Confidential and Social Security Appeals Tribunal

[2009] AATA 197

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 197

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4650

GENERAL ADMINISTRATIVE DIVISION		)
Re		CONFIDENTIAL

Applicant

And SOCIAL SECURITY APPEALS TRIBUNAL

Respondent

And             CONFIDENTIAL     
   Third Party

DIRECTION

The Tribunal directs the Registrar, pursuant to sub-s.43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by:   

1)Deleting paragraph 2 of the decision dated 25 February 2009; and

2)Substituting the words in paragraph 1 “sets aside the decision of the Social Security Appeals Tribunal under review and finds that the applicant’s percentage of care for the child in question for the relevant child support period should be assessed at 42%”. 

DECISION

Tribunal Mr A Sweidan, Senior Member  

Date25 February 2009

PlacePerth

Decision

The Tribunal:

1.    sets aside the decision of the Social Security Appeals Tribunal under review and;

2. remits the matter pursuant to s. 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975  to the decision maker with a direction to find that the applicant’s percentage of care for the child in question for the relevant child support period should be assessed at 42%.        

...(sgd) Mr A Sweidan............

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 & Collection) Act 1988 (Cth).     

CATCHWORDS

Child Support – percentage of care – whether percentage should be determined by actual time rather than nights of care – decision under review set aside 

LEGISLATION

Child Support (Assessment) Act 1989 – Part 5 Division 1

CASES  

Drake and Minister for immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

25 February 2009 Mr A Sweidan, Senior Member    

History

1.      Applicant and the third party are the parents of a child (“the child”).

2.      Applicant is the paying parent. The relevant child support period is 1 July 2008 to 30 September 2009 (the “child support period”).

3.      The Family Court of Western Australia made orders on 5 February 2008 and 22 August 2008 regarding the living arrangements for the child.

4.      An officer of the Child Support Agency (“the CSA”) decided that the annual amount of child support payable by the applicant to the third party for the child support period should be based on a 36.16% care percentage for applicant and a 63.84% care percentage for the third party, determined on the basis of nights of care.   

5.      Applicant objected to the 36.16% care percentage and claimed his care percentage should be calculated on actual time rather than nights of care.

6.        On 16 April 2008 the Family Assistance Office of Centrelink decided that the applicant’s care percentage for the child was 42% from 5 February 2008 for family tax benefit purposes. This was based on actual time.

7.        An objections officer of the CSA subsequently disallowed the applicant’s objection and decided that nights of care should be used to determine the percentage of care for the child support period.

8. Applicant appealed to the Social Security Appeals Tribunal (“SSAT”) which determined that the “nights of care” approach followed by the CSA objections officer was correct and varied the applicant’s percentage of care to 35%. Applicant now seeks a review of that decision by this Tribunal.     

Issue

9. The issue for the Tribunal is how the applicant’s percentage of care of the child for the child support period should be calculated. 

Evidence

10.      The Tribunal heard evidence from the applicant and the third party. The SSAT was not represented before the Tribunal. The Tribunal was provided with a number of documents including the s.37 documents and a partial transcript of the relevant proceedings in the Family Court. 

Legislative Framework and Policy

11. The relevant legislation is contained in the Child Support (Assessment) Act 1989 (the “Assessment Act”).

12.      Child support legislation is interpreted by CSA officers with the aid of the CSA Guide (the “Guide”). The SSAT decided that provided the policy set out in the Guide is consistent with the legislation, it is required to have regard to it and in the ordinary course to follow it citing Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634 as authority, and noted that generally the SSAT will follow the Guide “unless there is a cogent reason not to do so.”

13.      However, this Tribunal notes the following commentary in the Second Edition of Professor Dennis Pearce’s “Administrative Appeals Tribunal” text book at pages 194 to 195:

In Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158; 15 ALR 696 the AAT made it clear that it would review discretionary decisions of ministers where the enactment conferring jurisdictions so provided, and this jurisdiction might extend to a review of policy laid down by the minister to guide the exercise of that discretion. However, the AAT expressed the opinion that different considerations might apply to policy that was basic and therefore might have to be settled at the political level, as compared with policy intended to implement a basic policy which was more likely to have been determined at the departmental level. The latter would be more readily reviewed than the former. However, if the jurisdiction vested in the AAT required the review of policy, the review would extend beyond the question of the validity of the policy to embrace its wisdom.

The Federal Court endorsed this approach by the AAT to its review role and, indeed, insisted that it exercise a function independent of the executive. The Court made it clear that where a decision-maker has purported to reach a decision by following government policy, the AAT may also have regard to that policy. It must not, however, determine the issue simply by resolving whether or not the decision conforms with the policy. In Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69-70; 24 ALR 577 at 590, Bowen CJ and Deane J described the AAT’s function as follows:

If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the AAT to take into account in reviewing the decision. On the other hand, the AAT is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the AAT, the correct or preferable one in favour of a function of merely determining whether the decision was made conformed with whatever the relevant general government policy might be.       

The approach to be followed by the AAT in reaching an accommodation between the role stated for it by the Federal Court and published government policy was taken further by President Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634. Policy was seen by the President as being a key factor in attaining consistency in decision-making. Consistency was said to be a desirable goal in administration, as the application of differing standards in the exercise of a power by administrators cannot do other than result in unfairness and a consequent lack of confidence in the executive. The AAT ought therefore to apply lawful ministerial policy unless there are cogent reasons to the contrary. It would, however, be a cogent reason if the application of the policy would work an injustice in a particular case. Consistency is not preferable to justice (see particularly 2 ALD at 644-5).         

14. Division 1 of Part 5 of the Assessment Act sets out the basic formula used to determine the annual rate of child support and includes as one of the components the liable parent’s percentage of care.

15.      Section 48 provides, relevantly:

48 Working out percentage of care

(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)).

(2) The percentage of care is to be worked out in accordance with this Subdivision.  

Note: Generally, a person’s percentage of care for a child 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.

16.      Regarding percentage of care the Guide provides:

A parent’s percentage of care for a child is used to determine the percentage of the cost of the child that the parent is meeting directly through the care they are providing for that child. A parent’s percentage of care for a child can be amended in certain circumstances.  

A parent’s percentage of care for a day in a child support period is the percentage of care that the person is likely to have of the child during a 12 month period. Generally, care will be calculated prospectively. Care will always be calculated over a 365 day period, regardless of leap years.

Care will generally be 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.

In making a decision about percentage of care, CSA may take into account the amount of time during both day and night that each parent cares for the child as well as who is responsible for making arrangements for, and decisions about, the child’s welfare. CSA will give weight to statements from both parents.

Where a parent’s level of care of a child is determined by a court order, CSA will calculate a care percentage in accordance with that order as long as CSA is satisfied that the court allows a percentage to be determined.

17.       The Guide states at paragraph 2.2.8 in dealing with resolution of percentage of care disputes that:

The CSA cannot treat information from Centrelink about the percentage of care it has used in working out a parent’s rate of family tax benefit as conclusive evidence. Centrelink’s criteria for working out the amount of care of a child for family tax benefit differ from CSA’s criteria.

Applicant’s Contentions

18.      Applicant contends that his percentage care of the child should be calculated using actual time (and not nights as used by the CSA) and also that the CSA have incorrectly calculated the number of nights for the mid year holidays – it should be 8 nights and not 7 nights as the number of nights from 6pm Saturday to 6pm Sunday is 8 nights and not 7 nights as calculated by the CSA.

19.      On a correct night count basis the Court orders give him a total of 145 nights care which equates to 39.75% of nights per year. However he contends that the CSA should be using actual hours of care as a basis to work out care percentages as was done by Centrelink which shows he has 42% care. Centrelink used hours of care to work out care percentages from the same Court orders that the CSA used.

20.      There is scope in the CSA legislation to allow for the calculation of care percentages based on hours of care and the use of nights is not always the most accurate method of making a determination.

21.      At folio 4 of the subsection 95(3) Statement and Documents the CSA states that “the child support agency will work out a parent’s level of care according to the time that the parent is responsible for providing care for the child”. This means that it is possible for a parent to be caring for a child any time of the day or night and that all care time should be taken into account when calculating a care percentage. Further, the above definition of care has the same meaning as care under section 22(7)(a) of the family assistance legislation.

22.      A night count will not always acknowledge the extra costs associated with day-time care times. When he is caring for the child on these days he cannot work. This has reduced his ability to earn an income and therefore has made it harder to meet the general costs of living including child support payment

23. Subsection 48(1) of the Assessment Act should be interpreted so that the care percentage in this case is based on the actual time spent caring for the child.

24.      The use of nights to work out care percentages is exactly what the CSA objection officer describes it as, a methodology, and given the various methods as explained in the legislation to work out care percentages, he asserts that the true intent of the CSA legislation from 1 July 2008 is to use actual care times to work out care percentages which may include days, nights or hours or whatever method is practical to reflect what was actually occurring care-wise between parents and not to calculate care percentages only using a night count.

25. Subsection 48(2) of the Assessment Act is not phrased in absolute terms as it uses the words “generally” and therefore is not definitive and is not meant to apply in every case.

26.      In this case the Court orders specify the day times, night times and specific hours for handovers and holiday periods and it is not in dispute that the Court orders are being followed.

Tribunals’ Findings

27.      The Tribunal notes the CSA’s policy regarding percentage of care as set out in the Guide. It provides that percentage of care will “generally” be 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. However, the Guide also states that in making a decision about percentage of care, the CSA may take into account the amount of time during both day and night that each parent cares for the child as well as who is responsible for making arrangements for, and decisions about, the child’s welfare. The evidence is that both parents share this responsibility. While the Guide states that the CSA cannot treat information from Centrelink about the percentage of care it has used in working out a parent’s rate of family tax benefit as conclusive evidence, nevertheless in the Tribunal’s view the CSA should have regard to Centrelink’s determination as one of the factors to be taken into account.   

28.      This Tribunal is of the view that the SSAT erred in finding that the relevant care percentage in this matter should be based on night counts. Furthermore, in the Tribunal’s view the SSAT erred in finding that the Family Court order of 5 February 2008 was varied by the Family Court order of 20 August 2008.

29.      In this Tribunal’s view the transcript of the Family Court proceedings on 20 August 2008 clearly shows that the Family Court intended to clarify the order made on 5 February 2008 and did not intend to vary that order in relation to any substantive matter relevant to this application.

30.      It is not in dispute that if actual time rather than nights of care is used as the basis of the calculation this results in a 42% percentage of care.     

31.      While the CSA is not bound to follow the methodology applied by the Centrelink Family Assistance Office in determining a percentage of care this Tribunal is of the view that on the evidence before it the appropriate basis for determining the percentage of care in this matter should be the same as that used by the Centrelink Family Assistance Office i.e. the actual time since, in the view of this Tribunal, to do otherwise would result in injustice to the applicant for the reasons contended by the applicant.

Decision

32.      The Tribunal accordingly sets aside the decision under review and remits the matter to the decision maker for reconsideration in accordance with a direction from the Tribunal that the applicant’s percentage of care for the child for the relevant child support period should be assessed at 42%.                           

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed: ..(sgd) T Freeman............
  Associate

Date/s of Hearing  5 February 2009
Date of Decision  25 February 2009
Applicant  Self represented
Respondent  No appearance
Third Party  Self represented