for the applicant’s request for an extension of time, it is necessary to summarise the background to the subject decision.  On 3 April 2009, the Agency amended its assessment of child support on the basis that the former wife had 100% care of the daughter from 14 March 2009.  The amendment was triggered by the former wife providing advice to the Agency that the daughter had decided she would cease staying with the applicant overnight.

5.      The applicant lodged an objection to that decision. That objection was made within time. In the subject decision — which as noted, was made on 22 June 2009 —the Agency disallowed the objection. In short, the Agency decided that the original decision to vary the applicant’s child support payments to reflect a 100% percentage of care by the former wife was the correct decision. 

6. On 9 October 2009, the applicant lodged an appeal with the SSAT. On the appeal form, he identified the decision the subject of his appeal as a decision made by the Agency on 3 September 2009 (see s 37 documents [Administrative Appeals Tribunal Act 1975 (Cth),] p 24). That decision is the subject of a separate application for review to the AAT and is dealt with below.

7.      At the hearing held on 7 January 2010, the SSAT stated that it was not aware that the applicant was also seeking review of the subject decision. As a consequence, the applicant lodged an application for an extension of time to appeal against the subject decision on the same day.  The SSAT considered and refused that application and handed down written reasons for that decision on 10 February 2010.

8.      The issues I am required to determine are: 

1. When did the applicant seek review of the subject decision?

2. Was the application out of time?

3. If so, should an extension of time be granted to allow the applicant to seek review of the subject decision by the SSAT?

When did the applicant seek review of the subject decision?

9.      In the appeal form lodged on 9 October 2009, the applicant wrote “yes” in answer to the question, “Has the decision you wish to appeal been reviewed by a CSA objection officer?”, and specified 3 September 2009 as the date of that decision.  In answer to a later question, “What decisions are you appealing about?’ he wrote, “Please refer attached documentation and correspondence”. The attached correspondence made wide ranging complaints about the Agency but made no direct reference to the subject decision. Reference was however made, if somewhat obliquely, to the original April 2009 decision under the heading “2009 assessment of care”.

10. A fair reading of the appeal form indicates that despite the apparent inconsistency between the identification of the 3 September 2009 determination as the decision the applicant “wished to appeal against” and the scope of decisions covered in the attachment, the applicant was seeking review of the decision that his former wife’s percentage of care would be 100% from March 2009. Given that the Registration and Collection Act allows a degree of flexibility in the manner in which an application for review can be made to the SSAT — an application can be made in writing, or orally in person or via telephone: s 94(1) and 94(2) — and the absence of any requirement that an application be made in any particular form, in my view it would involve an unduly narrow reading of these provisions to conclude that the only decision the subject of review identified in the appeal form was the 3 September 2009 decision.

11.     For these reasons, I find that the applicant sought review of the subject decision on 9 October 2009.

Was the application for review out of time?

12. When the applicant lodged his appeal, s 90 of the Registration and Collection Act (as it then was) provided that an application for review was to be made within a 28 day period beginning on the day on which the relevant notice under ss 83(3) or 87(2) is served on the person.

13.     The SSAT found that the applicant received notice of the subject decision on 2 July 2009 basing this decision on its understanding that it generally takes nine days for the delivery of correspondence from the CSA. I adopt that finding. The application for review was required to be lodged within 28 days of that date, that is, 30 July 2009. As the application was lodged on 9 October 2009, it was 71 days out of time.

Should an extension of time be granted?

14. Section 91(1) of the Registration and Collection Act allows a person to make an application for review of a decision to the SSAT where the 28 day period has expired. The Executive Director of the SSAT may grant or refuse the application for an extension: s 92. The AAT has jurisdiction to review a decision by the Executive Director refusing an application for review: s 92(7).

15. Neither the Registration and Collection Act nor the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) set out the factors to be taken into account in deciding whether to extend time. The AAT has consistently employed the principles enunciated by Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344 at pp 348, 349 in deciding whether it is appropriate to exercise the power to accept an application made to the SSAT out of time. (See for example, Confidential and Executive Director, Social Security Appeals Tribunal [2009] AATA 851 and Confidential and Executive Director of the Social Security Appeals Tribunal [2008] AATA 1006.) In my view, two of these principles are of particular relevance in this matter — the reasons for the applicant’s delay in applying for review, the merits of the substantive application and any prejudice to other parties.

Reason for delay

16.     In these proceedings, the applicant said that he was late in lodging the application for review because he did not receive notice of the decision until his return from a six week-long overseas trip in 8 August 2009. He explained that he delayed attending to the matter upon his return as he had other matters to attend to, and also wanted to “roll up” a number of issues he had with the Agency. 

17.     He argued that it was somewhat galling that he was required to meet strict time limits while the Agency took close to two months to determine his original objection.

Merits of substantive application

18.     In determining whether the application to extend time should be granted, it is necessary to have regard to the merits of the applicant’s substantial application — that is, that the percentage of care decision made in March 2009. In approaching that task, I will take into account the facts as asserted by the applicant, even where they conflict with other evidence (Commissioner of Taxation v Brown (1999) 42 ATR 672).

19.     Prior to 14 March 2009, the applicant’s wife was liable to pay child support for the daughter on the basis that the percentage of care provided by the applicant was 66%.  As noted, that assessment was varied with effect from 14 March 2009 following advice that the daughter had announced that she would no longer be staying with the applicant. The Agency decision of 3 April 2010 made the following determination in relation to the applicant’s daughter:

Assessment period:    14 March 2009 to 13 March 2010

Care percentages:     Applicant                   0%

Mother  100%

20. I note that under s 5(2) of the Assessment Act, “regular care” begins when a parent has at least 14% care of a child during the care period. The effect of s 55C is that where a person’s percentage of care falls below 14% over a 12 month period, the “cost percentage” used to determine their eligibility for payments is reset to 0%. It is therefore necessary that a person’s actual percentage of care move above 14% for it to have a substantive effect on the cost percentage, and thus on the rate of child support payable.

21.     In the subject decision, the objections officer noted that no evidence had been provided to indicate that the daughter was not in the “primary care” of the former wife.  It would appear that the only information taken into account was the former wife’s advice about what she had been told by the daughter.

22.     The SSAT concluded that the substantive application lacked merit, noting that that on the information provided by the applicant, the daughter had in fact spent only seven out of 107 nights in his care throughout the period mid-March 2009 to mid-August 2009, and that this fell far short of 14% of care.

23.     An issue raised in this application is the approach to be taken to a percentage of care decision when made on review. To answer that question, it is necessary to look at the scheme of the Act and the provisions governing the calculation of percentage of care.

24. 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 as it stood on 3 April 2009, the date of the Agency’s decision. 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.

25. Section 48 of the Act requires the decision maker to undertake a speculative exercise and predict what is likely to be the person’s percentage of care of the relevant child over a 12 month period commencing from one of the events listed in s 48(1). The legislation does not address what approach is to be taken in making that decision — where, as in this case, the 12 month period has passed. It seems to me, having regard to the scheme of the Act, that the correct approach is to undertake a somewhat artificial exercise, and ask — as at the relevant date, what was the percentage of care the person was likely to have of the child over the following 12 months,, based on the facts as known at that date. If, as events transpire, that prediction is found to be incorrect, and there has been a change in the percentage of care sufficient to give rise to one of the events listed in s 48(1)(b) or (c), then a fresh percentage of care decision is required to be made at that later point.

26. One of those “trigger events” is where a person’s percentage of care falls above or below 14%: s 48(1)(b)(iii).

27. For the applicant to succeed in his substantive application, the SSAT would need to be satisfied that as at 14 March 2009, none of the events listed in s 48(1) had occurred — which is not contended — or, at the time, it was likely that he would have care of the daughter for more than 14 percent of nights for the 12 month period, from 14 March 2009.

28.     At the time the Agency made its original decision, the only information it had been provided was the former wife’s claim that the daughter had advised that she would no longer be staying with the applicant. In a letter dated 24 April 2009, the applicant stated that he did not consider that it would be in his daughter’s “best interests that she spend all her time with [the former wife] nor will it occur”.

29.     In a document prepared for these proceedings, the applicant set out his claim about the amount of time spent by his daughter in his care from March 2009.  It revealed that after mid-September 2009, the percentage of time increased but had been negligible up to that time.

30.     On the facts available when the original decision was made, the applicant’s percentage of care of his daughter over the 12 months from 14 March 2009 to 14 March 2010 was likely to be less that 14%. In my view, the evidence provided by the applicant about what in fact occurred throughout that period does not undermine the subject decision but, rather indicates that a fresh percentage of care was necessitated from the date the Registrar became aware of, or was notified that the applicant’s percentage of care had increased to over 14%: see ss 48(b)(vii) and 48(b)(viii).

31.     For these reasons, I agree with the conclusion reached by the SSAT that the subject decision was correct and therefore the applicant’s substantive application lacks merit.

Conclusions 

32.     In considering whether an extension of time should be granted, I note that the delay in seeking review was not insubstantial — some 71 days. The explanation provided by the applicant for that delay is less than satisfactory. Close to two months passed from the time he returned from overseas before he made the application for review. While I accept that some of the documentation provided by the Agency to the applicant is less than clear, he was nonetheless given written notice in clear terms of the statutory time limits for seeking review.  In addition — and perhaps more importantly — the proposed appeal in my opinion enjoys little prospect of success. The just determination of proceedings involves justice to all parties, not merely to the applicant. The applicant’s former wife is entitled to some finality in the resolution of the matters in dispute. Where the chances of success are poor, it would not be in the interests of justice to extend the time for the applicant to file his application for review.

33.     For these reasons, I have decided not to grant an extension of time.

B. Child support agreement (No. 2010/1537)

34.     The applicant also seeks review of a decision made by the SSAT on 19 March 2010. A preliminary issue falls for determination — namely, whether the AAT has power to review that decision.

Background

35.     On 15 November 2007, the Agency accepted a child support agreement based on consent orders made by the Family Court dated 24 November 2003.  The applicant sought leave of the Agency to lodge an objection to that decision out of time. The Agency refused to extend time. On appeal, the SSAT overturned that decision. 

36.     An extension of time having been granted, the applicant then applied to the Agency for review of the November 2007 acceptance decision.  On 3 September 2009, the Agency allowed the applicant’s objection in part.

37.     On 9 October 2009, the applicant appealed that decision to the SSAT.  On 19 March 2010 the SSAT set aside the objection officer’s decision and substituted a new decision.  The SSAT affirmed that part of the Agency’s decision which decided to accept the child support agreement based on the consent orders made by the Family Court, but set aside that part of the decision concerning the date the agreement ceased.  The Agency had decided that the agreement ceased on 31 December 2007. The SSAT took a different view and decided the agreement ceased on 28 July 2008. 

Scope of decisions reviewable by AAT

38.     The AAT is a creature of statute. The statute establishing it, the AAT Act, circumscribes the Tribunal’s jurisdiction. The Tribunal has no power to inquire at large into matters that take its interest but over which it has no jurisdiction. The Tribunal instead has a duty to decline to hear such cases: The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & Anor (1961) 106 CLR 48.

39. Section 25 of the AAT Act gives the Tribunal the power to review decisions made under an enactment which confers jurisdiction on the Tribunal. The Registration and Collection Act sets out the parameters of the Tribunal’s jurisdiction in respect of decisions made by the Agency. Apart from decisions concerning an extension of time to appeal, the only class of decisions that may be reviewed by the AAT are those described in s 103VA of the Registration and Collection Act:

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 [Part VIIA] relating to a party’s percentage of care for a child may apply to the AAT for review of the decision.

40.     Can the AAT review the SSAT decision?       The applicant contends that the decision made by the SSAT on 19 March 2007 was a decision relating to the percentage of care of the daughter and that the AAT therefore has power to hear his appeal. He claims that that the reason he appealed to the SSAT was because he was dissatisfied with the percentage of care decision made by both the Agency and the SSAT for the periods covering 2008 and 2009. He contended that he had been the primary care giver for both children throughout 2008.

41.     Identification of the scope of the decision     In its reasons for decision, the SSAT identified at [9] the issues for determination as follows:

Whether the notation in the Family Court orders dated 24 November 2003 regarding the payment of child support is a child support agreement; and if so

Whether this agreement was terminated; and if so, from what date.

42.     An examination of the decision made by the Agency on 3 September 2009 reveals that the objections officer not only considered the status of the purported “child support agreement”, but also made an administrative assessment. Having decided that the child support agreement would end on 31 December 2007 the officer went to make a series of administrative assessments.

43.     It follows that there were two key issues determined in the 3 September 2009 decision — first, the status of the purported child support agreement, and second, the applicable percentage of care for the period following the cessation of that agreement.  It is necessary to examine each “decision” in turn. 

44.     (i) The purported child support agreement    The SSAT considered the terms of the Family Court orders which provided that child support payments shall continue “while ever both children continue to primarily reside with the wife up until [the eldest child’s] 18th birthday”.  After considering the meaning of the term “primarily reside” and the evidence in relation to where the eldest child had been residing, the SSAT decided that he had moved permanently into his father’s care on 29 July 2008. The agreement had consequently ceased to have effect from that date.

45.     In my view, and contrary to the applicant’s assertion, that particular part of the decision made by the SSAT cannot be characterised as a decision “relating to a … percentage of care for a child”.  While the SSAT considered the amount of time the eldest child had been residing with his parents in the context of determining whether the Agency should have accepted the Family Court orders as constituting a child support agreement, the purpose of its inquiry was to decide whether the precondition to the cessation of the agreement had been met.  While there are factual issues common to that issue and a “percentage of care” decision, it does not follow that the decision made by the SSAT constituted a percentage of care decision.

46. As such, that part of the SSAT decision concerning the Agency’s decision to accept the child support agreement does not fall within the scope of s 103VA. It is therefore not reviewable by the AAT.

47.      (ii) The percentage of care “decision”           As noted, the SSAT did not go on to consider that part of the objection officer’s decision concerning the applicant’s percentage of care for the period following the cessation of the agreement.  The SSAT had power to review that decision and in my opinion erred by failing to do so.

48. The issue therefore arises whether the AAT can proceed to review that decision. As will be recalled, s 103VA(1) confers power on the AAT to review on application a decision “of the SSAT under [Part VIIA] relating to a party’s percentage of care for a child”.

49.     Where as in this case an intermediate tribunal fails to determine a matter that was properly before it as the subject of review, the AAT is not deprived of jurisdiction to review that “decision”.  This conclusion flows from the general proposition that the AAT on review exercises the powers of the original decision-maker in order to reach the correct and preferable decision, and the legally-incorrect decision of an intermediate tribunal on the scope of its jurisdiction does not limit the AAT’s ability to deal with matters fairly raised in proceedings: see, for example, Crompton v Repatriation Commission (1993) 30 ALD 45.

50.     The AAT therefore has power to review the percentage of care decision. 

AAT Review of percentage of care decision

51.     It will be recalled that the SSAT found that the child support agreement ceased on 28 July 2008, and not 31 December 2007 as found by the Agency.  While not expressed in these terms, the effect of the SSAT decision was to set aside all assessment decisions made by the Agency for the period, 1 January 2008 to 28 July 2008.

52.     The parties do not dispute the Agency’s decision that the applicant had 100% care of the son from 29 July 2008.  In respect of the daughter, the Agency decided that the applicant’s percentage of care was 35% from 29 July 2008 and had increased to 66% from 25 August 2008 until the “terminating event” of the daughter advising of her intention to live exclusively with her mother, which occurred on 14 March 2009.

53.     Neither party disputes the Agency’s decision about the applicant’s percentage of care for the daughter from 25 August 2008 to 14 March 2009. The applicant maintains that his percentage of care of the daughter throughout 2008 was 66%.  As I understand it he disputes the Agency’s decision that his percentage of care for the daughter was 35% for the period 29 July 2008 to 25 August 2008. 

54.     From what is before me, it is unclear on what basis the Agency made its percentage of care decision in respect of the daughter for the period 29 July 2008 to 25 August 2008.  Accordingly, I have decided to remit that decision for reconsideration and request that the Agency in its reasons for decision clearly set out the factual assumptions on which its decision is made.

Summary  

55.     In summary, in relation to application No.2010/0939 the decision of the Social Security Appeals Tribunal made on 10 February 2010 to refuse an application  to lodge an out of time application for review of the decision of the Child Support Agency made on 22 June 2009, in my opinion, is the correct decision and must therefore be affirmed.

56.     In relation to application No.2010/1537 the AAT does not have jurisdiction to entertain the decision made by the Social Security Appeals Tribunal on 9 March 2010 affirming the decision made by the Child Support Agency on 15 November 2007 to accept as a “child support agreement”, the orders made by the Family Court on 24 November 2003.  The AAT does however have the power to review the balance of the objection decision that was the subject of the application for review to the SSAT and decides:

1. The decision made by the Child Support Agency regarding the percentage of care of the applicant’s children for the period, 25 August 2008 to 14 March 2009, is affirmed.

2. The decision made by the Child Support Agency regarding the percentage of care of the applicant’s daughter for the period, 29 July 2008 to 25 August 2008, is set aside and remitted to the Child Support Agency for reconsideration in accordance with the directions contained in these Reasons.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: .....................................[SGD]....................................
  Associate to Senior Member Britton

Date of Hearing:  14 September 2010
Date of Decision:  23 September 2010
The Applicant and the Other Party appeared in person.