GCKN and Child Support Registrar (Child support second review)

[2021] AATA 375

GCKN and Child Support Registrar (Child support second review) [2021] AATA 375 (4 March 2021)

Division:GENERAL DIVISION

File Number:          2020/4099

Re:GCKN

APPLICANT

AndChild Support Registrar

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date:4 March 2021

Place:Melbourne

The Tribunal varies the decision under review by changing the reference to the date of effect of the new care percentage determination from “15 May 2018” to “4 May 2018”.

.......[sgd].................................................................

Member K. Parker

The name of the Applicant has been replaced with a pseudonym and any identifying information has been 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 (Cth).

Catchwords

CHILD SUPPORT – date of effect of new care percentage determination – notice of change of care given more than 28 days after date of determination – no discretion to ignore operation of relevant “date of effect” provisions – minor factual error in finding of date upon which the Applicant gave notice of change of care – decision varied to correct minor factual error

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

REASONS FOR DECISION

Member K. Parker

4 March 2021

1. This case involves a discrete issue about what date of effect applies to a new care percentage determination made in respect of the Applicant’s, GCKN’s, child (Child) for the purpose of calculating child support payments.

2. The Child’s mother applied for child support on 10 December 2014 claiming that she cared for the Child 100 percent of the time. The Child Support Registrar (CSR) made a care percentage determination to the effect that GCKN had zero percent care and the Child’s mother had 100 percent care (care percentage determination).[1]

   [1] Refer T-Documents T46/160. The T-Documents are a set of documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

3. It was not until some three and half years later that GCKN contacted the Child Support Agency (CSA) about a debt that had accrued to him in respect of child support. He did so by letter that is date-stamped 4 May 2018.[2] GCKN claimed that the debt was incorrectly raised against him and that the Child had been living with him and not the Child’s mother. GCKN sent an email to the Respondent providing notice of same on 15 May 2018.[3]

   [2] Refer T-Documents T4/66.

   [3] Refer T-Documents page 72.

4. Initially, the Child’s mother raised a challenge to GCKN’s assertions about the percentage of care of the Child claiming, on 28 May 2018, that she had 100 percent care of the Child.[4] An authorised officer was not satisfied that there was sufficient evidence to revoke the previous care percentage determination and, on 10 July 2018, refused to do so.

   [4] Refer T-Documents T14/78.

5. Again, considerable time passed before, on 1 May 2019, GCKN objected to the authorised officer’s decision.[5]

   [5] Refer T-Documents T28-29/100-101.

6. On 25 September 2019, an objections officer decided to make a new care percentage determination that, as from 10 January 2015, GCKN had 100 percent care and the Child’s mother had zero percent care of the Child (new care percentage determination). The objections officer decided that the date of effect of the new care percentage determination was the date upon which the objection officer considered that GCKN had first provided notice of the change of care to the CSA. The objections officer mistakenly took this to be 15 May 2018, instead of 4 May 2018.[6]

   [6] This confusion is understandable as GCKN provided notice twice, once by letter received on 4 May 2018 and again, by email dated 15 May 2018.

7. The reason that the objections officer found that the date of effect was the date upon which GCKN provided notice to the CSA of the change in care was because this notice was not provided within 28 days after the date of the percentage care determination as required under the legislation.

8. It is not in dispute between the parties that GCKN had 100 percent of the care of the Child as from 10 January 2015. The Child’s mother was invited to participate in the proceedings before the Administrative Appeals Tribunal, but she declined to do so. GCKN does not dispute that he first gave notice of his objection to the existing care percentage determination on 4 May 2018. The only issue in this application before this Tribunal relates to the date of effect of the new care percentage determination as made by the objection officer, and as subsequently affirmed by the Child Support and Social Services Division of the Administrative Appeals Tribunal (AAT1) upon “first tier” review.

9. The CSR’s legal representative contends that the date of effect of the new care percentage determination is governed by the operation of ss 54F(2)(c) and 54B of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act).[7] The Tribunal agrees. Those provisions clearly establish that, in the circumstances of this application, unless GCKN gave notice of the change of care within 28 days following the new care percentage determination (which he did not), the date of effect of such determination is taken to be the day upon which the notice of change of care was given.

   [7] As those provisions were enacted prior to amendments made in 2018.

10. There are no exceptions in the legislation to the operation of these provisions. This means this Tribunal does not have discretion to change the operation of these provisions in GCKN’s case and to allow for a different finding to be made as to when the new care percentage determination should take effect.

11. The Tribunal understands that GCKN may be frustrated by this outcome, particularly as there have been many years where he has accrued a child support liability where the Child has been in his care 100 percent of the time. However, it matters not what the reasons were for why GCKN left it for as long as he did to notify CSA of the change of care, because the Tribunal has no power to change the operation of the relevant legislation. These provisions operate mechanically and absolutely.

    CONCLUSION

12. The Tribunal finds that GCKN notified the CSA of the change in care on 4 May 2018, and not on 15 May 2018. For this reason, the Tribunal varies the decision under review (being the AAT1 decision which affirmed the objection officer’s decision) by changing the date of effect of the new care percentage determination from 15 May 2018 to 4 May 2018.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

.......[sgd].................................................................

Associate

Dated: 4 March 2021

Date of hearing:	26 February 2021
Applicant:	By telephone
Advocate for the Respondent:	Mr Karwan Eskerie, Sparke Helmore Lawyers