DWTR and Child Support Registrar (Child support second review)
[2020] AATA 363
•20 February 2020
DWTR and Child Support Registrar (Child support second review) [2020] AATA 363 (20 February 2020)
Division:GENERAL DIVISION
File Number: 2018/6854
Re:DWTR
APPLICANT
AndChild Support Registrar
RESPONDENT
AndDNZG
OTHER PARTY
DECISION
Tribunal:Senior Member C. J. Furnell
Date:20 February 2020
Place:Melbourne
The Tribunal sets the decision of the Social Services and Child Support Division made on 14 June 2018 aside and remits the matter to the respondent for reconsideration in accordance with a direction that a period as is appropriate as the care period is the period commencing on 20 November 2017 and ending on 14 April 2019, that the mother had no pattern of care for Frank during that period, that the father did have a pattern of care for Frank during that period and that Frank was in the sole, actual, care of the father in that period.
[sgd].................................................................
Senior Member C. J. Furnell
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
CHILD SUPPORT – percentage of care – was there a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – defining a care period – date of effect of decision – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances found – decision under review set aside and remittedLegislation
Administrative Appeals Tribunal Act 1975
Child Support (Assessment) Act 1989
Child Support (Assessment) Regulations 1989
Child Support (Registration and Collection) Act 1988Cases
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Bull v Attorney General (1913) 17 CLR 370
Child Support Registrar v MQMV [2019] FCA 1171
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
GWNS and Child Support Registrar & Anor [2016] AATA 576
Re Ivovic and Director-General of Social Services (1981) 3 ALN N61
Lighthouse Philatelics v Federal Commissioner of Taxation (1991) 103 ALR 156
NHVK and Secretary, Department of Social Services (Child support second review) [2019] AATA 78
Ousley v R (1997) 148 ALR 510
Parent A and Child Support Registrar [2013] AATA 562
Roncevich v Repatriation Commission (2005) 222 CLR 115
VGLV and Child Support Registrar (Child Support Second Review) [2019] AATA 1097Secondary Materials
Department of Social Services, Child Support Guide (Version 4.45, 2 January 2020)REASONS FOR DECISION
Senior Member C. J. Furnell
20 February 2020
This application concerns a dispute over the extent to which each parent of a child provided care to the child. A parent’s percentage of care of a child can affect the parent’s liability under the Child Support (Assessment) Act 1989 (Cth) (CSAA)[1] to make, and entitlement to receive, child support payments.[2]
[1] In these reasons references to the CSAA are references to the Act in its form immediately prior to 23 May 2018
[2] The costs of a child are to be met by both parents according to their respective capacity to meet the costs (s35B of the CSAA). The percentage of care is used to assess the extent to which a person is taken to meet a child’s costs through care, as reflected in the relevant cost percentage, see CSAA, s55C
The applicant is the father (DWTR) and the other party is the mother (DNZG) of a son who I shall refer to as Frank.[3] The father and the mother are separated.
[3] Consistent with Child Support (Registration and Collection) Act 1988 (Cth) (CSRCA), s16, no party to these proceedings or any witness will be identified in these reasons
The Tribunal is being asked by the father to review a decision of the Tribunal’s Social Services and Child Support Division made on 14 June 2018 (the AAT first review decision).[4] That decision was made on review of what was, for the purposes of the CSAA, a care percentage decision with respect to Frank. It involved determinations as to each of the mother’s and father’s percentage of care for Frank.
[4] T2
In order to understand what the Tribunal is now being asked to review it is necessary to have some understanding of the procedural and factual background.
PROCEDURAL AND FACTUAL BACKGROUND
Prior to 7 February 2017 the father had been liable to pay family support to the mother, based, in part, on the determined amount of both his and the mother’s percentage of care for Frank.[5]
[5] CSAA, s5: the percentage of care, in relation to a responsible person for a child, means the responsible person’s percentage of care for the child that is determined by the Registrar under Subdivision B of Division 4 of Part 5 of CSAA
In respect of the period 17 August 2011 to 4 December 2016 the percentage of care for Frank attributed to the father was 59%, with that attributed to the mother being 41%.[6]
[6] T46, 99
That apportionment of Frank’s care was apparently consistent with a court order made in 2006.[7] However, as it was said to apply only from 2011, I infer that since 2011 any liability to pay child support in respect of Frank arose from assessments issued under the CSAA (and that, as a result, the court order of 2006 ceased to have effect).[8]
[7] T2, 9
[8] CSAA, s152
On 7 February 2017 the father advised the respondent that Frank had been in his sole care since early December 2016[9] (which the father subsequently clarified as 5 December 2016).[10]
[9] T5, 17
[10] T6, 18
On 8 March 2017 the respondent acted on that advice. It determined that the mother’s percentage of care of Frank was zero while the father’s was 100%.[11] It notified both parents of its reassessment of the amount payable by way of child support[12] reflective of these changed percentages of care.
[11] T9, 21
[12] T11, T12,T13, T14 and T15
As a result, an assessment was issued on 8 March 2017 under which the mother was required to make child support payments to the father with respect to the period commencing on the date on which the father had advised of his having sole care of Frank (7 February 2017).[13]
[13] T15, 39; CSAA, s66D: in making an administrative assessment, the Registrar may act on the basis of the documents and information in his or her possession. The amount payable by way of child support by a person is the amount specified in an assessment issued under CCSA in respect of the person
On 20 November 2017 the mother (as the liable parent under the assessment) objected to the care percentage decision inherent in the assessment.[14] (I address in detail later the issue of the relevant care percentage decision.)
[14] CSRCA, s80A
On 4 April 2018 the objection was disallowed.[15]
[15] T44, 93; CSRCA, s87(1)
On 12 April 2018 the mother sought the Tribunal’s review of the decision to disallow her objection,[16] which resulted in the Tribunal making the AAT first review decision on 14 June 2018.
[16] CSRCA, s89
In that decision the Tribunal decided to set the objection disallowance decision aside and, in effect, reinstate the percentage of care attribution that had applied from 17 August 2011 (that is, 59% to the father and 41% to the mother). It did so, however, only with effect from 20 November 2017[17] thereby preserving the effect of the 8 March 2017 determination with respect to the period 7 February 2017 to 19 November 2017.
[17] T2
Hence, with respect to the period 7 February 2017 to 19 November 2017, the percentage of care attribution was 0% and 100% for the mother and father, respectively. As from 20 November 2017, however, under the AAT first review decision, it was 41% and 59%.[18] This was the case until 29 January 2019 when a stay order was granted in relation to the AAT first review decision, effectively reinstating the 0% and 100% determinations made in March 2017 pending the outcome of this proceeding.[19]
[18] See the respondent’s submission of 4 February 2020
[19] In this regard, I adopt the respondent’s advice of 16 January 2019 and its submission of 4 February 2020 that the effect of granting the stay was to leave the objection disallowance decision in place
This suggests that, pending that outcome, the mother’s percentage of care of Frank has been treated as zero with effect on and from 7 February 2017 until Frank turned 18 in April 2019.[20]
[20] As outlined later in these reasons, when a child turns 18 a child support terminating event occurs for the purposes of the CSAA, s12
Jurisdiction now being exercised
I now have jurisdiction to review the AAT first review decision because it was a decision on review of a care percentage decision.[21]
[21] CSRCA, s96A describes the jurisdiction being exercised by the Tribunal in this proceeding. See the similar analysis in Child Support Registrar v MQMV [2019] FCA 1171 at [28] to [46]
A care percentage decision includes a decision as to the particulars of an administrative assessment, to the extent that the decision involves (wholly or partly) a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the CSAA.[22]
[22] CSRCA, s4(1) definition of “care percentage decision”
The AAT first review decision involved a review of such a decision as it was a review of a decision to disallow an objection and the:
·objection was to particulars of an assessment, especially the particular concerning the mother’s percentage of care and the consequent particulars concerning her cost percentage and the annual, monthly, weekly and daily rate of child care payable.
·assessment in question would appear to have been made under Part 5 of the CSAA (and, as such, constitute an administrative assessment[23]).
·decision involved (given that it affirmed a decision based on) a determination of a person’s percentage of care for a child made under a provision of Subdivision B of Division 4 of Part 5 of the CSAA. That such a determination was made is reflected in a document of 8 March 2017 characterised as a care decision in which it is stated that a result of its implementation, in relation to the mother, is “0 nights per year (0%).”[24] I infer from that document that a determination under s49 of the CSAA (being a provision of Subdivision B of Division 4 of Part 5 of the CSAA) was made on the basis that the mother was considered not then to have had, and to be not then likely to have had, a pattern of care for Frank.
[23] CSAA, s5(1)
[24] T9, 21; noting that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period CSAA, s54A
ISSUE IN CONTENTION
It seems clear that, in applying for review of the AAT first review decision, the father is not troubled by the aspect of it which has it only taking effect on 20 November 2017. Preserving the effect of the 8 March 2017 determination for the period 7 February 2017 to 19 November 2017 had 100% of Frank’s care being attributed to him for that period. What troubled the father was the aspect of the AAT first review decision which had his percentage of care reducing to 59% on and from 20 November 2017.[25] The father maintains that after 19 November 2017, his care percentage in relation to Frank was 100%.
[25] In a submission made after the hearing of this proceeding, the respondent contended that the AAT first review decision did not involve a finding about the percentage of Frank’s care that applied after 5 December 2017. At the same time, however, the respondent submitted that the AAT first review decision was operative prior to a stay order of 29 January 2019
The mother accepts the father’s contention that his percentage of care of Frank after 19 November 2017 was 100%. What troubles her, however, is the attribution of Frank’s care in the 6 February 2017 to 20 November 2017 period. She maintains that her percentage of care of Frank in that period was consistent with that attributed to her since 2011, that is, 41%.[26] The father disputes this.
[26] T23, 56
Hence, the issue in contention between the parties revolves around the percentage of Frank’s care that ought properly be attributed to the mother with respect to the 6 February 2017 to 20 November 2017 period.
Most of the material submitted by the parties in advance of the hearing of this matter, and much of the evidence they adduced at the hearing, was directed to this issue. I indicated at the start of the hearing, however, that this might not have been an issue which the Tribunal can or should address. On reflection, this proved to be the case.
In essence, for me to now address the issue in contention between the parties I would need to conclude that my decision (unlike the AAT first review decision) can, and should, be able to take effect in the period to which that issue relates, that is, a period commencing on 6 February 2017.
I have concluded, however, that my decision cannot and, in any event, should not take effect earlier than the date of effect of the AAT first review decision, 20 November 2017.
Date of effect
The reason that the AAT first review decision was expressed to take effect on 20 November 2017 was that the decision then the subject of review by the Tribunal (the objection disallowance decision of 4 April 2018) would also have taken effect on that date had the mother’s objection been allowed, rather than disallowed.
As the mother had lodged her objection more than 28 days after service of notice of the relevant care percentage decision,[27] any decision to allow the objection could not have been backdated to a date earlier than the date on which the mother lodged her objection (20 November 2017), absent special circumstances that prevented the mother from lodging her objection within that 28 day period.[28]
[27] CSRCA, s87AA(1)
[28] CSRCA, s87AA(2)
In making the AAT first review decision, the Tribunal, then operating under the same constraints as those that bound the person who made the objection disallowance decision,[29] also could not backdate its decision so as to take effect at a time earlier than the date on which the mother’s objection was lodged absent such special circumstances. In this regard, it decided that there were no such circumstances.[30]
[29] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14]-[15] per Kiefel CJ, Keane and Nettle JJ it was said that the Tribunal is “…not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision...” See also Frugtniet at [51] per Bell, Gageler, Gordon and Edelman JJ it was said that the Tribunal “…exercises the same power or powers as the primary decision-maker, subject to the same constraints.”
[30] T2, 12
As for the decision I now make, it cannot take effect before the AAT first review decision took effect (20 November 2017)[31] unless I find that there are special circumstances that prevented the mother from lodging her objection within 28 days of service of notice of the relevant care percentage decision, and I make an order to the contrary.
[31] See GWNS and Child Support Registrar & Anor [2016] AATA 576 at [42] in which it was decided, in exercise of the jurisdiction being exercised in this proceeding, that the Tribunal decision took effect on the date of lodgement of the relevant objection.
There would need to be such special circumstances in order for me now to make a decision that had effect before 20 November 2017 because I am subject to the same decision-making constraints as bound the decision-maker who made the decision I am reviewing (the Tribunal when it made the AAT first review decision).
Moreover, I would need to make an order to the contrary in order for me now to make a decision that has effect before 20 November 2017 because, under s43(6) of the Tribunal’s constituent legislation, a Tribunal decision takes effect when the relevant decision under review has effect unless the Tribunal otherwise orders.[32]
[32] Administrative Appeals Tribunal Act 1975, s43(6)
Special circumstances
Before the Tribunal on first review the mother apparently stated that there were no “special” circumstances, albeit that 2017 was said by her to be a very stressful year.[33]
[33] T2, 12
When in November 2017 she was eventually contacted about the care percentage decision made in March 2017, however, she stated that there were special circumstances. The circumstance she relied upon was that she had not received “the letter” advising her of the care percentage decision[34] as she had moved and had not provided updated details of her residential address to the respondent.[35]
[34] Presumably, the letter set out at T14
[35] T23, 56
While the concept of “special circumstances” is one incapable of precise definition,[36] it encompasses something different from the usual or ordinary.[37] In other contexts where the capacity to exercise a discretion is made conditional on there being special circumstances, it has been said that, for circumstances to be special, they must be such as to make it desirable or appropriate to exercise the relevant discretion,[38] having regard to the objects of, and the general administration of the system provided for, in the relevant legislation.[39]
[36] Re Beadle (1984) 6 ALD 1, 3
[37] Groth v Secretary, Department of Social Security (1995) 40 ALD 541, 545
[38] Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114 at [80]
[39] Ibid; Re Ivovic and Director-General of Social Services (1981) 3 ALN N61
The mother was given, and took up, the opportunity to lodge with the Tribunal after the hearing of this matter a written submission addressing the special circumstances issue. In essence, the mother submitted that there were special circumstances, on the basis that:
·she had not received any letter notifying her of any proposed change in her percentage of care of Frank, noting that she had moved house on 14 February 2017;
·her landline phone number had been disconnected on 13 February 2017 as part of her having moved house so that any calls to her on that number would then have been unsuccessful;
·she did not receive any telephone messages from the respondent sent to her mobile phone number; and
·February 2017 was chaotic for her as both her granddaughter and her husband were unwell.
The CSRCA provisions which prevent a successful but delayed objection to a care percentage decision from having effect prior to lodgement of the objection evince a clear legislative intention designed to encourage the prompt commencement of proceedings seeking to overturn such decisions.
The circumstances identified by the mother (considered in light of the additional circumstances which I will outline shortly) are not “special” in the sense that they render it appropriate to not give effect to that legislative intent in the circumstances. Moreover, allowing potentially extensive backdating of determinations due principally to a failure of affected parties to keep the respondent apprised of up to date contact details might well severely adversely affect the proper administration of the system provided for in the CSRCA.
Even if, however, those circumstances are special, I am not satisfied that the resultant residual discretion to increase the extent of permissible backdating ought now be exercised.
Several letters of relevance were sent to the mother. By letter dated 13 February 2017 she was asked to contact the respondent as the percentage of care of Frank attributed to her might be changed, given advice received from the father.[40] She did not respond. By letter dated 8 March 2017 the mother was advised of the respondent’s determination to change that percentage of care,[41] and a child care assessment of that date was sent to her reflecting that change in percentage of care.[42] Again, she did not respond.
[40] T9
[41] T12, 29
[42] T14, T15
The address used in the correspondence to her would appear from material submitted by the respondent to have been the one of which the mother had last given the respondent notice. As such, that address was her address for service.[43] If, as the mother contends, she changed her address, it was her responsibility to apprise the respondent of the change.
[43] Child Support (Assessment) Regulations 1989, r11B: “The address last notified by a person to the Registrar as the address for service of the person is, for all purposes under the Act and Regulations, that person’s address for service.” These were the Regulations in force in 2017
Not only did the mother fail to respond to correspondence from the respondent concerning the change in the percentage of Frank’s care attributed to her, she failed to respond to several telephone messages left in February 2017 (using numbers provided by the mother to the respondent) requesting that she call the respondent.
The mother asserts that she did not receive any such telephone messages. On balance, however, I find that three such messages were sent and received. This is consistent with the respondent’s file notes[44] and with the mother’s statement in her submission that “I thought they were spam calls from blocked numbers”.
[44] T6, 18; T8, 20
Hence, I find that the mother’s failure to have lodged her objection to the March 2017 determination in a timely manner was a consequence of her having failed to meet her responsibility to notify the respondent of up-to-date contact details and to respond to several telephone messages. As I have already concluded, these matters do not constitute special circumstances or, in any event, circumstances that warrant an exercise of the discretion afforded by s87AA(2) of the CSRCA to increase the extent of permissible backdating.
As an aside I note that it was not simply a failure to give notice of her change of address “on the day I moved house” as the mother, in her submission, would have it. Nor is it a matter of the month of February 2017 being chaotic.
The failure of the mother to have notified the respondent of her change of address and to have responded to the telephone messages asking her to call the respondent is only material in this proceeding because it was protracted. Indeed, the respondent would only appear to have become aware of the February 2017 change in the mother’s home address when an officer of the respondent contacted the mother by telephone on 18 November 2017 to inquire into child support payment arrears.[45]
[45] T16, 42
Order to the contrary
The power of the Tribunal under s43(6) of its constituent legislation to, by order, specify a date of effect of a decision other than the date of effect of the decision under review is facultative and remedial in nature.[46] As such, it ought be construed to afford “the fullest relief which the fair reading of its language will allow”.[47] Problems in application of the legislation concerned cannot, however, be overcome by “the invocation of generalities about beneficial construction.”[48]
[46] Lighthouse Philatelics v Federal Commissioner of Taxation (1991) 103 ALR 156 at 165
[47] Bull v Attorney General (1913) 17 CLR 370
[48] Roncevich v Repatriation Commission (2005) 222 CLR 115
In this proceeding, the “problem” which an application of the power to otherwise order might be said to overcome is that the Tribunal is unable to review care percentage decisions effectively insofar as they operate prior to (the delayed) lodgement of an objection. This, however, is not a problem. It is, instead, a reflection of the legislature’s intent.
In particular, an order under s43(6) of the Tribunal’s constituent legislation so as to enable my decision to take effect prior to the mother’s lodgement of her objection would fly in the face of the clear legislative intention to which I previously referred.
Moreover, it is, in any event, not clear to me that I have the power to make such an order, bound (as I am) by the constraints that bound the Tribunal when making the AAT first review decision.
As I identified earlier, one of those constraints concerned the date of effect of a decision overturning a care percentage decision. When an objection to such a decision is lodged more than 28 days after notice of it is given, it cannot take effect prior to lodgement of the objection absent special circumstances. Here, as I have concluded, there are no special circumstances.
Result of 20 November 2017 date of effect
I need now to determine the correct or preferable care percentage decision, having regard to the fact that my decision will only have effect from 20 November 2017.
In making that determination the questions in issue are a function of the provisions which confer on the respondent (and the Tribunal standing in the shoes of the respondent) the power to make determinations as to a person’s percentage of care of a child.
Given that there is no material before me suggestive of what is defined in the CSAA as a care arrangement, those provisions are to be found in ss49 and 50 of the CSAA.
If I decide that the mother has not had and is not likely to have a pattern of care for Frank in the care period, then under s49 her percentage of care for Frank must be determined to be zero.
If I decide, however, that the mother has had, or is likely to have, a pattern of care for Frank during the care period, then under s50 her percentage of care for Frank must be determined to be the one that corresponds with the actual care of Frank that I am satisfied that she has had, or is likely to have, during the care period.
Given the terms of those provisions the questions in issue are:
·what is the period (or what are the periods) I consider in all the circumstances to be appropriate, that is, what is to be the care period (or what are to be the care periods);
·has the mother had, or is she likely to have, a pattern of care for Frank during that care period (or those care periods); and
·if so, what percentage corresponds with the actual care of Frank that I am satisfied that the mother has had, or is likely to have, during that care period (or those care periods).
The care period
In all the circumstances I consider that the care period is the period commencing on 20 November 2017 and ending on or around the date when Frank turned 18 in April 2019.
It is appropriate:
·To start the care period on 20 November 2017 given that my decision in this proceeding will not take effect before then. Starting that period on that date is also appropriate as there was a material change in Frank’s care that occurred on or around that date. Evidence from both the father and the mother was to the effect that, leading up to that date, the mother had some care of Frank[49] but, thereafter, she had none.[50] In this regard, as recognised by the respondent,[51] it is appropriate to commence (and end) a care period upon a change of significance in the relevant child’s care.[52]
·To end the care period on or around Frank’s 18th birthday as child support generally ceases to be payable on the day before the day on which a “child support terminating event” happens.[53] A child turning 18 is such an event.[54]
·That there be a single care period in the November 2017 to April 2019 period. There is no material before me indicative of any material change in the actual care of, or “pattern of care” (a concept I address later) relating to, Frank that occurred within that period.
[49] Mother at T24, 58; Father at T26, 60
[50] See, for example, the description of evidence in the reasons of the Tribunal in connection with the AAT first review decision from the mother (T2, 9[14]; T2, 11[22]) and from the father (T2, 10[17])
[51] T44,85
[52] Parent A and Child Support Registrar [2013] AATA 562 at [35] where it is said that “[t]o my mind, the conception of ‘care period’ is sufficiently broad to encompass recurrent cycles or patterns of care for a child. It may commence or end upon a change of significance in the actual care of the child, whereby an existing arrangement or pattern of care for the child is broken or changed. The duration of a period of care is to be determined having regard to all the circumstances.” See also VGLV and Child Support Registrar (Child Support Second Review) [2019] AATA 1097 at [7]: “It is appropriate for actual care to be taken into account only for the period up until the date on which the pattern of care changed”.
[53] CSAA, s31(2)
[54] CSAA, s12
I appreciate that the Child Support Guide[55] suggests that a care period should generally be a 12 month period and that the Tribunal should apply government policy absent a cogent reason to the contrary.[56]
[55] Version 4.45 - Released 2 January 2020
[56] Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
However, in this matter we are only dealing with the past (so that there is no need for flexibility to deal with potential, future changes) and there is no material before me suggestive of a specific, measurable change in care arrangements in the care period I have proposed.
After the hearing the respondent made a submission which appeared to be about the Tribunal’s jurisdiction (although this was not clear). The respondent contended that it would be inappropriate for the Tribunal now to make a decision having effect in the period from November 2017 to April 2019. The proposition underlying this submission appeared to be that the AAT first review decision was about a 12 month period ending on 4 December 2017, and, as a result, any decision now about care percentages that applied in a later period would be an initial decision, not a decision on review.
I reject that submission.
First, the AAT first review decision had effect well beyond 4 December 2017. Indeed, the respondent states in the relevant submission that the AAT first review decision was operative prior to a stay order in January 2019. This is consistent with the fact that the percentage of care specified in a care percentage determination made under the CSAA generally applies until revoked.[57] Hence, in now making a decision as to care percentages applicable in that period I am not (as the respondent would have it) making an initial decision.
[57] CSAA, s54B(1A)
Second, identification of the appropriate care period was a matter before the Tribunal when making the AAT first review decision. Standing in the shoes of the respondent, it was empowered to determine the appropriate care percentages with respect to Frank during the period it considered to be appropriate, ie, during the care period.[58] It selected a 12 month care period commencing on the date on which the change in care arrangements was said by the father to have occurred. I presume that a 12 month period was selected because it is said in the Child Support Guide that a care period ought generally be of 12 months duration. Regardless of the reason for selection of that period, however, the matter of the appropriate care period was a matter before the Tribunal when making, and comprised part of, the AAT first review decision. As such, it is a matter that the Tribunal now has jurisdiction to deal with.[59]
[58] CSAA, ss49(1) and 50(1)
[59] CSRCA, s96A
Thirdly, it is a matter I should now deal with. Adoption of the respondent’s submission would result in a Tribunal decision which had effect for a mere 15 days. A decision so limited would hardly promote public trust and confidence in the Tribunal’s decision-making.[60] It would leave the issue as to the percentages of care of Frank in the period 5 December 2017 to 14 April 2019 unresolved in circumstances where both the mother and father agree what those percentages of care should be in that period.
[60] Administrative Appeals Tribunal Act 1975, s 3A
Mother’s pattern of care in the relevant period
I turn now to the second question in issue, whether the mother had, or was likely to have, a pattern of care in the care period. As to that question, I find that the mother did not have a pattern of care for Frank during the care period I have selected.
The pattern of care concept is not defined in the legislation. In essence, however, it would seem to be constituted by a flexible form or sequence of events with respect to a child’s care on which a prediction of future events might be based.[61] In considering a person’s pattern of care, the actual care of the child in question in the relevant care period must be considered.[62]
[61] Parent A and Child Support Registrar [2013] AATA 562 at [33]
[62] NHVK and Secretary, Department of Social Services (Child support second review) [2019] AATA 78 at [46]
As I previously stated, evidence from both the father and the mother was to the effect that, during the period I have found to be the care period, there was no form or sequence of events involving the mother’s care of Frank. In that period, the mother’s actual care of Frank had ceased.[63] Instead, the father was in sole, actual, care of Frank. The evidence of the father and the mother in this regard is consistent with the evidence of Frank’s siblings.[64]
[63] See, for example, the description of evidence in the reasons of the Tribunal in connection with the AAT first review decision from the mother (T2, 9[14]; T2, 11[22]) and from the father (T2, 10[17])
[64] Brother email lodged 26 November 2018; other brother email lodged 25 November 2018; third brother email lodged 7 December 2018; sister email lodged 10 December 2018
Conclusion in relation to care
As I have decided that the mother did not have a pattern of care for Frank in the period which I consider to be appropriate as the care period, s49 of the CSAA dictates that her percentage of care for Frank ought be determined to be zero during that period.[65]
[65] CSAA, s49(3)
On the other hand, as the father was then in sole, actual, care of Frank, his percentage of care for Frank during the care period ought be determined under s50 of the CSAA to be 100%.[66]
[66] CSAA, s50(3)
Determinations reflective of these percentages of care could not, however, commence to apply until immediately after the revocation of the existing determinations under certain provisions of the CSAA.[67]
[67] CSAA, s54B(1A)
Indeed, in making new percentage of care determinations in March 2017, the respondent had to have revoked pre-existing percentage of care determinations. I infer that it did so. I infer this from the requirement to have done so which I mentioned earlier (giving rise to a “presumption of regularity”[68]), the fact that the new determinations were expressed only to take effect from the date the father notified the respondent of his contention that he had 100% care of Frank (suggestive of revocation of pre-existing determinations under s54F CSAA[69]) and the fact that, in making the AAT first review decision, the Tribunal set aside the objection determination decision and, in substitution, decided not to revoke the then existing care percentage determinations.
[68] Ousley v R (1997) 148 ALR 510 at 555 where Gummow J stated that where "acts are of an official nature...everything is presumed to be rightly and duly performed until the contrary is shown”.
[69] See CSAA, s54F(3)(b)(i)
This conclusion says nothing as to the mother’s percentage of care of Frank in any period other than the period which I consider to be appropriate as the care period. In particular, it says nothing as to her percentage of care of Frank in the period between February 2017 and mid-November 2017. As I have concluded, I either cannot or should not make a care percentage decision with effect in relation to that period.
DECISION
I decide to set the AAT first review decision aside and remit the matter to the respondent for reconsideration in accordance with a direction that, having regard to all the circumstances, a period as is appropriate as the care period is the period commencing on 20 November 2017 and ending on 14 April 2019, that the mother had no pattern of care for Frank during that period, that the father did have a pattern of care for Frank during that period and that Frank was in the sole, actual, care of the father in that period.
75. I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member C.J. Furnell
[sgd].............................................................
Associate
Dated: 20 February 2020
Date of hearing: 16 January 2020 Applicant: Self-represented Advocate for the Respondent: Mr Tim Noonan Solicitors for the Respondent: Department of Human Services Other Party: Self-represented
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